MEMY-1805 marker2 court-redacted-v-maxwell-07433 (salt 4090): 10000/10065

marker2/court-redacted-v-maxwell-07433/EFTA02801673/EFTA02801673.md

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+UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+X
+
+Plaintiff,
+
+15 Civ. 7433 (RWS)
+
+- against -
+
+ORDER
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+Sweet, D.J.
+
+USDC SDNY  
+DOCUMENT  
+ELECTRONICALLY FILED  
+DOC #:   
+DATE FILED: 11/2/17
+
+Plaintiff's motions in limine shall be heard at noon on Thursday, February 2, 2017 in Courtroom 18C, United States Courthouse, 500 Pearl Street. All papers shall be served in accordance with Local Civil Rule 6.1.
+
+It is so ordered.
+
+New York, NY
+
+January r/ , 2017 ERT W. SWEET U.S.D.J.

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marker2/court-redacted-v-maxwell-07433/EFTA02801674/EFTA02801674.md

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+## UNITED STATES DISTRICT COURT
+
+for the
+
+Southern District of New York
+
+PlamhOr
+
+v. ) Case No. 15cv7433 (RWS)
+
+Ghislaine Maxwell
+
+Defendant
+
+## APPEARANCE OF COUNSEL
+
+To: The clerk of court and all parties of record
+
+I am admitted or otherwise authorized to practice in this court, and I appear in this case as counsel for:
+
+Non-Party
+
+Date: 01/17/2017 s/ Alexander S. Lorenzo
+
+Attorney's signature
+
+Alexander S. Lorenzo
+
+Printed name and bar number
+
+Alston 8. Bird LLP
+
+90 Park Avenue
+
+New York, NY 10016
+
+Address
+
+alexanderlorenzo©alston.com
+
+E-mail address
+
+(212) 210-9400
+
+Telephone number
+
+(212) 210-9444
+
+FAX number

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marker2/court-redacted-v-maxwell-07433/EFTA02801675/EFTA02801675.md

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+UNITED STATES DISTRICT COURT  
+SOUTHERN DISTRICT OF NEW YORK
+
+-----X
+
+[REDACTED],
+
+Plaintiff,
+
+15 Civ. 7433 (RWS)
+
+- against -
+
+O R D E R
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+-----X
+
+![](_page_0_Picture_100.jpeg)
+
+Sweet, D.J.
+
+Defendant's motions in limine shall be heard at noon on Thursday, February 2, 2017 in Courtroom 18C, United States Courthouse, 500 Pearl Street. All papers shall be served in accordance with Local Civil Rule 6.1.
+
+It is so ordered.
+
+New York, NY  
+January 18, 2017
+
+![]()

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marker2/court-redacted-v-maxwell-07433/EFTA02801676/EFTA02801676.md

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+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+----------- ------------- --------- x VIRGINIA L. GUIFFRE, Plaintiff, -against-GHISLAINE MAXWELL, NOTICE OF APPEARANCE Defendant. ------------------- ----------- ----- --x
+
+Case No.: 15-cv-7433 (RWS)
+
+## OF COUNSEL
+
+PLEASE TAKE NOTICE that Jay M. Wolman of Randazza Legal Group, PLLC, is admitted to practice in this court and hereby enters his appearance in this action as counsel for Proposed Intervenor Michael Cemovich d/b/a Cemovich Media and requests that all pleadings and papers in this action be served upon the undersigned.
+
+Dated: January 19, 2017. Respectfully submitted,
+
+/s/ Jay Al. Wolman Jay M. Wolman (JW0600) RANDAZZA LEGAL GROUP, PLLC 100 Pearl Street, 14i° Floor Hartford, CT 06103 Tele: 702-420-2001 Fax: 305-437-7662 Email: ecf@randazza.com
+
+Attorneys for Proposed Intervenor, Michael Cernovich d/b/a Cernovich Media
+
+CASE NO. 15-cv-7433 (RWS)
+
+## CERTIFICATE OF SERVICE
+
+I HEREBY CERTIFY that on this 19th day of January 2017, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that a true and correct copy of the foregoing document is being served via transmission of Notices of Electronic Filing generated by CM/ECF.
+
+Respectfully submitted,
+
+Is/ Jay M. Wolman
+
+Jay M. Wolman

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marker2/court-redacted-v-maxwell-07433/EFTA02801678/EFTA02801678.md

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+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+-------------------- ------------- -------- -x VIRGINIA L. GUIFFRE, Plaintiff, Case No.: 15-cv-7433 (RWS) -against-GHISLAINE MAXWELL, Defendant. ------------------- -------
+
+## NOTICE OF MOTION
+
+PLEASE TAKE NOTICE THAT, upon the pleadings and papers in the matter, the accompanying Memorandum of Law, and the Declaration of Michael Cernovich, Proposed Intervenor Michael Cernovich ("Cernovich") d/b/a Cernovich Media ("Movant" or "Intervenor") respectfully moves and seeks leave to intervene in the above captioned matter, pursuant to Fed. R. Civ. P. 24(b), and requests that the Court unseal and make public and unredacted Defendant Ghislaine Maxwell's Memorandum of Law in Support of Defendant's Motion for Summary Judgment (ECF No. 541), Declaration of Laura A. Menninger in Support of Defendant's Motion for Summary Judgment (ECF No. 542) and all exhibits annexed thereto, and any and all other notices, pleadings, memoranda, declarations, exhibits, orders, and other documents filed or to be filed under seal in relation to Defendant's Notice of Motion for Summary Judgment (ECF No. 540). Sealing these documents violates the rights of the press and of the people at large, as guaranteed to them under the First Amendment and long-standing traditions of common law Movant will move this Court for such an order before the Honorable Robert W. Sweet, United States District Judge, in the Daniel Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, at 12:00 noon on Thursday, February 16,2017, or as soon thereafter as counsel may be heard, together with such other and further relief as this Court deems just and proper.
+
+PLEASE TAKE NOTICE that opposition papers, if any, shall be served in accordance with
+
+Local Civil Rule 6.1.
+
+Dated: January 19, 2017. Respectfully Submitted,
+
+/s/ Jay M. Wolman
+
+Jay M. Wolman (JW0600)
+
+RANDAZZA LEGAL GROUP, PLLC
+
+100 Pearl Street, 14th Floor
+
+Hartford, CT 06103
+
+Tele: 702-420-2001
+
+Fax: 305-437-7662
+
+Email: ecf®randazza.com
+
+Attorneys for Movant/Putative Intervenor,
+
+Cernovich Media
+
+## CERTIFICATE OF SERVICE
+
+I HEREBY CERTIFY that on January 19, 2017, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I further certify that a true and correct copy of the foregoing document being served via transmission of Notices of Electronic Filing generated by CM/ECF.
+
+Respectfully Submitted,
+
+/s/ Jay M. Wolman
+
+Jay M. Wolman

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marker2/court-redacted-v-maxwell-07433/EFTA02801681/EFTA02801681.md

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+#### UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+-------------------- ------------- -------- -x VIRGINIA L. GUIFFRE, Plaintiff, -against-GHISLAINE MAXWELL, Defendant. x
+
+Case No.: 15-cv-7433 (RWS)
+
+# MEMORANDUM OF LAW IN SUPPORT OF PROPOSED INTERVENOR MICHAEL CERNOVICH D/B/A CERNOVICH MEDIA'S MOTION TO INTERVENE AND UNSEAL
+
+#### TABLE OF CONTENTS
+
+|       | TABLE OF AUTHORITIES MEMORANDUM OF LAW                                   | III 1 |
+|-------|--------------------------------------------------------------------------|-------|
+| 1.0   | CERNOVICH MEDIA MAY PROPERLY INTERVENE                                   | 2     |
+| 2.0   | ANALYSIS                                                                 | 3     |
+| 2.1   | Historical and Constitutional Presumptions.                              | 3     |
+| 2.1.1 | Common Law Right to Access                                               | 4     |
+| 2.1.2 | The First Amendment Compels Access                                       | 5     |
+| 2.2   | Standard for Sealing a Court Record                                      | 6     |
+| 2.2.1 | The Compelling Reason Standard Applies to the Documents at Issue         | 7     |
+| 2.2.2 | The Parties Have Provided Neither a "Compelling Reason" nor "Good Cause" |       |
+|       | to Seal the Summary Judgment Documents                                   | 8     |
+| 2.2.3 | Movant's Motion is Distinct from Prof. Dershowitz's                      | 9     |
+| 3.0   | CONCLUSION                                                               | 10    |
+
+## TABLE OF AUTHORITIES
+
+## CASES
+
+| <i>AT &amp; T Corp. v. Sprint Corp.,</i> <p>407 F.3d 560 (2d Cir. 2005).....</p>                                  | 2             |
+|-------------------------------------------------------------------------------------------------------------------|---------------|
+| <i>Bernstein v. Bernstein Litowitz Berger &amp; Grossmann LLP,</i> <p>814 F.3d 132 (2d Cir. 2016).....</p>        | <i>passim</i> |
+| <i>Craig v. Harney,</i> <p>331 U.S. 367 (1947).....</p>                                                           | 1             |
+| <i>E.E.O.C. v. Nat'l Children's Ctr., Inc.,</i> <p>146 F.3d 1042 (D.C. Cir. 1998).....</p>                        | 2             |
+| <i>E*Trade Fin. Corp. v. Deutsche Bank AG,</i> <p>582 F. Supp. 2d 528 (S.D.N.Y. 2008) .....</p>                   | 4             |
+| <i>Globe Newspaper Co. v. Superior Court,</i> <p>457 U.S. 596 (1982).....</p>                                     | 6             |
+| <i>Hartford Courant Co. v. Pellegrino,</i> <p>380 F.3d 83 (2d Cir. 2004).....</p>                                 | 5, 6          |
+| <i>In re Continental Ill. Secs. Litig.,</i> <p>732 F.2d 1302 (7th Cir. 1984) .....</p>                            | 5             |
+| <i>In re Iowa Freedom of Info. Council,</i> <p>724 F.2d 658 (8th Cir. 1983) .....</p>                             | 5             |
+| <i>In re NASDAQ Mkt.-Makers Antitrust Litig.,</i> <p>164 F.R.D. 346 (S.D.N.Y. 1996) .....</p>                     | 3             |
+| <i>In re Orion Pictures Corp.,</i> <p>21 F.3d 24 (2d Cir. 1994).....</p>                                          | 6             |
+| <i>In re Pineapple Antitrust Litig.,</i> <p>2015 U.S. Dist. LEXIS 122438 (S.D.N.Y. Aug. 7, 2015).....</p>         | 3             |
+| <i>Katzman v. Victoria's Secret Catalogue,</i> <p>923 F. Supp. 580 (S.D.N.Y. 1996) .....</p>                      | 6             |
+| <i>Kelly v. City of New York,</i> <p>2003 U.S. Dist. LEXIS 2553, 2003 WL 548400 (S.D.N.Y. Feb. 24, 2003).....</p> | 3             |
+| <i>Louis Vuitton Malletier, S.A. v. My Other Bag, Inc.,</i> <p>156 F.Supp.3d 425 (S.D.N.Y. 2016) .....</p>        | 10            |
+
+| Lugosch v. Pyramid Co.,                                                                              |             |
+|------------------------------------------------------------------------------------------------------|-------------|
+| 435 F.3d 110 (2d Cir. 2006) Maryland v. Baltimore Radio Show, Inc.,                                  | 7           |
+| 338 U.S. 912 (1950) 1V. Y. Civ. Liberties Union v. N.Y.C. Transit Auth.,                             | 4           |
+| 684 F.3d 286 (2d Cir. 2011) v. Graddick,                                                             | 5           |
+| 696 F.2d 796 (11th Cir. 1983) Newsday LLC v. Cty. of Nassau,                                         | 5           |
+| 730 F.3d 156 (2d Cir. 2013) Nixon v. Warner Communications,                                          | 7           |
+| 435 U.S. 589 (1978) NML Capital, Ltd. v. Republic of Arg.,                                           | 4           |
+| 2014 U.S. Dist. LEXIS 173780 (D. Nev. Dec. 12, 2014) Press-Enter. Co. v. Superior Court,             | 3           |
+| 478 U.S. 1 (1986) Publicker Indus., Inc. v.                                                          | 5           |
+| 733 F.2d 1059 (3d Cir. 1984) Richmond Newspapers v. Virginia,                                        | 5           |
+| 448 U.S. 555 (1980) Rushford v. New Yorker Magazine, Inc.,                                           | 4, 5, 6     |
+| 846 F.2d 249 (4th Cir. 1988) Schiller v. City of N.Y.,                                               | 5           |
+| 2006 U.S. Dist. LEXIS 70479 (S.D.N.Y. Sep. 27, 2006) SEC v. TheStreet.com,                           | 3           |
+| 273 F.3d 222 (2d Cir. 2001) Suen v. Las Vegas Sands, Inc.,                                           | 6           |
+| District Court, Clark County, Nevada, Case No. A493744-C (Apr. 16, 2013) United States v. Amodeo 11, | 4           |
+| 71 F.3d 1044 (2d Cir. 1995) United States v. Burr,                                                   | 5, 7, 9, 10 |
+| 25 F. Cas. 1 (No. 14,692) (CC Va. 1807)                                                              | 5           |
+
+## RULES
+
+#### MEMORANDUM OF LAW
+
+Michael Cernovich ("Cernovich") d/b/a Cemovich Media ("Movant" or "Intervenor") is a lawyer, author, documentary filmmaker, author, and host of the Mike Cernovich Podcast. See Declaration of Michael Cernovich ("Declaration") at ¶ 3. His broadcasts on Periscope have over 63,000 subscribers and 13 million "likes", and are watched by tens-of-thousands of people per episode.' See id. at ¶ 4. His Twitter account, in which he reports on news and provides opinion, has nearly 200,000 followers and reaches millions monthly. See id. at ¶ 8.
+
+Part of Cernovich Media's mission is conducting investigative journalism in pursuit of an open government. Maxwell's currently sealed pleadings, and anticipated future related documents, prevents the public from learning about wrongdoing by high level government officials, media moguls and high profile business people. Cemovich Media is an organization whose mission is to use and promote investigative journalism as a tool to expose corruption and abuse of public power by promoting transparency, accountability, and public awareness, by involving private citizens in the discussion of these problems. Cemovich Media cannot conduct its Forth Estate function if this Court allows the Parties to conduct their dispute outside of the normal sunlight of transparency and accessibility. The public has a right to see Maxwell's Motion for Summary Judgment and the press is here to show it to them.
+
+Movant takes no position with respect to the relative merits of the Parties' arguments in this litigation. However, Movant takes the absolute position that all Parties to this litigation have committed a transgression in that they have sought to shield from scrutiny that which rightfully should be exposed to sunlight. The courts do not belong to the parties — they belong to the people. Craig v. Harney, 331 U.S. 367, 374 (1947) ("what transpires in the court room is public property"). Although the Court originally ordered that the Parties had to seek leave to file under seal (ECF No. 62), it subsequently amended that Order to permit the Parties to substitute their judgment for the Court's and seal any document they chose. See Order of August 8, 2016, ECF No. 348.
+
+<sup>1</sup> His Periscope coverage of the Republican National Convention and Democrat National Convention was featured on Periscope's main page and served as one of the only real-time sources of information from those conventions. See Cernovich Declaration at ¶ 4.
+
+The Parties have abused this rare privilege and the August 8 Order should be vacated. If the Parties wished to litigate in private, then they should have chosen to arbitrate this matter privately. Now that the Parties have used the public's courts, the Parties must have their dispute in full view. As such, Movant is entitled to access and publish judicial documents currently sealed and those that would improperly be sealed in the future.
+
+### 1.0 Cernovich Media May Properly Intervene
+
+Under Rule 24(b)(2), "[o]n timely motion, the court may permit anyone to intervene who is given a conditional right to intervene by a federal statute or has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(2) (colons and alphanumerals omitted). Permissive intervention is permitted where, as here, a member of the public seeks intervention to modify a protective order and inspect court documents. AT & T Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005) ("[P]ermissive intervention is the proper method for a nonparty to seek a modification of a protective order."); see also E.E.O.C. v. Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998) (collecting cases and stated that "despite the lack of a clear fit with the literal terms of Rule 24(b), every circuit court that has considered the question has come to the conclusion that nonparties may permissively intervene for the purpose of challenging confidentiality orders."). Here, Movant is seeking access to this Court's records, specifically Ghislaine Maxwell's (hereinafter "Maxwell") currently sealed Memorandum of Law in Support of Defendant's Motion for Summary Judgment (ECF No. 541), Declaration of Laura A. Menninger in Support of Defendant's Motion for Summary Judgment (ECF No. 542) and all exhibits annexed thereto, and any and all other notices, pleadings, memoranda, declarations, exhibits, orders, and other documents filed or to be filed under seal in relation to Defendant's Notice of Motion for Summary Judgment (ECF No. 540).
+
+The motion is timely. "When a member of the public moves to intervene to unseal judicial records, the motion to intervene is timely as long as the documents remain under seal because sealing places the public's interest in open access in controversy." NML Capital, Ltd. v. Republic of Arg., No. 2:14-cv-492-RFB-VCF, 2014 U.S. Dist. LEXIS 173780, at •11 (D. Nev. Dec. 12,
+
+2014). Here, Maxwell filed her Motion for Summary Judgment and related documents on January 9, 2017. (ECF No. 541). Movant has a significantly protectable interest in this case, as members of Cemovich Media, particularly Cemovich, have been following and reporting on the issues in this case, and have contributed to providing the public with information regarding this case. See Declaration at ¶¶ 9-10. "[I]ntervention by the press — a step preliminary to determining whether any sealed documents should be disclosed — should be granted absent some compelling justification for a contrary result." In re Pineapple Antitrust Litig., 2015 U.S. Dist. LEXIS 122438, at 5 (S.D.N.Y. Aug. 7, 2015); see also Schiller v. City of N.Y., 2006 U.S. Dist. LEXIS 70479, at 5 (S.D.N.Y. Sep. 27, 2006) (noting that: "The Times may well have an absolute right of intervention in the circumstances of this case"); In re NASDAQ Mkt.-Makers Antitrust Litig., 164 F.R.D. 346, 351 (S.D.N.Y. 1996) (granting intervention as of right to newspaper to seek modification of protective order and access to documents in judicial proceeding); and see Kelly v. City of New York, 2003 U.S. Dist. LEXIS 2553, 2003 WL 548400, \*3 (S.D.N.Y. Feb. 24, 2003) (newspaper intervention granted so that it may "articulate the public interest in access to the records at issue"). Movant's intervention is appropriate to protect not only its own interest in covering this case, but also to protect the interests of the public at large.
+
+## 2.0 Analysis
+
+As discussed herein, there is no proper basis to deny Movant access to the Summary Judgment documents at issue. There are both common law and First Amendment rights of access. The Parties have not provided any compelling reason why those rights should be abridged.
+
+## 2.1 Historical and Constitutional Presumptions
+
+There is both a First Amendment and common law right of access to court records. Both remind us that there is a strong presumption of openness in the judicial branch. That presumption should not be laid aside lightly.
+
+### 2.1.1 Common Law Right to Access
+
+The common law right to access is long-established. See Nixon v. Warner Communications, 435 U.S. 589, 597 (1978). In Nixon, the Supreme Court recognized the federal common law right "to inspect and copy public records and documents." Id. This right extends to motions filed in civil cases. "[H]istorically both civil and criminal trials have been presumptively open." E\*Trade Fin. Corp. v. Deutsche Bank AG, 582 F. Supp. 2d 528, 531 (S.D.N.Y. 2008) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 580 n.17 (1980)); see also id. at 599 (Stewart, J., concurring); and see Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920 (1950) ("one of the demands of a democratic society is that the public should know what goes on in courts").
+
+Courts have consistently noted that access to courts and court records is important for public education, public trust, and the integrity of the court system. "[A] trial courtroom also is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been through to enhance the integrity and quality of what takes place." Richmond Newspapers, 448 U.S. at 587 (1980). The press play a vital role in ensuring that the public can view the workings of the judicial process. "What better way to demonstrate to the public that its courts are fair and just than to say to the public, 'come and view the proceedings yourself and judge for yourself?" Suen v. Las Vegas Sands, Inc., District Court, Clark County, Nevada, Case No. A493744-C at 8 (Apr. 16, 2013). Here, access to the court records, especially Maxwell's Motion for Summary Judgment, are particularly important because this case involves claims of public concern. Adjudicating this case in secret would cast doubt on the system and the people will be left wondering if another politician, celebrity, or business person has been tied to any of the already public, and quite disturbing, allegations.
+
+The Second Circuit reinforced the common law presumption in Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016) ("The courts have long recognized the "general right to inspect and copy public records and documents, including judicial records and documents.") (citing Nixon, 435 U.S. at 597, 598 & n.7). "This right is said to predate the Constitution." Bernstein 814 F.3d at 142 (citing United States v. Amodeo II, 71 F.3d 1044, 1048 (2d Cir. 1995)) (internal quotation marks omitted).
+
+#### 2.1.2 The First Amendment Compels Access
+
+The First Amendment requires public access to court proceedings. See Press-Enter. Co. v. Superior Court, 478 U.S. I, 10 (1986);2 Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004) (the public and the press have a "qualified First Amendment right to attend judicial proceedings and to access certain judicial documents."). This is long unquestioned in the criminal context, but the Supreme Court has made it clear that this extends to civil cases. Richmond Newspapers, 448 U.S. at 580 n.7. "[T]he First and Fourteenth Amendments clearly give the press and the public a right of access to trials themselves, civil as well as criminal." Id. at 599 (Stewart, J. concurring). "[T]he First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records. N.Y. Civ. Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2011) (citing Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d Cir. 1984)); see also Hartford Courant, 380 F.3d at 93 (2d Cir. 2004) (finding a right to civil and criminal docket sheets).
+
+Notably, every circuit that has considered whether the First Amendment requires public access in civil cases has concluded it does. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253-54 (4th Cir. 1988); In re Continental Ill. Secs. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984); Publicker Indus., Inc. v. 733 F.2d 1059, 1070 (3d Cir. 1984); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983); v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983). "The First Amendment requires that court proceedings be open to the public, and by extension the news media, absent the most clearly articulated and compelling reason for closing them in a particular circumstance." Katzman v. Victoria's Secret Catalogue, 923 F. Supp. 580,
+
+<sup>2</sup> Historically, the Supreme Court noted: "Long ago in the celebrated trial of Aaron Bun• for treason, for exam le with Chief Justice Marshall sitting as trial judge, the probable-cause hearing was held in the of the House of Delegates in Virginia, the courtroom being too small to accommodate the crush of interested citizens." Id. citing to United States v. Burr, 25 F. Cas. 1 (No. 14,692) (CC Va. 1807).
+
+588 (S.D.N.Y. 1996). The First Amendment, "protects the public's right to have access to judicial documents [and] has been understood to be stronger than its common law ancestor and counterpart." United States v. Erie Cty., 763 F.3d 235, 236 (2d Cir. 2014). No compelling reason for secrecy exists here. The Parties are trying to have this Court to themselves, without allowing the public and the media to observe how they use it. This defies the constitutional mandate that legal proceedings are inherently public affairs. Richmond Newspapers, 448 U.S. at 580; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 (1982).
+
+## 2.2 Standard for Sealing a Court Record
+
+The Court should begin from a strong presumption in favor of access and, "[i]n most cases, a judge must carefully and skeptically review sealing requests to insure that there really is an extraordinary circumstance or compelling need." In re Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir. 1994) (emphasis added); see also SEC v. TheStreet.com, 273 F.3d 222, 232 (2d Cir. 2001); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91(2d Cir. 2004) ("The Supreme Court [has] recognized that the First Amendment grants both the public and the press a qualified right of access" to judicial proceedings.); Westmoreland v. CBS, Inc., 752 F.2d 16, 22 (2d Cir. 1984) ("There is, to be sure, an abundance of support in the cases for a constitutionally grounded public right of access to the courtroom."); United States v. Myers (In re in re Nat'l Broad. Co.), 635 F.2d 945 (2d Cir. 1980) (finding that there is an especially strong presumption requiring extraordinary circumstances to justify restrictions). "Once a First Amendment right of access to judicial documents is found, the documents may be sealed only if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest. And, broad and general findings by the trial court are not sufficient to justify closure." United States v. Erie Cry., 763 F.3d 235, 236 (2d Cir. 2014).
+
+The starting point is to determine whether the documents at issue are "judicial documents" for which a presumption of access applies. See SEC v. TheStreet Com, 273 F.3d 222, 231 (2d Cir. 2001) ("[A] subspecies of sealed documents in civil cases—so-called `judicial documents'-
+
+deserve a presumption in favor of access." When evidence is used in a dispositive motion or its opposition, there must be a compelling reason to shield it from public view. Generally, a "[f]inding that a document is a "judicial document" triggers a presumption of public access." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 167 n.15 (2d Cir. 2013). Documents that directly affect adjudication or are used, "to determine litigants' substantive legal rights, the presumption of access is at its zenith...and thus can be overcome only by extraordinary circumstances." Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016) (citing Lugosch v. Pyramid Co., 435 F.3d 110, 121 (2d Cir. 2006) and United States v. Amodeo II, 71 F.3d 1044 (2d Cir. 1995)) (internal quotation marks omitted). The locus of the inquiry is whether the document "is presented to the court to invoke its powers or affect its decisions." Bernstein, 814 F.3d at 142.
+
+## 2.2.1 The Compelling Reason Standard Applies to the Documents at Issue
+
+As dispositive judicial documents, there must be compelling reasons to seal the documents at issue. "Since such a document is the basis for the adjudication, only the most compelling reasons can justify sealing." Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 136 (2d Cir. 2016). Here, Maxwell's Motion for Summary Judgment and related filings, including responsive and related documents to be filed, asks for a final adjudication of the case. The Bernstein Court noted, the Second Circuit has specifically held that not only are motions for summary judgment dispositive, but even, "report[s] submitted in connection with a summary judgment motion [are] entitled to a strong presumption of access." Bernstein, 814 F.3d at 142 (citing Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982)).
+
+A dispositive motion is one that relates to the settlement of an issue in a case and in this case a motion for summary judgment is dispositive as it seeks to settle the entire case. The claimed compelling reasons must be supported by specific factual findings. United States v. Erie Cty., 763 F.3d 235, 236 (2d Cir. 2014). The compelling reason and facts must show more than mere conjecture, and more than embarrassment, incrimination, or wider exposure of the facts to the public. Bernstein, 814 F.3d at 144 (finding that information that was embarrassing or suggested the party was complicit in a kickback scheme fell, "woefully short of the kind of showing which raises even an arguable issue as to whether it may be kept under seal") (internal citation omitted). Maxwell's Summary Judgment pleadings have been improperly sealed, as "privacy concerns" alone cannot be a compelling reason to hide a final adjudication from the public. Anything in the Motion for Summary Judgment that Maxwell considers embarrassing or raises a concern of incrimination cannot be held back from the public for those reasons, as the press has the right to report on the happenings of the judiciary. For a party to prevail on a showing of a compelling reason to seal a court record, that party must present specific factual findings sufficient to overcome the presumption that court records will be open to the public. The Parties have failed to provide a compelling reason to seal the record.
+
+#### 2.2.2 The Parties Have Provided Neither a "Compelling Reason" nor "Good Cause" to Seal the Summary Judgment Documents
+
+The Court must apply the stringent compelling reason standard because Maxwell has filed a motion for summary judgment which could lead to the adjudication of this case. Due to all the redactions in the record, even the reasons for the Protective Order are hidden from the public. (ECF No. 39-1). Movant recognizes that this Court entered an order stating that "[a]llegations implicating absent third parties... implicate and potentially irreparably intrude on the privacy of individuals not present before this Court.) (ECF No. 250). Preliminary, the Parties do not have standing to raise absent third party privacy concerns. More importantly, even if they did, the concerns raised are insufficient when contrasted with the rights of the people to have open courts, an issue that it appears the Parties did not raise with the Court. If the "absent third parties" are public figures, then this would be a matter of great public interest. Here, Movant has no way of knowing. Ultimately, mere privacy concerns are insufficient to warrant sealing of records. The Parties have presented neither a compelling reason nor good cause as to why Maxwell's Motion for Summary Judgment should be sealed. Moreover, ECF No. 250 only address "the names and identifying information of individuals", yet the Summary Judgment documents
+
+redact well in excess of that limited matter. No matter what standard the Court applies, Maxwell's Motion for Summary Judgment must be unsealed because Maxwell has not put forth any compelling reason or any particularized showing of good cause as to why the Motion for Summary Judgment has been sealed, other than that the Parties desire privacy.3
+
+### 2.2.3 Movant's Motion is Distinct from Prof. Dershowitz's
+
+Movant is aware that Prof. Alan M. Dershowitz filed a Motion to Intervene (ECF No. 362), which appears to have been denied (ECF No. 496). The denial is for unknown reasons, as the Order denying the Motion is itself sealed. Such is only identifiable on the docket by virtue of Prof. Dershowitz's notice of appeal (ECF No. 504).
+
+The only opposition to Prof. Dershowitz's Motion was filed by Defendant. See ECF No. 406. Plaintiff challenged the motion on three primary bases: (1) documents relating to discovery were sought; (2) Prof. Dershowitz was pursuing only his personal interest; and (3) Prof. Dershowitz had agreed to be bound by the protective order. See id. None of those bases are present here. Movant recognizes that "documents such as those passed between the parties in discovery often play no role in the performance of U.S. Const. Art. Ill functions [ ]". Bernstein, 814 F.3d at 136. Movant is not presently seeking access to such documents, but rather to those specifically playing a role in the adjudication of the merits of the action. Although Prof. Dershowitz may have
+
+<sup>3</sup> Although the Second Circuit demands a strong presumption for judicial documents, the Parties could not, hypothetically even meet a lower "good cause" standard, as none has been articulated. See, e.g., United States v. Amodeo 11,71 F.3d 1044, 1048 (2d Cir. 1995); see also Bernstein, 814 F.3d at 142 ("By contrast, documents `such as those passed between the parties in discovery' often play `no role in the performance of Article III functions' and so the presumption of access to these records is low.") (citing Amodeo 11,71 F.3d at 1050). Defendant must articulate specific reasons as to why the Court must seal the Motion for Summary Judgment. Here, there is a Protective Order that states that there are privacy interests at stake (ECF No. 39-1), but Maxwell has not articulated any reasons as to why the specific sealed matters relating to the Motion for Summary Judgment, which asks for final adjudication of this case, should be hidden from public view. Thus, the press, including Movant, has the right to intervene to unseal the documents.
+
+had private interests motivating his motion, Movant's motivation is grounded solely in the public interest .° Finally, Movant has never agreed to be bound by the Protective Order.
+
+Plaintiff's sole articulation of a reason to deny access appeared redacted in one sentence of her opposition, and citing to Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F.Supp.3d 425, 445 n.7 (S.D.N.Y. 2016). See ECF No. 406 at p. 17. There is nothing in the public record that would allow Movant to evaluate (a) the specific privacy interest at issue; or even (b) whether that issue relates to Summary Judgment, as opposed to just the discovery exhibits sought by Prof. Dershowitz. Movant has not even been given an inkling as to what the privacy interests are, especially as much of Plaintiffs claims of a sexual nature are already matters of public record. Moreover, in Louis Vuitton Malletier, the court did not rely upon the sealed matters; in contrast, Maxwell's entire argument, pages 1-68 of ECF No. 541, the memorandum in support of summary judgment, was redacted. The Court must necessarily rely upon such matters to adjudicate the case. Plaintiff's single sentence is unlikely to constitute all 68 pages of Defendant's argument. Therefore, the Order as to Prof. Dershowitz does not adjudicate the instant motion.
+
+## 3.0 Conclusion
+
+Both parties are public figures and the case has been covered by multiple state and national media outlets. The media has a vested interest in these and all court proceedings, and the public in the United States and beyond have a strong interest in how these courts are being used in this dispute. If Cernovich Media is not permitted to intervene and view court records, it will suffer great impairment, as it cannot perform their Fourth Estate function without access to public documents. By extension, the public will be harmed because it will be deprived of its right to know.
+
+Movant assumes arguendo that this public/private is relevant. But see Amodeo II, 71 F.3d at 1050.
+
+Based on the foregoing, Cernovich Media respectfully requests that this Court unseal Maxwell's summary judgment pleadings and preclude automatic sealing of future related documents, allowing the public and media access to these necessary and important judicial documents.
+
+Dated: January 19, 2017. Respectfully Submitted,
+
+/s/ Jay Al. Wolman
+
+Jay M. Wolman (JW0600)
+
+RANDAZZA LEGAL GROUP, PLLC
+
+100 Pearl Street, 14th Floor
+
+Hartford, CT 06103
+
+Tele: 702-420-2001
+
+Fax: 305-437-7662
+
+Email: ecf®randazza.com
+
+Attorneys for Movant/Putative Intervenor, Cernovich Media
+
+#### CERTIFICATE OF SERVICE
+
+I HEREBY CERTIFY that on January 19, 2017, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I further certify that a true and correct copy of the foregoing document being served via transmission of Notices of Electronic Filing generated by CM/ECF.
+
+Respectfully submitted,
+
+/s/ Jay M. Wolman
+
+Jay M. Wolman

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marker2/court-redacted-v-maxwell-07433/EFTA02801698/EFTA02801698.md

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+UNITED STATES DISTRICT COURT  
+SOUTHERN DISTRICT OF NEW YORK
+
+-----X  
+ VIRGINIA L. GUIFFRE, :  
+ :  
+ Plaintiff, :  
+ :  
+ -against- :  
+ :  
+ GHISLAINE MAXWELL, :  
+ :  
+ Defendant. :  
+ :  
+ -----X
+
+Case No.: 15-cv-7433 (RWS)
+
+**DECLARATION OF MICHAEL CERNOVICH IN SUPPORT OF PROPOSED  
+ INTERVENOR MICHAEL CERNOVICH D/B/A CERNOVICH MEDIA'S  
+ MOTION TO INTERVENE AND UNSEAL**
+
+I, Michael Cernovich, declare:
+
+1. 1. I am over the age of 18 years and am fully competent to make this Declaration. The facts set forth herein are within my personal knowledge and are true and correct.
+2. 2. I respectfully submit this Declaration in support of my Motion to Intervene and Unseal, filed herewith.
+3. 3. Among other professions and hobbies, I am a lawyer, author, documentary filmmaker, author, and host of the Mike Cernovich Podcast.
+4. 4. My broadcasts on Periscope have over 63,000 subscribers and 13 million "likes". The broadcasts are watched by tens-of-thousands of people per episode. My Periscope coverage of the Republican National Convention and Democrat National Convention was featured on Periscope's main page and served as one of the only real-time sources of information from those conventions.
+5. 5. My photographs and videos are frequently relied upon and utilized by national media outlets.
+6. 6. Online, I usually publish under the brand "Cernovich Media."
+7. 7. I am also directing and producing a documentary film on modern media coverage.
+
+8. I regularly use Twitter as a platform to report on news and provide opinions on current events. Currently, I have over 192,000 Twitter followers, and my tweets reach millions of people on a monthly basis.
+
+9. I have been closely following this instant lawsuit, and I have reported on it online.
+
+10. My coverage of this lawsuit on Twitter and elsewhere has contributed to informing the public about the issues at stake in this case, including the involvement of public figures and government officials.
+
+I declare under penalty of perjury that the foregoing is true and correct.
+
+Executed on January 19, 2017.
+
+T9D1562527224FA "
+
+Michael Cemovich

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marker2/court-redacted-v-maxwell-07433/EFTA02801700/EFTA02801700.md

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+UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+- against -
+
+GHISLAINE MAXWELL,
+
+Plaintiff,
+
+Defendant.
+
+UcbC. SDI,TY I DOC'UML•'NT \_14 FA .ECTRON ICAT I Y FP. f;Doc#: t in D.C'E -
+
+Sweet, D.J.
+
+X
+
+15 Civ. 7433 (RWS)
+
+ORDER
+
+The letters regarding page limits shall be treated as a motion and heard at noon on Thursday, January 26, 2017 in Courtroom 18C, United States Courthouse, 500 Pearl Street. All papers shall be served in accordance with Local Civil Rule 6.1.
+
+It is so ordered.
+
+New York, NY
+
+January J , 2017 RO= T W. SWEET U.S.D.J.

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marker2/court-redacted-v-maxwell-07433/EFTA02801701/EFTA02801701.md

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+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+Plaintiff,
+
+v.
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+Case No.: 15-cv-07433-RWS
+
+## AFFIDAVIT OF JOHN E. STEPHENSON"IR.
+
+I, John E. Stephenson, Jr., hereby declare as follows:
+
+1. I am a partner with the law firm Alston & Bird LLP. I am admitted to practice law in Georgia. I make this declaration in connection with my motion for admission pro hac vice in the above-captioned matter.
+
+2. I have never been convicted of a felony.
+
+3. 1 have never been censured, suspended, disbarred, or denied admission or readmission by any court.
+
+4. There are no disciplinary proceedings pending against me.
+
+5. Pursuant to 28 U.S.0 § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
+
+Executed on January ab , 2017 <sup>5</sup> -be n Se vi ohn E. Stephenson, Jr.

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marker2/court-redacted-v-maxwell-07433/EFTA02801702/EFTA02801702.md

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+![](_page_0_Picture_1.jpeg)
+
+HUGH P. THOMPSON. CHIEF JUSTICE P. HARRIS HINES. PRESIDING JUSTICE ROOCRT BENHAM CAROL W. HUNSTEIN HAROLD D. MELTON DAVID E. NAHMIAS KEITH R. BLACKWELL JUSTICES
+
+## Supreme (hurt State of Georgia STATE JUDICIAL (WILDING ,1tlanta 30334
+
+December 22. 2016
+
+THERESE S. BARNES. CLERK JEAN RUSSELL. REPORTER
+
+I hereby certify that John E. Stephenson, Esq., was admitted on the 20th day of February, 1985, as a member of the bar of the Supreme Court of Georgia, the highest court of this State; and, since that date he has been and is now a member of this bar in good standing, as appears from the records and files in this office.
+
+![](_page_0_Picture_7.jpeg)
+
+Witness my signature and the seal of this Court hereto affixed the day and year first above written.
+
+i saziab fp Qa tiessece <sup>d</sup> , Clerk

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marker2/court-redacted-v-maxwell-07433/EFTA02801703/EFTA02801703.md

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+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+Plaintiff,
+
+15 07433 "RWS cv
+
+-against-
+
+GHISLAINE MAXWELL ORDER FOR ADMISSION PRO HAC VICE
+
+Defendant.
+
+The motion of John E. Stephenson, Jr. for admission to
+
+practice Pro Hac Vice in the above captioned action is granted.
+
+Applicant has declared that he/she is a member in good standing of the bar(s) of the state(s) of
+
+Georgia • and that his/her contact information is as follows
+
+(please print):
+
+Applicant's Name: John E. Stephenson. Jr.
+
+Firm Name: Alston & Bird LLP
+
+Address: 1201 West Peachtree Street, N.W.
+
+City / State / Zip: Atlanta. Georgia 30309
+
+Telephone / Fax: (404) 881-7697 / (404) 881-7777
+
+Applicant having requested admission Pro Hac Vice to appear for all purposes as counsel for
+
+in the above entitled action;
+
+IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys.
+
+Dated: United States District/Magistrate Judge

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marker2/court-redacted-v-maxwell-07433/EFTA02801704/EFTA02801704.md

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+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+ts -cv. " 33 (RWS)
+
+Plaintiff,
+
+## -against- MOTION FOR ADMISSION PRO HAC VICE
+
+GHISLAINE MAXWELL
+
+Defendant.
+
+Pursuant to Rule 1.3 of the Local Rules of the United States Courts for the Southern and Eastern Districts of New York, I John E. Stephenson, Jr. hereby move this Court for an Order for admission to practice Pro Hac Vice to appear as counsel for MM1 in the above-captioned action.
+
+I am in good standing of the bar(s) of the state(s) of Georgia and there are no pending disciplinary proceedings against me in any state or federal court.
+
+Dated: January 20, 2017 spectf ubmittcd,
+
+Applicant Signature
+
+Applicant's Name: • Stephenson, Jr.
+
+Alston & Bird LLP Firm Name:
+
+Address: 1201 West Peachtree Street, N.W.
+
+Atlanta, Georgia 30309 City / State / Zip:
+
+Telephone / Fax: (404) 881.7697 / (404)881-7777
+
+E-Mail: johostepltertson walston.com

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marker2/court-redacted-v-maxwell-07433/EFTA02801705/EFTA02801705.md

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+UNITED STATES DISTRICT COURT  
+SOUTHERN DISTRICT OF NEW YORK
+
+![](_page_0_Picture_13.jpeg)
+
+-----X  
+[REDACTED]  
+v.  
+GHISLAINE MAXWELL,  
+  
+Defendant.  
+-----X
+
+15-cv-07433-RWS
+
+DEFENDANT'S MOTION FOR SANCTIONS BASED ON  
+PLAINTIFF'S INTENTIONAL DESTRUCTION OF EVIDENCE
+
+*Spoliation has not been established at the time of the Plaintiff's acts and the motion is denied.*
+
+*S o ordered  
+Sweet  
+USDS  
+1-19-17*
+
+USDC SDNY  
+DOCUMENT  
+ELECTRONICALLY FILED  
+DOC #: 11/19/17  
+DATE FILED: 11/19/17
+
+Laura A. Menninger  
+Jeffrey S. Pagliuca  
+HADDON, [REDACTED], AND [REDACTED], P.C.  
+150 East 10<sup>th</sup> Avenue  
+Denver, CO 80203  
+303.831.7364
+
+Defendant Ghislaine Maxwell ("Ms. Maxwell") hereby submits this Motion for Sanctions Based on Plaintiff's Intentional Destruction of Evidence and further states as follows:
+
+# INTRODUCTION
+
+In 2013, after Plaintiff was in the process of attempting to join the Crime Victims' Rights Act litigation ("CVRA Litigation") represented by her current counsel, Plaintiff willfully and deliberately IiintedireakitigradiS in hirbikkiid . According to Plaintiff, the iellIW ilittirtiaigtiggiActinting thethilikihe chichitig 011Tlinac decision to Plaintiff made a deliberate faidiliiiMiRiliffMakieitetute;41\*elitigeotiigitQl Weit49lablitata ' One can only assume then that contained the opposite: evidence unfavorable to Plaintiff and inconsistent with the story she ultimately submitted to the Court in the CVRA case. Presumably, theyi l documented that the newest iteration of her story contained in the CVRA litigation differed materially from \*.isitirmtmotiesnwhich were mitten wheti she was not planning lifigationaliiiitoibtatddith eattligende vita Utica details abbut hec memories and events. Rather than having her new story impeached by her own words, she destroyed the unfavorable evidence. Such willful and intentional destruction of evidence warrants an adverse inference jury instruction, if not outright dismissal of Plaintiff's claims.
+
+# BACKGROUND FACTS
+
+As the Court is well aware, Plaintiff first decided to publicize her story concerning Jeffery Epstein in 2011. In February 2011, she participated for a substantial sum of money in a week-long series of interviews with reporter Sharon Churcher in advance of a series of sensationalist articles published in February and March 2011 in the Daily Mail. Those articles contain a series of stories that vary substantially from the accounts published by Plaintiff in late 2014 as a part of her CVRA joinder motion. The Daily Mail articles state, for example, that (a) Ms. Maxwell was not present during Mr. Epstein's first meeting with Plaintiff, nor did she participate in any alleged sexual encounters; (b) there is "no suggestion" that Plaintiff had any sexual interaction with Prince Andrew at any time; and (c) there was no mention of Plaintiff ever meeting, let alone having sexual encounters with, Professor Alan Dershowitz.
+
+After the publication of those articles, Sharon Churcher introduced Plaintiff to attorney Brad M. was then (and now) actively litigating his own personal civil case against Mr. Epstein as well as pursuing the CVRA action in an attempt to void the nonprosecution agreement between Mr. Epstein and the Government. According to Plaintiff's discovery responses:
+
+Brad (along with other UM, Jaffe attorneys) represents as a non-party in the litigation styled as Jane Doe ill and Jane Doe 42 v. Unite States, Case No. 08-80736-CIV-Marra, Southern District of Florida. starting in 2011. ["the CVRA Litigation"]
+
+Brad with legal advice concerning media inquiries had received starting in 2011.
+
+Paul Cassell provided with legal advice concerning potential legal action starting in early 2011.
+
+Menninger Decl., Ex. A, at p. 9-10. Thus, as early as 201 I, Plaintiff was represented as a nail party, attempting to become a party, to the CVRA Action As the Court is well aware, it was Plaintiffs Joinder Motion in the CVRA action (filed by and Paul Cassell), that immediately preceded the purportedly defamatory denial by Ghislaine Maxwell three days later that forms the statement at issue in this case.
+
+In 2013, Plaintiff relocated her thmily to Florida for the purpose of progressing forward with joining the CRVA litigation In the process of that move, she purposely destroyed
+
+A. When I minted from Augralia I had a hunch of papmserk I just kind of threw AUL t didn't bring
+
+tIOCtilliellt including copies of her contract with Sharon Churcher and the Daily Mail showing the payments she received for marketing her story Menninger Decl., Ex. B, 129:15-130:6.
+
+More disturbingly, after relocating to Florida and pursuing joinder in the CVRA action. Plaintiff and her husband willfully and intentionally destroyed hundreds of documents;Thiligihig journal containing between 85 and 300 pages of notes of Plaintiff's thoughts, feelings and memories about her past, in a backyard bonfire. In her deposition in the Dershowitz litigation,
+
+Plaintiff described her purposeful destruction of this evidence as Follows:
+
+Q. The booklet that you gave pages from to Ms. Churcher where is that booklet?
+
+A. Burned,
+
+Q. When did you burn it?
+
+A. In. I think it was 2013. Me and my husband had a bonfire.
+
+Q. What did you put in the bonfire?
+
+A. Any kind of memories that I had written down about aU the stuff going on.
+
+Q. Ilad you written anything about Professor Dershowitz?
+
+A. lie could have been there, yes.
+
+Q. And you burned that?
+
+A. I wanted to burn my memories. I wanted to get rid of it. It was very painlitl stun.
+
+Q. Other than what you had written down did you hum anything else? I don't mean the le when you talk about burning your memories, what were you burning?
+
+A. I was burning like memories, thoughts, dreams that I had. just everything that was kind of affiliated with the abuse I endured, and there was a lot of it in there. My husband is pretty spiritual so he said the best thing to do would be burn them.
+
+Q. Is there anything you decided to keep and not burn?
+
+evoything with me.
+
+Q. Why did you choose to move back to the United States at that lime?
+
+A. I mean, that's a couple good reasons why 1 moved back. You know, first and foremost I haven't seen my family in a long time; and secondly. I wanted to sec something happen with the -- I was trying to join the CVRA case so I was hoping by moving back I would see that progress. Menninger Decl., Ex. B, 130:4-14.
+
+A. Just the photographs.
+
+Q. Anything else that you can think of?
+
+A. Photographs, that's it.
+
+Q. Approximately when in 2013 was this bonfire?
+
+A. I don't know what month it was.
+
+Q. Did you do it outside?
+
+A. Yeah, it was outside. I wasn't going to do it in my living room.
+
+Q. Did you feel good to be close to me because you was cold out or was it a summer time bonfire?
+
+A. I believe I had just bought my house in Titusville, Florida. I bought my house in, I think, I either got it October or November of 2013. It would have been around probably November.
+
+Q. Why did you decide to keep the photos?
+
+A. They're evidence.
+
+Q. Did you ever look to see if you had any personal notes in your writing that pertain to Professor Dershowitz?
+
+A. Like from my old journal, the one that I burned?
+
+Q. From anywhere. Did you ever make an effort to look?
+
+A. Dershowitz could have been in my journal, he could have been. We're talking about an 85 page, if not more, you know, things that I had written to get my story out of my head and into pages; and yes, Dershowitz could have been in there, but that's up in the clouds now, bonfire.
+
+Q. That's what you call your journals, what you burned, right?
+
+A. Yes.
+
+Q. And you wrote that journal in order to collect your thoughts?
+
+A. To get everything out of here and on to paper.
+
+Menninger Decl., Ex. B 64:6-65:23; 194:2-21.
+
+In her first deposition in this action, Plaintiff described her purposeful destruction of this
+
+evidence as follows:
+
+Q. Do you have any notes of all these people that you were sent to?
+
+A. No, I don't.
+
+Q. Where are your notes?
+
+A. I bumed them.
+
+Q. When did you bum them?
+
+A. In a bonfire when I lived at Titusville because I was sick of going through this shit.
+
+IIIPTIMINiaffiOathrtirne YOU built:40-0e and
+
+A. I've been represented for a long time, but it was not under the instruction of my lawyers to do this. My husband and I were pretty spiritual people and we believed that these memories were worth burning.
+
+01.!•:\$4547filicr. ifirrag,V5altalgiiaisti.ileYOu vtere:nresen-1439
+
+MR. Object to the form.
+
+A. This wasn't anything that was a public document. This was my own private journal. and I didn't want it anymore. So we burned it.
+
+Q. (BY MS. MENNINGER) When did you write that journal?
+
+014WittOSSIASIMINktidiliskikEtw• r-C4T6P0100, 2012,
+
+Q. So you did not write this journal at the time it happened?
+
+A. No.
+
+Q. You started writing this journal appmximately a decade after you claim you finished being sexually trafficked, correct?
+
+A. Yes.
+
+Q. And you started writing a journal alter you had a lawyer. correct?
+
+A. Correct.
+
+Q. Including Mr. who is sitting right here, correct?
+
+A. Correct.
+
+Q. What did that journal look like?
+
+A. It was
+
+Q. And what else?
+
+A. It was just a spiral notebook.
+
+Q. Okay. And what did you put into that spiral notebook?
+
+A. Bad memories. Things that I've gone through. lots of things, you know. I can't tell you. There was a lot of pages. Il was over 300 pages in that hook.
+
+Q. Did you ever show that book to your lawyers?
+
+A. No.
+
+Q. Did you show that book to anyone?
+
+A. My husband.
+
+Q. Did you show it to anyone else besides your husband?
+
+A. No.
+
+Q. Did you tear out pages and give them to Sharon Churcher?
+
+A. No, I wrote those pages that you're talking about, t wrote for her specifically. She wanted to know about the Prince Andrew incident.
+
+Q. So that's a different piece of paper?
+
+A. Yeah, that's just random paper.
+
+Q. So you had a spiral notebook that you began sometime in 2011 or 2012 in which you wrote down your recollections about what had happened to you, and you burned that in a bonfire in 2013. Did I get that right?
+
+I
+
+A. You got that right.
+
+Menninger Dccl. Ex. Cat 205:13-208:9.
+
+I
+
+p
+
+I
+
+Additionally, in the Dershowitz litigation, Plaintiff also described a ignefititebikei "dream book" that she claimed to still have in her possession as of January 16. 2016. tour months Act the present litigation was filed. This "dream book" has not been produced in this litigation despite requestz. and Plaintiff has now claimed that she does not have any diaries or journals other than what she had destroyed. Specifically. Plaintiff testified:
+
+Q. Have you made any other notes, though. since then to help you when you think of things'?
+
+A. Yes, sometimes like I said, sometimes when I read my affidavits and stuff like that, you know, and I think of something else like a description of something that I comet about, you know what I mean, then yeah, go back anti I'll write it in the journal. YOU know, for instance, you know. what another girl would have looked like. Even though I can't identify her name or her age or anything like that, but I do remember like flashes of blonde, little things like that, but nothing — I don't have any more journals.
+
+Q. But those notes, they help your memory?
+
+A. Sometimes. I'm a very visual person.
+
+Q. And they help you with your affidavits?
+
+A. No, they don't help me with my affidavits, my affidavits arc already done. I just go back and it helps my memory. It helps me bring stuff out.
+
+Q. What do you do with those notes?
+
+A. Nothing, literally nothing. They're in a notebook that ill need to write it down. I have a dream notebook as well where I'll just write down my dreams and stuff. I do nothing, no one is seeing it.
+
+Q. You read it? You keep ill
+
+A. Yeah.' keep it.
+
+Q. Okay. Have you gone back and read that recently?
+
+A. No.
+
+Q. Okay. You continue to make cnttics into it?
+
+Menninger Decl. Ex. D, Plaintiff's Second Amended Supplemental Response And Objections To Defendant's First Set Of Discovery Requests To Plaintiff, RI1Ps 16, 2K and 34.
+
+A. Not so much about Dershowitz. It's mostly like feelings, dreams, you know, past things that I've gone through. Like I said, not so much pertaining to Dershowitz himself.
+
+Q. And that's separate from your dream book?
+
+A. No. it's all in one.
+
+Q. Is it a spiral bound notebook?
+
+A. Yes, it's just a cheap. like, actually it's in my kid's closet.
+
+Menninger Decl. Ex. Bat 194:22-196:11N
+
+With respgivithidtcoal either Plaintiff has also destroyed this evidence after the initiation of the litigation, or is willfully and improperly withholding it from production in the matter.
+
+## LEGAL STANDARD
+
+Each litigant has an obligation to take reasonable measures to preserve all potentially relevant documents. That obligation arises even pre-suit, if "the party 'should have known that the evidence may be relevant to future litigation."' MASTR Adjustable Rate Mortgages Trust 2006-0A2 v. UBS Real Estate Secs., Inc., 295 F.R.D. 77, 82 (S.D.N.Y.2013) (quoting Kronisch v. United States, ISO F.3d 112, 126 (2d Cir.1998)); accord University of Montreal Pension Plan v. Bank of America Secs., LLC, 685 F.Supp.2d 456, 465-66 (S.D.N.Y.2010) abrogated on other rounds, Chin v. Port Auth. of N.Y. & New Jersey, 685 F.3d 135, 162 (2d Cir. 2012).
+
+"Spoliation is 'the destruction of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'" MASTR Adjustable Rate Mortgages Trust, 295 F.R.D. at 82 (quoting Byrnie v. Town of Cromwell Board of Educ., 243 F.3d 93, 107 (2d Cir.2001)). A party seeking sanctions based on the destruction of evidence must demonstrate:
+
+( 1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable
+
+state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
+
+Residential Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002)3 (quotations omitted). The Second Circuit has held that the requisite "culpable state of mind" may encompass simple negligence as gross negligence and most certainly covers deliberate misconduct. The degree of culpability affects the choice of remedies. See Sekisui American Corp. v. Ham 945 F.Supp.2d 494, 503-04 (S.D.N.Y. 2013); MASTR Adjustable Rate Mortgages Trust, 295 F.R.D. at 84; Orbit One Communications, Inc. v. Numerex Corp., 271 F. R.D.2d 429, 438 (S.D.N.Y. 2010).
+
+The moving party has the burden to demonstrate both that the destroyed materials meet the relevance standard of Rule 26(b)(I), and that such evidence would have been favorable to the discovering party. See MASTR Adjustable Rate Mortgages Trust, 295 F.R.D. at 85-86 (citing cases). The burden is "not onerous," id at 86, since it is difficult to prove what is contained in documents that have been destroyed. To require a detailed showing in such circumstances poses the danger that "the spoliator [may] profit from its" own misconduct. Id. (quoting Orbit One, 271 F.R.D. at 440). If the destruction of evidence was done in bad faith (i.e., willfully or intentionally), that alone justifies a finding that the material that was lost was relevant to claims or defenses in the case. Residential Funding, 306 F.3d at 109.
+
+If the moving party meets the burden to demonstrate destruction of relevant evidence, the court has broad discretion in choosing appropriate sanctions to remedy the injury to the
+
+<sup>3</sup> Residential Funding has been superseded by statute with respect Electronically Stored Information ("ESI") in the 2015 amendments to 37(e) of the Federal Rules of Civil Procedure, which now require willful or purposeful destruction of ESI, as opposed to negligence or gross negligence, to impose terminating sanctions or adverse inference instructions. Because this matter concerns the destruction of a physical journal. not ESI that might be recoverable or available through other sources. Rule 37(e) is instructive but not controlling. Regardless. because the destruction at issue was willful and intentional (not merely negligent or grossly negligent). Residential Funding and its progeny remain good law respecting the willful destruction of evidence.
+
+I
+
+discovering party. See, Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir.2001); Zebulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y.2004). The goal of the remedy is to "(1) deter the parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore 'the prejudiced party to the same position [she] would have been in absent the wrongful destruction of evidence by the opposing party."' University of Montreal Pension Plan, 685 F.Supp.2d at 469 (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)); accord Chen, 685 F.3d at 162 (quoting Byrnie, 243 F.3d at 107).
+
+The court should determine the remedy 'based on the relative fault of the party against whom sanctions are sought and the prejudice suffered by the party seeking sanctions." Treppel, 249 F.R.D. at 123-24 (quoting Klezmer v. Buynak, 227 F.R.D. 43, 51 (E.D.N.Y.2005)). The available remedies, from "least harsh to most harsh," start with ordering more discovery, and range to cost-shifting, to adverse-inference instructions, to preclusion and, finally, to entry of a default or dismissal ("terminating remedies"). University of Montreal Pension Plan, 685 F.Supp.2d at 469 (citing cases). Terminating remedies are justified "in only the most egregious cases" for example, when "a party has engaged in perjury, tampering with evidence, or intentionally destroyed evidence by burning, shredding, or wiping out computer hard drives." Id. at 469-70 & n.48.
+
+## ARGUMENT
+
+## 1. PLAINTIFF ADMITTED EACH ELEMENT OF INTENTIONAL SPOLIATION
+
+Plaintiff admitted at her depositions to each factor required for a finding of spoliation. First, Plaintiff, the party having control over the evidence, had an obligation to preserve the jot:I:hist at the wasaestroyeti;:9iitSiiitlitliflitiltiiifeSWeehl:Wiiiitpi\*thited by
+
+and Paul Cassell in 2013 at the time she burned the journal. One purpose of that representation was to participate in the then-pending CVRA Litigation. which was tiled by and Cassell to void the non-prosecution agreement between Mr. Epstein and the Government. As Plaintiff admits, the journal at issue included all of her memories, thoughts and feelings about the time she was associated with Epstein. the very basis for her attempt to join the CVRA action. Knowing that the litigation was pending, and moving to Florida with a primary motivation to join that litigation, a duty to preserve was indisputable.
+
+The purposeful lighting of a fire and permanent destruction of a handwritten, unreplicated journal satisfies the definition of destruction with a culpable state of mind. "Where a party seeks to demonstrate intent, that intent need not be directed at spoliation of evidence to the other party's detriment. Rather, any intentional destruction suffices." Hawley v. Mphasis Corp., 302 F.R.D. 37, 47 (S.D.N.Y. 2014); Byrnie, 243 F.3d at 107-09 (noting that "intentional destruction of documents in the face of a duty to retain those documents is adequate" to show a "culpable state of mind"); Congregation Rabbinical Coll of Tartikov, Inc. v. Viii of Pomona, 138 F. Supp. 3d 352, 388 (S.D.N.Y. 2015).
+
+The relevance of the documents to the pending litigation need not be proven in this case, but nevertheless has been admitted by Plaintiff. "When evidence is destroyed in bad faith (i.e., intentionally or willfully), that fact alone is sufficient to demonstrate relevance." Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003); Byrnie, 243 F.3d at 109; compare Fed R. Civ. P. 37(e)(2) (permitting adverse inference or dismissal of claims for intentional for destruction of ES1, noting that "Subdivision (eX2) does not include a requirement that the court find prejudice to the party deprived of the information. This is because the finding of intent required by the subdivision can support not only an inference that the lost information was
+
+unfavorable to the party that intentionally destroyed it, but also an inference that the opposing party was prejudiced by the loss of information that would have favored its position. Subdivision (e)(2) does not require any further finding of prejudice.). torching evidence The act of lighting a bonfire and is the definition of intentional and willful destruction with the intent to deprive its use in known pending litigation.
+
+Plaintiff's testimony only solidifies that the presumption of relevance is proper. The alleged defamatory statement that is central to this case is important in this context. The alleged defamatory press release states:
+
+Each time the story is re told it changes with new salacious details about public figures and world leaders and now it is alleged by that Alan Derschowitz [sicJ is involved in having sexual relations with her, which he denies.
+
+claims are obvious lies and should be treated as such and not publicised as news, as they are defamatory.
+
+By Plaintiff's own admission, the journal containing her memories kept between 2011 and 2013 that she burned may or may not have mentioned Mr. Ikrshowitz. If it did not, it is specific evidence that the claim of sexual interactions with Ms. Dershowitz was fabricated at a later date - in other words, an obvious lie. Likewise, any different or contrary "memories" concerning interacting with Prince Andrew, or any other of the public figures Plaintiff now claims to have had sexual interactions with, go to the defense of truth -- that Plaintiffs story changes each time it is told. Indeed, based on information and allegations from the Dershowitz litigation. there is reason to suspect that Plaintiff acted in concert with or was encouraged by her attorneys to embellish her story, including the inclusion of Mr. Dershowitz in her story. If this occurred, there is reason to suspect that Plaintiff's "thoughts and feelings" regarding these pressures were also included in her journal.
+
+There is no way to recreate this journal or to reveal what Plaintiff was thinking or her memories as contained in a journal she kept for herself, not to be made public. It clearly contained relevant information - information that would support a claim or defense in this matter. Of course, we will never know because, in Plaintiffs own words, now." It was purposefully and willfully destroyed. "that's up in the clouds
+
+# II. SEVERE SANCTIONS ARE APPROPRIATE
+
+When deciding appropriate sanctions for this purposeful destruction, one must bear in mind the three goals of sanctions for spoliation: (1) deterring the parties from engaging in spoliation; (2) placing the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restoring the prejudiced party to the same position she would have been in absent the wrongful destruction of evidence by the opposing party. As is apparent by the recent amendments to Fed. R. Civ. P. 37(eX2XB)&(C), where there has been intentional destruction of evidence, the proper sanctions for consideration in a jury context are instructing the jury that it may or must presume the information was unfavorable to the party or b) dismissing the action or entering a default judgment.
+
+# A. Terminating Sanctions are Appropriate
+
+"A terminating sanction is justified in only the most egregious cases, such as where a party has engaged in perjury, tampering with evidence, or intentionally destroying evidence by burning, shredding, or wiping out computer hard drives." Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 469-70 (S.D.N.Y. 2010), abrogated on other grounds by Chin v. Port Auth. of N.Y. & New Jersey, 685 F.3d 135 (2d Cir. 2012).
+
+In 2013, knowing that her goal was to join the CVRA action by telling a story of allegedly being forced to be a "sex slave" at the age of IS, trafficked to "numerous prominent American politicians, powerful business executives, foreign presidents, a well-known Prime
+
+I
+
+Minister, and other world leaders," she destroyed her private journal that would contradict and impeach the story she was about to tell. This type of intentional destruction of key evidence is precisely the type of conduct that warrants the terminating sanction of dismissal of Plaintiff's claims. McMunn v. Memorial Sloan-Kettering Cancer Ctr., 191 F.Supp.2d 440, 446-62 (S.D.N.Y.2002) (dismissing plaintiffs claims for intentionally and in bad faith lying during depositions, destroying potentially critical evidence which could have harmed her case, repeatedly lying and misleading defendant to prevent the deposition of key witnesses, editing certain tapes before turning them over to defendant so that they would provide stronger evidence in plaintiffs favor, and engaging in a sham transaction to unfairly bolster her claim); v. Time—Warner Commc'ns, No. 97 Civ. 7286, 1999 WL 739528, at '2—'4 (S.D.N.Y. Sept. 22, 1999) (granting dismissal where plaintiff deliberately erased a harmful handwritten notation and committed perjury in pre-trial proceedings); Regulatory Fundamentals Grp. LLC v. Governance Risk Mgmt. Compliance, LLC, No. 13 CIV. 2493 KBF, 2014 WL 3844796, at •16 (S.D.N.Y. Aug. 5, 2014) (ordering dismissal of suit and consideration of attorneys' fees and cost of entire suit for intentional spoliation finding any lesser sanction "would fail to account for the prejudice or to sufficiently penalize [Plaintiff] or deter others from engaging in such misconduct"); Gutman v. Klein, No. 03CV I 570(BMCXRML), 2008 WL 4682208, at '12 (E.D.N.Y. Oct. 15, 2008), report and recommendation adopted, No. 03 CIV. 1570 (BMC), 2008 WL 5084182 (E.D.N.Y. Dec. 2, 2008), afFd, 515 F. App'x 8 (2d Cir. 2013) (granting default judgment for permanent deletion of files and noting "lesser sanctions such as adverse inferences arc ill-suited to a case like this, where the spoliator has, in bad faith, irretrievably deleted computer files that likely contained important discovery information").
+
+# Maxwell is entitled to an Adverse Inference Instruction
+
+At a minimum, the purposeful destruction of the journal containing key impeachment evidence, coupled with the destruction or withholding of the "dream book," require the imposition of an adverse inference instruction. An adverse inference instruction can take many forms, again ranging in degrees of harshness. "The harshness of the instruction should be determined based on the nature of the spoliating party's conduct—the more egregious the conduct, the more harsh the instruction." Pension Comm. of Univ. of Montreal Pension Plan, 685 F. Supp. 2d at 70.
+
+I
+
+"When a spoliating party has acted willfully or in bad faith, a jury can be instructed that certain facts are deemed admitted and must be accepted as true. At the next level, when a spoliating party has acted willfully or recklessly, a court may impose a mandatory presumption.- Id. (collecting cases). Here, there is no question that Plaintiff's conduct was willful -- burning or shredding doellsoelitS is the definition of willful conduct. In light of the admitted relevance of the information contained in (or not contained in) the journal, the only way to place the risk of an erroneous judgment on the Plaintiff who wrongfully created the risk by burning key evidence. and restoring Ms. Maxwell to the same position she would have been in absent the wrongful destruction of evidence is through mandatory adverse inference instructions. If the case is not dismissed, the jury should be instructed that Plaintiff purposely ati'litixT , and that the jury should presume that the information contained nigiareiai would have supported Ms. Maxwell's contentions and be detrimental to Plaintiffs claims.
+
+WHEREFORE, Defendant Ghislaine Maxwell request that this Court I) dismiss Plaintiff's claim based on her intentional destruction of evidence, or, in the alternative, 2) tender to the jury an adverse inference instruction that it should presume the information contained in
+
+the destroyed documents would have supported Ms. Maxwell's contentions and been detrimental to Plaintiffs claims.
+
+Dated: December 9, 2016
+
+Respectfully submitted,
+
+/s/ Laura A. Menninger
+
+Laura A. Menninger (LM-I374)
+
+Jeffrey S. iFllir.(pro hac vice
+
+HADDON, AND P.C.
+
+150 East 10 Avenue
+
+Denver, CO 80203
+
+Phone: 303.831.7364
+
+Fax: 303.832.2628
+
+Imenninger(4)hmflaw.com
+
+Attorneys for Ghislaine Maxwell
+
+# CERTIFICATE OF SERVICE
+
+I certify that on December 9, 2016, I electronically served this DEFENDANT'S MOTION FOR SANCTIONS BASED ON INTENTIONAL DESTRUCTION OF EVIDENCE via ECF on the following:
+
+Sigrid S. McCawley Meredith Bows, SCHILLER & FLEXNER, LLP 401 East Las Olas Boulevard, Ste. 1200 Ft. Lauderdale, FL 33301 smccawley@bsfIlp.com mschultz@bsflIp.com
+
+JAFFE, WE1SSING, FISTOS & LEHRMAN, P.L. 425 North Andrews Ave., Ste. 2 Ft. Lauderdale, FL 33301 brad@pathtojustice.com
+
+Paul G. Cassell 383 S. University Street Salt Lake City, UT 84 I 12 cassellp@law.utah.edu
+
+J. Stanley Pottinger 49 Twin Lakes Rd. South Salem, NY 10590 StanPottinger@aol.com
+
+/s/ Nicole Nicole
+
+### UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+X
+
+Plaintiff, v. GHISLAINE MAXWELL, Defendant.
+
+X
+
+15-cv-07433-RWS
+
+### Declaration of Laura A. Menninger in Support of Defendant's Motion For Sanctions Based On Plaintiff's Intentional Destruction Of Evidence
+
+I, Laura A. Menninger, declare as follows:
+
+- I. I am an attorney at law duly licensed in the State of New York and admitted to practice in the United States District Court for the Southern District of New York. I am a member of the law firm Haddon, & P.C., counsel of record for Defendant Ghislaine Maxwell in this action. I respectfully submit this Declaration in Support of Defendant's Motion for Sanctions Based on Plaintiff's Intentional Destruction of Evidence.
+- 2. Attached as Exhibit A (filed under seal) is a true and correct copy of Plaintiff's Second Amended Supplemental Response and Objections to Defendant's First Set of Discovery Requests to Plaintiff, Interrogatory Response 3, dated April 29, 2016.
+- 3. Attached as Exhibit B (filed under seal) are true and correct copies of excerpts from the January 16, 2016 deposition of in the et. ate. Dershowin, designated Caiifitentiahindli
+
+4. Attached as Exhibit C (filed under seal) are true and correct copies of excerpts trom the May 3, 2016 deposition ofacitiineg Catithlitigunder the riotective Order!
+
+5. Attached as Exhibit D (filed under seal) is a true and correct copy of Plaintiff's Second Amended Supplemental Response and Objections to Defendant's First Set of Discovery Request to Plaintiff, dated April 29, 2016.
+
+I declare under penalty of perjury that the foregoing is true and correct.
+
+Dated: December 9, 2016.
+
+s/ Laura A. Menninger Laura A. Menninger
+
+### CERTIFICATE OF SERVICE
+
+I certify that on December 9, 2016, I electronically served this Declaration of Laura A. Menninger in Support of Defendant's Motion For Sanctions Based on Plaintiff's Intentional Destruction of Evidence via ECF on the following:
+
+Sigrid S. McCawley Meredith BOIES, SCHILLER & FLEXNER, LLP 401 East Las Olas Boulevard, Ste. 1200 Ft. Lauderdale, FL 33301 smccawley@bsflIp.com mschultz@bsthp.com
+
+JAFFE, WEISSING, FISTOS & LEHRMAN, P.L. 425 North Andrews Ave., Ste. 2 Ft. Lauderdale, FL 33301 brad@pathtojustice.com
+
+Paul G. Cassell 383 S. University Street Salt Lake City, UT 84112 cassellp@law.utah.edu
+
+J. Stanley Pottinger 49 Twin Lakes Rd. South Salem, NY 10590 StanPottinger®aol.com
+
+/s/ Nicole Nicole

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marker2/court-redacted-v-maxwell-07433/EFTA02801726/EFTA02801726.md

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+UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+X
+
+Plaintiff,
+
+15 Civ. 7433 (RWS)
+
+- against -
+
+ORDER
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+Sweet, D.J.
+
+![](_page_0_Picture_11.jpeg)
+
+The arguments for the motion to quash filed by J. , Defendant's motions in limine, and Plaintiff's motions in limine, previously scheduled for February 2, and the argument for Defendant's motion for summary judgment, previously scheduled for February 9, shall instead be heard at noon on Thursday, February 16, 2017 in Courtroom 18C, United States Courthouse, 500 Pearl Street. All papers shall be served in accordance with Local Civil Rule 6.1.
+
+It is so ordered.
+
+New York, NY
+
+January 2,0 , 2017 W. SWEET U.S.D.J.

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marker2/court-redacted-v-maxwell-07433/EFTA02801727/EFTA02801727.md

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+## UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+Plaintiff,
+
+15 cv 07433 RWS
+
+-against-
+
+GHISLA1NE MAXWELL ORDER FOR ADMISSION PRO HAC VICE
+
+Defendant.
+
+John E. Stephenson, Jr. The motion of for admission to practice Pro Hac Vice in the above captioned action is granted.
+
+Applicant has declared that he/she is a member in good standing of the bar(s) of the state(s) of G00rg 1° • and that his/her contact information is as follows
+
+(please print):
+
+Applicant's Name: I SDNY John E. Stephenson, Jr.
+
+Alston & Bird LLP DOCUMENT Firm Name:
+
+: . ECTRONICALLY FILED I I '•
+
+Address: 1201 West Peachtree Street, N.W.
+
+Atlanta, City / State / Zip: Georgia 30309 L DATE FILED:
+
+Telephone / Fax: (404) 881.7697 / (404) 881-7777
+
+Applicant having requested admission Pro Hac Vice to appear for all purposes as counsel for in the above entitled action;
+
+IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys.
+
+Dated: F•2. 3 4/7
+
+United S s District/Magistrate Judge

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marker2/court-redacted-v-maxwell-07433/EFTA02801728/EFTA02801728.md

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+UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
+
+X
+
+Plaintiff,
+
+- against -
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+Sweet, D.J.
+
+15 Civ. 7433 (RWS)
+
+ORDER
+
+USDC EDNY DOCUMr.\:11 r. nab: I 2.31 17
+
+The sealed letter motion submitted by Plaintiff on January 20, 2017 shall be heard at noon on Thursday, February 2, 2017 in Courtroom 18C, United States Courthouse, 500 Pearl Street. The motion to intervene filed January 19, 2017 shall be heard at noon on Thursday, February 16, 2017 in Courtroom 18C, United States Courthouse, 500 Pearl Street. All papers shall be served in accordance with Local Civil Rule 6.1.
+
+It is so ordered.
+
+New York, NY
+
+January:43r, 2017 ROBERT W. SWEET U.S.D.J. toair

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marker2/court-redacted-v-maxwell-07433/EFTA02801729/EFTA02801729.md

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+UNITED STATES DISTRICT COURT  
+SOUTHERN DISTRICT OF NEW YORK
+
+-----X  
+[REDACTED],
+
+![](_page_0_Picture_91.jpeg)
+
+Plaintiff,
+
+- against -
+
+15 Civ. 7433 (RWS)
+
+O R D E R
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+-----X
+
+Sweet, D.J.
+
+Per the Agreed Letter Motion filed by the parties, the hearing scheduled to take place on Thursday, January 26, 2017 is hereby vacated. The Plaintiff is granted leave to file a response in opposition to the Defendant's motion for summary judgment that is the same page length as the Defendant's motion on the same.
+
+It is so ordered.
+
+New York, NY  
+January 24, 2017
+
+![]()

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marker2/court-redacted-v-maxwell-07433/EFTA02801730/EFTA02801730.md

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+401 EAST LAS OLAS BOULEVARD • SUITE 1200 • FORT LAUDERDALE, FL 33301 • 221 • PH 954.356.0011 • FAX 954.356.0022
+
+Meredith [REDACTED], Esq.  
+[mschultz@bsfllp.com](mailto:mschultz@bsfllp.com)
+
+January 23, 2017
+
+VIA FACSIMILE (212) 805-7925
+
+Hon. Robert W. Sweet  
+United States District Judge  
+United States District Court  
+Daniel [REDACTED] Moynihan Courthouse  
+Southern District of New York  
+500 Pearl Street, Room 1940  
+New York, New York 10007-1312
+
+Re: [REDACTED] v. *Maxwell*,  
+Case No.: 15-cv-07433-RWS
+
+Dear Judge Sweet:
+
+This letter constitutes an Agreed Letter Motion, and an Agreed Notice of Withdrawal, and an Agreed Request to Vacate Hearing, and states as follows.
+
+1. 1. This letter constitutes an Agreed Notice of Withdrawal of [REDACTED] January 11, 2017, letter motion regarding the excess pages in Defendant's Motion for Summary Judgment.
+2. 2. This letter constitutes an Agreed Letter Motion for leave of Court for [REDACTED] to file a response in opposition to Defendant's motion for summary judgment that is the same page length as Defendant's motion on the same.
+3. 3. This letter constitutes an Agreed Request to Vacate the hearing on [REDACTED] January 11, 2017 letter motion, scheduled to take place on Thursday, January 26, 2017.
+
+Sincerely,
+
+![]()Meredith [REDACTED]
+
+MS/
+
+cc: Counsel of Record

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marker2/court-redacted-v-maxwell-07433/EFTA02801731/EFTA02801731.md

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+# United States District Court Southern District of New York
+
+Plaintiff, Case No.: 15-cv-07433-RWS
+
+v.
+
+Ghislaine Maxwell,
+
+Defendant.
+
+/
+
+### PLAINTIFF'S MOTION TO EXCLUDE DEFENDANT'S DESIGNATION OF DEPOSITION EXCERPTS OF ALAN DERSHOWITZ IN AN UNRELATED CASE
+
+Sigrid McCawley BOLES, SCHILLER & FLEXNER LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011
+
+|                                                                    | agg                                                                        |
+|--------------------------------------------------------------------|----------------------------------------------------------------------------|
+| PRELIMINARY STATEMENT                                              | 1                                                                          |
+| FACTUAL BACKGROUND                                                 | I                                                                          |
+| ARGUMENT                                                           | 3                                                                          |
+| I.                                                                 | DERSHOWITZ'S DEPOSITION TESTIMONY FROM ANOTHER CASE IS NOT                 |
+| ADMISSIBLE UNDER FED. R. CIV. P. 32(a)(8).                         | 4                                                                          |
+| A. The Florida State Case Did Not Involve the Same Subject Matter. | 5                                                                          |
+| B. The Florida State Case Did Not Involve the Same Parties         | 6                                                                          |
+| II.                                                                | THE COURT SHOULD USE ITS DISCRETION TO PRECLUDE INTRODUCTION               |
+| OF TESTIMONY FROM A WITNESS                                        | HAS NOT HAD THE                                                            |
+| OPPORTUNITY TO CROSS EXAMINE.                                      | 8                                                                          |
+| A. be Fundamentally Unfair to I                                    | Allowing Excerpts from the Dershowitz Deposition in the Florida Case Would |
+| Transcript is Allowed.                                             | 12                                                                         |
+| III.                                                               | IF THE COURT PERMITS ANY USE OF EXCERPTS FROM THE DEPOSITION,              |
+| CONCLUSION                                                         | 16                                                                         |
+| CERTIFICATE OF SERVICE                                             | 18                                                                         |
+
+#### TABLE OF CONTENTS
+
+### TABLE OF AUTHORITIES
+
+| Cases Arnstein v. Porter,                                           | Page  |
+|---------------------------------------------------------------------|-------|
+| 154 F.2d 464 (2d Cir. 1946) Baldwin-Montrose Chem. Co. v. Rothberg, | 11    |
+| 37 F.R.D. 354 (S.D.N.Y. 1964) Bankers Trust Co. v. Rhoades,         | 12    |
+| 108 B.R. 423 (S.D.N.Y. 1989) Bobb v. Modern Products, Inc.,         | 12    |
+| 648 F.2d 1051 (5th Cir.1981) Duttle v. Bandler & Kass,              | 9     |
+| 127 F.R.D. 46 (S.D.N.Y. 1989) Hertz v. Graham,                      | 9     |
+| 23 F.R.D. 17 (S.D.N.Y. 1958) In re Paramount Payphones, Inc.,       | 12    |
+| 256 B.R. 341 (Bankr. M.D. Fla. 2000)                                | 13    |
+| 199 F.R.D. 369, 371 Napier v. Bossard,                              | 8     |
+| 102 F.2d 467 (2d Cir. 1939) Nash v. Heckler,                        | 11    |
+| 108 F.R.D. 376 (W.D.N.Y.1985) Polozie v. United States,             | 9     |
+| 835 F. Supp. 68 (D. Conn. 1993)                                     | 8     |
+| Powertrain, Inc. v. ■,                                              |       |
+| 88 F. Supp. 3d 679 (N.D. Miss. 2015) United States v. De Sisto,     | 6     |
+| 329 F.2d 929 (2d Cir.) United States v. Intl Bus. Machines Corp.,   | 9     |
+| 90 F.R.D. 377 (S.D.N.Y. 1981)                                       | 4, 11 |
+
+### Rules
+
+| Fed. R. Evid. 32          | 9      |
+|---------------------------|--------|
+| Fed. R. Evid. 32(a)(4)(B) | 11     |
+| Fed. R. Civ. P. 32(aX8)   | passim |
+| Fed. R. Evid. 608(b)      | 10     |
+| Fed. R. Evid. 611(aX1)    | 9      |
+
+### Other Authorities
+
+Plaintiff files this motion to exclude from trial excerpts from a deposition taken of Alan Dershowitz in another case — a Florida state case in which was not a party and did not have an opportunity to cross-examine him.
+
+#### PRELIMINARY STATEMENT
+
+Defendant has designated for use in this trial various excerpts from Dershowitz's deposition in a state court case in which was not a party. Obviously, because she was not a party, did not have the opportunity to cross-examine Dershowitz in this earlier proceeding. Moreover, the earlier proceeding did not revolve around the question of whether was telling the truth about Ms. Maxwell's involvement in sex trafficking, but whether attorneys representing her in a separate case had filed allegation on her behalf concerning Alan Dershowitz with due diligence. Under Fed. R. Civ. P. 32(aX8)'s provision dealing with a "deposition taken in an earlier action," prior deposition testimony can only be used where the earlier deposition involved the same parties and the same subject matter. Because those conditions are not satisfied, the deposition cannot be used here.
+
+In addition, permitting Maxwell to use the deposition against would be fundamentally unfair. Because never had the opportunity to cross-examine Dershowitz, the Court should exercise its discretion to either preclude the use of the transcript or, at the very least, provide with the opportunity to question Dershowitz in a deposition.
+
+Finally, all of the Dershowitz testimony is inadmissible under the Rules of Evidence in any event.
+
+## FACTUAL BACKGROUND
+
+Defendant designated for use in this trial various excerpts from a deposition of Alan Dershowitz taken in a Florida state case entitled J. and Paul G. Cassell v. Alan M. Dershowitz, Case No. CACE 15-000072 (17'h Cir. Ct. for Broward County, Florida). Attorneys and Cassell brought the case against Dershowitz, alleging that he had defamed them by accusing them of having conducted inadequate investigation before filing a motion on behalf in a crime victims' rights action in federal court in Florida. See Jane Doe #1 and Jane Doe #2 v. U.S, No. 9:08-cv-80736 (filed S.D. Fla. 2008).1 On December 30, 2014, and Cassell filed a motion for joinder on (Jane Doe #3's) behalf in that case. See Jane Doe #3 and Jane Doe #4's Motion Pursuant to Rule 21 for Joinder in Action, DE 279 (and as amended DE 280), No. 9:08-cv-80736 (S.D. Fla.). In that motion, alleged that she had been sexually trafficked by Jeffrey Epstein to his friends, including Epstein's close friend and criminal defense attorney, Alan Dershowitz. Thereafter, Dershowitz repeated attacked and Cassell's professionalism in a protracted mass media campaign. and Cassell responded to this attack by bringing a Florida state defamation action Dershowitz. As explained in and Cassell's complaint, filed by their Florida attorney Jack Scarola, the issue was the adequacy of the investigation that they had undertaken before filing the motion for joinder:
+
+Immediately following the filing of what the Defendant, DERSHOWITZ, knew to be an entirely proper and well-founded pleading, DERSHOWITZ initiated a massive public media assault on the reputation and character of J. and PAUL G. CASSELL accusing them of intentionally lying in their filing, of having leveled knowingly false accusations against the Defendant, DERSHOWITZ, without ever conducting any investigation of the credibility of the accusations, and of having acted unethically to the extent that their willful misconduct warranted and required disbarment.
+
+See McCawley Dec., Exhibit 1 (Complaint) at p. 4 ¶ 17. Dershowitz later filed a defamation counterclaim and Cassell.
+
+<sup>1</sup> Jane Doe #1 and Jane Doe #2 are persons other than
+
+As the defamation case proceeded in Florida state court, and Cassell took Dershowitz's deposition, on October 15 and 16, 2015, and a second time on January 12, 2016. As indicated in the case caption, was not a party to that lawsuit, which was between and Cassell on the one hand, and Dershowitz on the other. But because certain collateral issues concerning her privacy were at stake, Sigrid McCawley) was allowed to attend the depositions.
+
+The and Cassell's defamation case did not turn on whether allegations against Dershowitz were true, but rather whether they, as her attorneys, had adequately investigated her allegations before filing them. As and Cassell explained in their motion for summary judgment:
+
+The central issue upon which and Cassell's complaint rest is not whether claims were true, but instead whether Dershowitz lacked any basis whatsoever to support his claims that and Cassell not only knew that the statements were false but indeed actively participated in fabricating false statements. The record is completely devoid of evidence to support the existence of any such basis.
+
+McCawley Dec., Exhibit 2 (Summary Judgment Motion) at 12.
+
+Ultimately, before the Florida court could rule on and Cassell's summary judgment motion, Dershowitz chose to settle the case. The financial and other terms associated with the settlement are confidential.
+
+# ARGUMENT
+
+The Court should not permit the Defendant to use at trial in this case excerpts from Dershowitz's deposition in the Florida state defamation case involving did not have the opportunity to cross-examine Dershowitz in that case, which revolved around whether the two attorneys had acted in good faith when they filed allegations for allegations were true or false. Moreover, the allegations at issue in that case involved Dershowitz — not the Defendant. Accordingly, the provisions of 32(a)(8) of the Federal Rules of Civil Procedure for admitting a deposition in another case are not satisfied.
+
+In addition, the Court should exercise its discretion and bar use of the deposition. El never had the opportunity to cross-examine Dershowitz and the Defendant has not explained why she is resorting to presenting deposition testimony rather than calling him as a live witness. At the very least, should have the opportunity to depose Dershowitz before his deposition testimony is presented against her.
+
+Finally, virtually all of excerpts that Defendant has designated are inadmissible for other evidentiary reasons as well.
+
+### I. DERSHOWITZ'S DEPOSITION TESTIMONY FROM ANOTHER CASE IS NOT ADMISSIBLE UNDER FED. R. CIV. P. 32(A)(8).
+
+The Federal Rules of Civil Procedure are premised on the belief that justice is best served when witnesses appear at trial to be examined and cross-examined by both parties. As this Court has explained, "There is a strong preference for live testimony, long recognized by the courts, as it provides the trier of fact the opportunity to observe the demeanor of the witness. " United States v. Intl Bus. Machines Corp., 90 F.R.D. 377, 381 (S.D.N.Y. 1981). Of course, if it is not possible for a witness to appear live at trial, the Federal Rules of Civil Procedure also provide for depositions to obtain and preserve testimony, as well as a giving both parties an opportunity to ask any necessary questions.
+
+Because of this preference for live testimony, or at the very least testimony secured during pre-trial proceedings in which all parties to a lawsuit can participate, the Rules of Civil Procedure restrict the circumstances in which depositions taken in other cases can be used at a
+
+trial. Under Fed. R. Civ. P. 32(a)(8), a deposition taken in a different case can be used only in very limited circumstances:
+
+Deposition Taken in an Earlier Action. A deposition lawfully taken and, if required, filed in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action.
+
+Under the plain terms of this rule, the Dershowitz deposition taken in the Florida state case cannot be used in this case for two separate and independent reasons: First, that Florida state defamation case and this one do not involve "the same subject matter;" and, second, the earlier Florida state case did not involve the "same parties."
+
+# A. The Florida State Case Did Not Involve the Same Subject Matter.
+
+As this Court has previously summarized, "[t]his bitterly contested defamation action turns on the truth or falsity of statements made by al concerning sexual abuse of minors in which she stated that the Defendant participated, statements which [Defendant] stated were false, giving rise to this action." Sealed Opinion, Nov. 2, 2016, at 16. In clear contrast, the Florida state action did not involve "the same subject matter — i.e., it did not involve the Defendant's participation in procuring girls and young women as part of Epstein's sex trafficking enterprise. Indeed, the Defendant is not even mentioned in that Florida complaint, as the Court can determine with a quick word search. McCawley Dec. Exhibit I (Complaint) at 12.
+
+Instead of concerning Defendant Maxwell's involvement in sex trafficking, the Florida state action involved the actions of and Cassell, two lawyers who were accused by Dershowitz of having failed to adequately investigate allegations made by their client before filing those claims. The central issue upon which and Cassell's complaint rested was "not whether claims were true, but instead whether Dershowitz lacked any basis whatsoever to support his claims that and Cassell not only knew that the statements were false but indeed actively participated in fabricating false statements." McCawley Dec., Exhibit 2 (Summary Judgment Motion) at 12. Put another way, the Florida state case involved the actions of lawyers, not the actions of any client.
+
+In light of these stark differences, the earlier case did not involve "the same subject matter," which is a prerequisite to the admissibility of Dershowitz's deposition here. See, e.g., Powertrain, Inc. v... 88 F. Supp. 3d 679, 690-91 (N.D. Miss. 2015), aff'd, 640 F. App'x 263 (5th Cir. 2016) (actions did not involve "the same subject matter" when, although engines referred to in both cases were the same, one case involved trademark infringement issues and the second case involved import and sale of engines that allegedly violated EPA standards).
+
+### B. The Florida State Case Did Not Involve the Same Parties.
+
+A second reason requiring the exclusion of the Dershowitz deposition is that the earlier action did not involve the same parties. The earlier action was brought by attorneys and Cassell (represented by Florida lawyer Jack Scarola) against Dershowitz. was not a party to that action.
+
+Under Fed. R. Civ. P. 32(aX8), a deposition taken in a different case can be used only where the earlier case involved "the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action." and Cassell were obviously not "the same party" as Nor were they her "representative" in that lawsuit. A "representative" is conventionally defined as loine who stands for or acts on behalf of another. . . . See Agent." BLACK'S LAW DICTIONARY 1328 (8th ed. 2004). and Cassell were acting on their own behalves when sued to protect their reputations — not acting on behalf. Nor were and Cassell "successors in interest" to . A "successor in interest" is conventionally defined as "[o]ne who follows another in ownership or control of property." BLACK'S LAW DICTIONARY 1473 (8th ed. 2004). had no property interest of her own at stake in defamation case, much less one that became successors to. and Cassell
+
+To be sure, when they filed their defamation action against Dershowitz, and Cassell were representing at that time in a separate lawsuit (a pro bono Crime Victims' Rights Act) and continue to serve as part of ►egal **team in this case, along with lead counsel David Boies and Sigrid McCawley of the Boies Schiller law firm. But the two attorneys had their own legal interests at stake in the defamation action that they filed — i.e., their own reputational interests as competent and ethical attorneys. That is why their summary judgment motion emphasized that their defamation action against Dershowitz turned "not whether claims were true, but instead whether Dershowitz lacked any basis whatsoever to support his claims that and Cassell not only knew that the statements were false but indeed actively participated in fabricating false statements." McCawley Dec. Exhibit 2 (Summary Judgment Motion) at 12. Indeed, because of the separate interests involved, had her own attorney — Sigrid McCawley Esq. — representing her.** 
+
+**It is also important to understand that while Ms. McCawley attended the deposition of Dershowitz, she was not permitted to cross-examine him. Instead, Ms. McCawley's very limited role was simply to insure that interests were protected. For example, Ms. McCawley objected when Dershowitz improperly disclosed confidential settlement discussions he had with David Boies, one of attorneys.2 But was not a party to the Florida state lawsuit and was unable to protect her own interests when Dershowitz was deposed.** 
+
+**Nor were there similar motives for cross-examination in the Florida defamation action as there would have been had Dershowitz been deposed in this case. Most important, Defendant** 
+
+**<sup>2</sup> See note 8, infra.** 
+
+Maxwell's involvement in Epstein's sex trafficking scheme was simply not a part of that earlier litigation. The attorneys who questioned Dershowitz would not have had any reason to flesh out Maxwell's role because it made no difference who had trafficked to Dershowitz. See Polozie v. United States, 835 F. Supp. 68, 71-72 (D. Conn. 1993) (finding deposition inadmissible because" motive for investigation in the deposition was not the same as motive for cross examination at trial").
+
+Indeed, a clear illustration of the fact that the attorneys deposing Dershowitz had little incentive to develop testimony about Maxwell is the fact that, while Dershowitz was questioned for three days, spanning some 457 pages of testimony, Maxwell's name is only mentioned a handful to times, and there was no effort in any of those times to pin down what Dershowitz knew about Maxwell's involvement in Epstein's sex trafficking ring. Cf. Mid—West Nat Life Ins. Co. of Tennessee v. Brewn, 199 F.R.D. 369, 371 (N.D. Fla. 2001) (deposition of insured would not be admissible against assignee of insured, which had been added to insurer's action for rescission after insured's deposition was taken, because the insured's motivations in deposition would not be the same as those of the assignee).
+
+For all these reasons, the Dershowitz deposition excerpts are simply inadmissible in this case under Fed. R. Civ. P. 32(a)(8).
+
+#### II. THE COURT SHOULD USE ITS DISCRETION TO PRECLUDE INTRODUCTION OF TESTIMONY FROM A WITNESS HAS NOT HAD THE OPPORTUNITY TO CROSS EXAMINE.
+
+### A. Allowing Excerpts from the Dershowitz De osition in the Florida Case Would he Fundamentally Unfair to
+
+In addition to the fact the Federal Rules of Civil Procedure bar admission of Dershowitz's deposition testimony taken in a separate case by attorneys for different parties, the Court also retains discretion to preclude introduction of the deposition. As the Court has previously explained, even where a deposition is admissible under Rule 32, "the courts retain discretion to preclude the admission of deposition transcripts." See Duttle v. Bandler & Kass, 127 F.R.D. 46, 49 (S.D.N.Y. 1989) (citing Bobb v. Modern Products, Inc., 648 F.2d 1051, 1055 (5th Cir.1981)); see also Fed. R. Evid. 611(a)(1) giving the court ability to control "over the mode and order of examining witnesses and presenting evidence" so as to "make those procedures effective for determining the truth"). As the Duttle Court has explained, this ability to exclude deposition testimony "is at least in part attributable to the preference for live testimony and for subjecting the witness to the crucible of cross-examination." Duttle, 127 F.R.D. at 49 (citing United States v. De Sisto, 329 F.2d 929, 934 (2d Cir.), cert. denied, 377 U.S. 979 (1964); Nash v. Heckler, 108 F.R.D. 376, 377 (W.D.N.Y.1985)).
+
+In exercising discretion to decide whether to allow use of the deposition, the Court must "weigh the prejudice suffered by the objecting party if the deposition is admitted against that suffered by the party offering the deposition if it is excluded." Duttle, 127 F.R.D. at 49. Here, the prejudice to would be substantial if the deposition is presented to the jury. The jury will hear testimony from Dershowitz which she has been unable to cross-examine or otherwise develop to support her theory of the case. Here, for example, is one of the excerpts that Defendant proposes to introduce into the trial:
+
+![](_page_12_Picture_3.jpeg)
+
+McCawley Dec. Composite Exhibit 3 Dershowitz Dep. Tr. Vol. 3 at 364:22-365:14.
+
+As the Court can readily see, Dershowitz's statements are not only riddled with impermissible opinions, ad hominem attacks, inflammatory language, and speculative conclusions,3 it is highly prejudicial to case. But because of the procedural posture of that Florida state law case, there was no follow-up or attempt to cross-examine Dershowitz about what he was saying about credibility.°
+
+On the other hand, any unfair prejudice to defendant is insubstantial.5 To begin with, Dershowitz is a sideshow to this case. The main event is whether Ms. Maxwell herself was involved in Epstein's sex trafficking enterprise. She is, of course, free to testify and produce all relevant witnesses on that central issue. Whether or not Dershowitz was one of the persons who received sexual favors from the enterprise is a not a central issue.
+
+Moreover, Defendant can offer no good reason for failing to have deposed Dershowitz her joint defense partner — during the discovery phase of this case. Defendant's failure to depose Dershowitz, and subject him to cross examination, suggests that Defendant wanted to ambush by introducing deposition testimony that she had not had an opportunity to crossexamine.
+
+Dershowitz has no first-hand knowled e
+
+The fact that Defendant would attempt to use evidence so clearly inadmissible under the rules of evidence is troubling. Dershowitz's statements n subjects for which he lacks knowledge. See Fed. R. Evid. 608(b). This is not an isolated exam le as Defendant has repeatedly desi ated for use in this trial similar inadmissible opinions See e 422:9-13
+
+<sup>• 423:6-7</sup> 
+
+See, e.g., 436:8-14.
+
+So that the Court can evaluate the deposition excerpts in question, they are attached as an exhibit to this motion. See McCawley Dec. Composite Exhibit 3, Dershowitz Dep. Tr. Vol. 3.
+
+Defendant has also not explained why she is resorting to the maneuver of using a deposition from a separate case rather than calling Dershowitz to testify live before the jury at trial here. Perhaps the reason is that, at the deposition, Dershowitz was able to inject all sorts of irrelevant and prejudicial material without a judge being present to prevent these improper actions. In any event, no reason exists for resorting to this second-best testimony. “As Judge Learned Hand stated, ‘[t]he deposition has always been, and still is, treated as a substitute, a second-best, not to be used when the original is at hand.’” *United States v. Int’l Bus. Machines Corp.*, 90 F.R.D. 377, 381 (S.D.N.Y. 1981) (*Napier v. Bossard*, 102 F.2d 467, 469 (2d Cir. 1939); *see Arnstein v. Porter*, 154 F.2d 464, 470 (2d Cir. 1946)).
+
+As the Court is aware, the Defendant and Dershowitz are closely aligned in this case and, indeed, they appear to have a Joint Defense Agreement. If Dershowitz is now going to conveniently absent himself from the trial, this absence would appear to be due to a plan hatched between Defendant and Dershowitz. *Cf.* Fed. R. Evid. 32(a)(4)(B) (explaining that a witness cannot be considered to be “unavailable” where “it appears that the witness’s absence was procured by the party offering the deposition”).
+
+As the Court is also aware, Dershowitz filed a motion to intervene in this case, [REDACTED]
+
+[REDACTED] *See* Sealed Opinion, Nov. 2, 2016, at 15-16.<sup>6</sup> [REDACTED]
+
+[REDACTED]
+
+Maxwell has not explained why she did not subpoena Dershowitz to appear in this case, either for a deposition earlier in the case or at the upcoming trial. Lacking any such explanation, the Court should use its discretion to preclude use of these excerpts.
+
+---
+
+<sup>6</sup> [REDACTED]
+
+Should At Least Be Permitted to Depose Dershowitz if Deposition Transcript is Allowed.
+
+At the very least, before the Court allows Defendant to deploy the Dershowitz deposition here, should be given the opportunity to cross-examine Dershowitz, specifically with regard to the deposition excerpts which Defendant proposes to use. This Court has adopted a similar approach in many other cases when a party has proposed using depositions from an earlier action that the other parties have not had an opportunity to challenge. See, e.g., Bankers Trust Co. v. Rhoades, 108 B.R. 423, 431 (S.D.N.Y. 1989) ("Nor does a holding that the prior depositions are treated as if originally taken in this action hinder Soifer and Braten's ability to defend themselves from Bankers' allegations. Soifer and Braten retain the opportunity to take further depositions . . . to correct or clarify their testimony in the prior depositions."); Hertz v. Graham, 23 F.R.D. 17, 23 (S.D.N.Y. 1958) ("The plaintiff should be allowed to read the depositions taken in [the earlier case] .... Furthermore, if the defendant wishes, she may proceed to take further depositions wherever necessary, to amplify, clarify or correct any prior depositions."); Baldwin-Montrose Chem. Co. v. Rothberg, 37 F.R.D. 354, 356 (S.D.N.Y. 1964) ("The defendants will have had their full opportunity to cross-examine the deponents in the [earlier] action . . . and the right to conduct further discovery proceedings on matters not covered in the [earlier] depositions and interrogatories. They are therefore not prejudiced by [allowing use of depositions from the earlier action]."); cf. In re Paramount Payphones, Inc., 256 B.R. 341, 345 (Barth. M.D. Fla. 2000) (refusing to admit depositions taken in an earlier proceeding even though party seeking to use the deposition had "stated willingness to allow the defendants to further depose the witnesses and to file supplemental depositions"). If the Court is inclined to allow the earlier deposition transcript to be used by Defendant, Defendant will suffer less prejudice if is given an opportunity to depose Dershowitz herself and secure testimony that will be useful to her case at trial.
+
+Giving an opportunity to depose Dershowitz is particularly important because the existing deposition transcript is heavily "polluted" by Dershowitz's failure to confine his answers to the questions he was asked. As a result, cross-designating material from the existing transcript is quite difficult.
+
+For all these reasons, the Court should also exercise its discretion to exclude the deposition transcript or, at a minimum, allow to take Dershowitz's Deposition.
+
+#### III. IF THE COURT PERMITS ANY USE OF EXCERPTS FROM THE DEPOSITION, SHOULD BE PERMITTED TO RAISE EVIDENTIARY OBJECTIONS AND CROSS-DESIGNATE O1 I I TR P ARTS OF THE DEPOSITION.
+
+For all the foregoing reasons, Dershowitz deposition should not be admitted. But if the court is inclined to allow portions of the deposition into this trial, a whole host of evidentiary issues would arise regarding admissibility. is simultaneously lodging evidentiary objections to Dershowitz's testimony, which is riddled with hearsay, improper opinions, confidential settlement discussions, and other inflammatory and prejudicial materials. See McCawley Dec. Exhibit 4 (objections and cross-designations). While would request leave to supplement her objections and provide appropriate cross designations if the Court rejects her motion in limine, it may be appropriate for to discuss now some of the deposition excerpts to illustrate the manifold problems that will arise if the excerpts are allowed.
+
+Consider, for example one of the first paragraphs that Defendant has designated for use in the trial:
+
+![](_page_16_Picture_6.jpeg)
+
+[Redacted text block consisting of multiple lines of blacked-out content]
+
+*See* McCawley Dec. Composite Exhibit 3, Dershowitz Dep. Tr. Vol. 1 at 42:21-44:17.
+
+As the Court can readily see, this passage is riddled with inadmissible statements. First of all, [Redacted] [Redacted] [Redacted] <sup>7</sup> More important, Dershowitz obviously has no way of providing admissible testimony from his first hand observation of what [Redacted] [Redacted] and his (entirely unfounded) speculation is obviously inadmissible.
+
+Moreover, Dershowitz's reference to [Redacted] [Redacted] is clearly recounting second-hand, hearsay information. Dershowitz
+
+<sup>7</sup> Similar problems infect other parts of the designated Dershowitz transcript, such as portions [Redacted] [Redacted] See, e.g., 119:3-121:5; Vol. 2, 39:13-41:2; Vol. 2, 42:3-43:13; Vol. 2, 57:1-20.
+
+cannot be called to recount
+
+Portions of the deposition that Defendant has designation also simply involve See, e.g., 141:13-142:25; 159:2-15; Vol. 2, 43:20-44:13; 356:11-357:8; 364:22-365:14. Of course, The documents will speak for themselves assuming, of course, that they can properly be introduced into evidence.
+
+Introducing parts of Dershowitz's testimony would also require complicated issues of what materials can be cross-designated. Dershowitz clearly said a number of things that were helpful to . For example, For example,
+
+See McCawley Dec. at Composite Exhibit 3, Dershowitz Depo., Vol. 3, 427:9-14. would need to designate significant parts of the Dershowitz transcript to respond to the misleading impression that the designations offered by Defendant would create. And as the
+
+<sup>8</sup> Similar hearsay problems riddle all of references See, e.g., 45:1-21; 47:12-48:5; 50:6-18; 51:19-52:17; 54:2-14; 75:11-80:20; Vol. 2 47:648:13• Vol. 2 50:2-17. Indeed some of these .assa les contain double or tri . le hearsa .roblems Dershowitz also a statements at other nts in his testimony. See, e Vol. 2 85:2-23 373:15-23 113:17-114:21 • 396:15-397:8 371:10-19. 372:1-20• ; 418:20-420:22 (
+
+Court can tell from just the few passages indicated above, redacting inadmissible and prejudicial statements inserted by Dershowitz into the transcript will be a time consuming and challenging task — a task that is unlikely to ultimately produce excerpts that fairly provide to the jury responsive evidence that is entitled to present. While respectfully requests leave to make those designations if the Court admits excerpts from the Dershowitz deposition, the more appropriate course is for the Court to exclude the deposition entirely.
+
+has attempted to pull together an initial list of cross-designations, as well as an initial list of objections to Defendant's designations. For the convenience of the Court, they are attached to this pleading. See McCawley Dec. Exhibit 4 (objections and cross-designations). These objections are substantial and should lead to the exclusion of Dershowitz's deposition in its entirety because his testimony is simply inadmissible under the Rules of Evidence.
+
+#### CONCLUSION
+
+For all of the foregoing reasons, respectfully requests that Court exclude from the case the excerpts from the deposition of Alan Dershowitz that have been offered by the Defendant.
+
+Dated: January 27, 2017
+
+Respectfully Submitted,
+
+BOLES, SCHILLER & FLEXNER LLP
+
+By: /s/ Sigrid McCawley Sigrid McCawley (Pro Hac Vice) Boies Schiller & Flexner LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011
+
+David Boies
+
+Boles Schiller & Flexner LLP 333 Main Street Armonk, NY 10504
+
+a J.t (Pro Hac Vice) JAFFE, WEISSING, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820
+
+Paul G. Cassell (Pro Hac Vice) S.J. Quinney College of Law University of Utah 383 University St. Salt Lake City, UT 84112 (801) 585-52029
+
+<sup>9</sup> This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah for this private representation.
+
+#### CERTIFICATE OF SERVICE
+
+I HEREBY CERTIFY that on January 27, 2017, 1 electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing document is being served this day on the individuals identified below via transmission of Notices of Electronic Filing generated by CM/ECF.
+
+Laura A. Menninger, Esq. Jeffrey Paglitai la HADDON, 150 East 10 Avenue Denver, Colorado 80203 Tel: (303) 831-7364 Fax: (303) 832-2628 Email: Imenningerahmflaw.com jpagliuca@hrnflaw.com , P.C.
+
+/s/ Sigrid S. McCawley Sigrid S. McCawley

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marker2/court-redacted-v-maxwell-07433/EFTA02801753/EFTA02801753.md

@@ -0,0 +1,174 @@
+# Exhibit 1
+
+**United States District Court  
+Southern District of New York**
+
+[REDACTED],
+
+Plaintiff,
+
+CASE NO: \_\_\_\_\_
+
+v.
+
+GHISLAINE MAXWELL,
+
+Defendant.
+
+\_\_\_\_\_/
+
+**COMPLAINT**
+
+Boies Schiller & Flexner LLP  
+575 Lexington Avenue  
+New York, NY 10022  
+(212) 446-2300
+
+Plaintiff, , formerly known as for her Complaint against Defendant, GH1SLAINE MAXWELL ("Maxwell"), avers upon personal knowledge as to her own acts and status and otherwise upon information and belief:
+
+### NATURE OF THE ACTION
+
+1. This suit arises out of Defendant Maxwell's defamatory statements against Plaintiff As described below, was a victim of sexual trafficking and abuse while she was a minor child. Defendant Maxwell not only facilitated that sexual abuse but, most recently, wrongfully subjected to public ridicule, contempt and disgrace by, among other things, calling a liar in published statements with the malicious intent of discrediting and further damaging worldwide.
+
+## JURISDICTION AND VENUE
+
+2. This is an action for damages in an amount in excess of the minimum jurisdictional limits of this Court.
+
+3. This Court has jurisdiction over this dispute pursuant to 28 U.S.C. §1332 (diversity jurisdiction) as and Maxwell are citizens of different states and the amount in controversy exceeds seventy-five thousand (\$75,000), exclusive of interest and costs.
+
+4. This Court has personal jurisdiction over Maxwell. Maxwell resides in New York City, and this action arose, and defamatory statements were made, within the Southern District of New York.
+
+5. Venue is proper in this Court as the cause of action arose within the jurisdiction of this Court.
+
+# PARTIES
+
+- 6. Plaintiff is an individual who is a citizen of the State of Colorado.
+- 7. Defendant Maxwell, who is domiciled in the Southern District of New York, is not a citizen of the state of Colorado.
+
+# FACTUAL ALLEGATIONS
+
+- 8. became a victim of sex trafficking and repeated sexual abuse after being recruited by Ghislaine Maxwell and Jeffrey Epstein when was under the age of eighteen.
+- 9. Between 1999 and 2002, with the assistance and participation of Maxwell, Epstein sexually abused at numerous locations including his mansions in West Palm Beach, Florida, and in this District. Between 2001 and 2007, with the assistance of numerous co-conspirators, Epstein abused more than thirty (30) minor underage girls, a fact confirmed by state and federal law enforcement.
+- 10. As part of their sex trafficking efforts, Epstein and Maxwell intimidated into remaining silent about what had happened to her.
+- I. In September 2007, Epstein entered into a Non-Prosecution Agreement ("NPA") that barred his prosecution for numerous federal sex crimes in the Southern District of Florida.
+- 12. In the NPA, the United States additionally agreed that it would not institute any federal criminal charges against any potential co-conspirators of Epstein.
+- 13. As a co-conspirator of Epstein, Maxwell was consequently granted immunity in the Southern District of Florida through the NPA.
+- 14. Epstein ultimately pled guilty to procuring a minor for prostitution, and is now a registered sex offender.
+
+15. Rather than confer with the victims about the NPA, the U.S. Attorney's Office and Epstein agreed to a "confidentiality" provision in the Agreement barring its disclosure to anyone—including Epstein's victims. As a consequence, the victims were not told about the NPA.
+
+16. On July 7, 2008, a young woman identified as Jane Doe No. 1, one of Jeffrey Epstein's victims (other than ), filed a petition to enforce her rights under the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. 1 3771, alleging that the Government failed to provide her the rights promised in the CVRA with regard to the plea arrangement with Epstein. The litigation remains ongoing.
+
+17. On or about May 4, 2009, —identified then as Jane Doe No. 102—filed a complaint against Jeffrey Epstein in the United States District Court for the Southern District of Florida. The complaint included allegations made by that pertained to Maxwell.
+
+18. In pertinent part, the Jane Doe No. 102 complaint described in detail how Maxwell recruited (who was then a minor girl) to become a victim of sex trafficking by introducing to Jeffrey Epstein. With the assistance of Maxwell, Epstein was able to sexually abuse for years until eventually escaped.
+
+19. The Jane Doe No. 102 complaint contained the first public allegations made on behalf of regarding Maxwell.
+
+20. As civil litigation against Epstein moved forward on behalf of and many other similarly-situated victims, Maxwell was served with a subpoena for deposition. Her testimony was sought concerning her personal knowledge and role in Epstein's abuse of and others.
+
+21. To avoid her deposition, Maxwell claimed that her mother fell deathly ill and that consequently she was leaving the United States for London with no plans of ever returning. In fact, however, within weeks of using that excuse to avoid testifying, Maxwell had returned to New York.
+
+22. In 2011, two FBI agents located in Australia—where she had been hiding from Epstein and Maxwell for several years—and arranged to meet with her at the U.S. Consulate in Sidney. provided truthful and accurate information to the FBI about Epstein and Maxwell's sexual abuse.
+
+23. Ultimately, as a mother and one of Epstein's many victims, believed that she should speak out about her sexual abuse experiences in hopes of helping others who had also suffered from sexual trafficking and abuse.
+
+24. On December 23, 2014, incorporated an organization called Victims Refuse Silence, Inc., a Florida not-for-profit corporation.
+
+25. intended Victims Refuse Silence to change and improve the fight against sexual abuse and human trafficking. The goal of her organization was, and continues to be, to help survivors surmount the shame, silence, and intimidation typically experienced by victims of sexual abuse. has now dedicated her professional life to helping victims of sex trafficking.
+
+26. On December 30, 2014, moved to join the on-going litigation previously filed by Jane Doe 1 in the Southern District of Florida challenging Epstein's non-prosecution agreement by filing her own joinder motion.
+
+27. motion 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.
+
+28. In January, 2015, Maxwell undertook a concerted and malicious campaign to discredit and to so damage her reputation that Ms factual reporting of what had happened to her would not be credited.
+
+29. As part of Maxwell's campaign she directed her agent, Gow, to attack honesty and truthfulness and to accuse of lying.
+
+30. On or about January 3, 2015, speaking through her authorized agent, Maxwell issued an additional false statement to the media and public designed to maliciously discredit . That statement contained the following deliberate falsehoods:
+
+- (a) That Ms sworn allegations "against Ghislaine Maxwell are untrue."
+- (b) That the allegations have been "shown to be untrue."
+- (c) That Ms "claims are obvious lies."
+
+31. Maxwell's January 3, 2015, statement incorporated by reference "Ghislaine Maxwell's original response to the lies and defamatory claims remains the same," an earlier statement that had falsely described Ms factual assertions as "entirely false" and "entirely untrue."
+
+32. Maxwell made the same false and defamatory statements as set forth above, in the Southern District of New York and elsewhere in a deliberate effort to maliciously discredit and silence her efforts to expose sex crimes committed around the world by Maxwell, Epstein, and other powerful persons. Maxwell did so with the purpose and effect of having
+
+others repeat such false and defamatory statements and thereby further damaged reputation.
+
+33. Maxwell made her statements to discredit in close consultation with Epstein. Maxwell made her statements knowing full well they were false.
+
+34. Maxwell made her statements maliciously as part of an effort to conceal sex trafficking crimes committed around the world by Maxwell, Epstein and other powerful persons.
+
+35. Maxwell intended her false and defamatory statements set out above to be broadcast around the world and to intimidate and silence from making further efforts to expose sex crimes committed by Maxwell, Epstein, and other powerful persons.
+
+36. Maxwell intended her false statements to be specific statements of fact, including a statement that she had not recruited an underage for Epstein's abuse. Maxwell's false statements were broadcast around the world and were reasonably understood by those who heard them to be specific factual claims by Maxwell that she had not helped Epstein recruit or sexually abuse and that was a liar.
+
+37. On or about January 4, 2015, Maxwell continued her campaign to falsely and maliciously discredit . When a reporter on a Manhattan street asked Maxwell about allegations against Maxwell, she responded by saying: "I am referring to the statement that we made." The New York Daily News published a video of this response by Maxwell indicating that she made her false statements on East 65th Street in Manhattan, New York, within the Southern District of New York.
+
+## COUNT I DEFAMATION
+
+1. Plaintiff re-alleges paragraphs I - 37 as if the same were fully set forth herein. Maxwell made her false and defamatory statements deliberately and maliciously with the intent to intimidate, discredit and defame
+
+2. In January 2015, and thereafter, Maxwell intentionally and maliciously released to the press her false statements about in an attempt to destroy reputation and cause her to lose all credibility in her efforts to help victims of sex trafficking.
+
+3. Maxwell additionally released to the press her false statements with knowledge that her words would dilute, discredit and neutralize public and private messages to sexual abuse victims and ultimately prevent from effectively providing assistance and advocacy on behalf of other victims of sex trafficking, or to expose her abusers.
+
+4. Using her role as a powerful figure with powerful friends, Maxwell's statements were published internationally for the malicious purpose of further damaging a sexual abuse and sexual trafficking victim; to destroy reputation and credibility; to cause the world to disbelieve and to destroy efforts to use her experience to help others suffering as sex trafficking victims.
+
+5. Maxwell, personally and through her authorized agent, Gow, intentionally and maliciously made false and damaging statements of fact concerning =, as detailed above, in the Southern District of New York and elsewhere.
+
+6. The false statements made by Gow were all made by him as Maxwell's authorized agent and were made with direct and actual authority from Maxwell as the principal.
+
+7. The false statements that Maxwell made personally, and through her authorized agent Gow, not only called truthfulness and integrity into question, but also exposed to public hatred, contempt, ridicule, and disgrace.
+
+8. Maxwell made her false statements knowing full well that they were completely false. Accordingly, she made her statements with actual and deliberate malice, the highest degree of awareness of falsity.
+
+9. Maxwell's false statements constitute libel, as she knew that they were going to be transmitted in writing, widely disseminated on the intemet and in print. Maxwell intended her false statements to be published by newspaper and other media outlets internationally, and they were, in fact, published globally, including within the Southern District of New York.
+
+10. Maxwell's false statements constitute libel per se inasmuch as they exposed to public contempt, ridicule, aversion, and disgrace, and induced an evil opinion of her in the minds of right-thinking persons.
+
+II. Maxwell's false statements also constitute libel per se inasmuch as they tended to injure in her professional capacity as the president of a non-profit corporation designed to help victims of sex trafficking, and inasmuch as they destroyed her credibility and reputation among members of the community that seeks her help and that she seeks to serve.
+
+12. Maxwell's false statements directly stated and also implied that in speaking out against sex trafficking acted with fraud, dishonesty, and unfitness for the task. Maxwell's false statements directly and indirectly indicate that lied about being recruited by Maxwell and sexually abused by Epstein and Maxwell. Maxwell's false statements were reasonably understood by many persons who read her statements as conveying that specific intention and meaning.
+
+13. Maxwell's false statements were reasonably understood by many persons who read those statements as making specific factual claims that was lying about specific facts.
+
+14. Maxwell specifically directed her false statements at true public description of factual events, and many persons who read Maxwell's statements reasonably understood that those statements referred directly to account of her life as a young teenager with Maxwell and Epstein.
+
+15. Maxwell intended her false statements to be widely published and disseminated on television, through newspapers, by word of mouth and on the interne.. As intended by Maxwell, her statements were published and disseminated around the world.
+
+16. Maxwell coordinated her false statements with other media efforts made by Epstein and other powerful persons acting as Epstein's representatives and surrogates. Maxwell made and coordinated her statements in the Southern District of New York and elsewhere with the specific intent to amplify the defamatory effect those statements would have on reputation and credibility.
+
+17. Maxwell made her false statements both directly and through agents who, with her general and specific authorization, adopted, distributed, and published the false statements on Maxwell's behalf. In addition, Maxwell and her authorized agents made false statements in reckless disregard of their truth or falsity and with malicious intent to destroy reputation and credibility; to prevent her from further disseminating her life story; and to cause persons hearing or reading descriptions of truthful facts to disbelieve her entirely. Maxwell made her false statements wantonly and with the specific intent to maliciously damage good name and reputation in a way that would destroy her efforts to administer her non-profit foundation, or share her life story, and thereby help others who have suffered from sexual abuse.
+
+IS. As a result of Maxwell's campaign to spread false, discrediting and defamatory statements about suffered substantial damages in an amount to be proven at trial.
+
+19. Maxwell's false statements have caused, and continue to cause, economic damage, psychological pain and suffering, mental anguish and emotional distress, and other direct and consequential damages and losses.
+
+20. Maxwell's campaign to spread her false statements internationally was unusual and particularly egregious conduct. Maxwell sexually abused and helped Epstein to sexually abuse , and then, in order to avoid having these crimes discovered, Maxwell wantonly and maliciously set out to falsely accuse, defame, and discredit . In so doing, Maxwell's efforts constituted a public wrong by deterring, damaging, and setting back efforts to help victims of sex trafficking. Accordingly, this is a case in which exemplary and punitive damages are appropriate.
+
+21. Punitive and exemplary damages are necessary in this case to deter Maxwell and others from wantonly and maliciously using a campaign of lies to discredit and other victims of sex trafficking.
+
+# PRAYER FOR RELIEF
+
+WHEREFORE, Plaintiff respectfully requests judgment against Defendant Maxwell, awarding compensatory, consequential, exemplary, and punitive damages in an amount to be determined at trial, but in excess of the \$75,000 jurisdictional requirement; costs of suit; attorneys' fees; and such other and further relief as the Court may deem just and proper.
+
+### JURY DEMAND
+
+Plaintiff hereby demands a trial by jury on all causes of action asserted within this pleading.
+
+Dated September 21, 2015.
+
+/s/ David Boies
+
+David Boies Boies Schiller & Flexner LLP 333 Main Street Armonk, NY 10504
+
+/s/ Sigrid McCawley
+
+Sigrid McCawley (Pro Hac Vice Pending) Boies Schiller & Flexner LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011
+
+Is/ Ellen Brockman
+
+Ellen Brockman Boies Schiller & Flexner LLP 575 Lexington Ave New York, New York 10022 (212) 446-2300

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marker2/court-redacted-v-maxwell-07433/EFTA02801766/EFTA02801766.md

@@ -0,0 +1,394 @@
+# EXHIBIT 2
+
+IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA
+
+CASE NO.: CACE 15-000072
+
+J. and PAUL G. CASSELL,
+
+Plaintiffs,
+
+vs.
+
+ALAN M. DERSHOWITZ,
+
+Defendants.
+
+#### PLAINTIFF J. AND PAUL CASSELL'S MOTION FOR SUMMARY JUDGMENT ON LIABILITY
+
+Plaintiffs, J. Esq. and Paul G. Cassell, Esq., by and through their undersigned counsel and pursuant to Rule 1.510, Florida Rules of Civil Procedure, hereby move for (I) partial summary judgment on the issue of the false and defamatory nature of the statements at issue in this defamation case, as well to the presumed damages from those statements, with respect to both of claims against the Defendant, Alan Dershowitz, and (2) final summary judgment as to Dershowitz's First Amended Counterclaim against them, and in support thereof state as follows:
+
+## I. INTRODUCTION
+
+As the Court is well aware, this case involves a defamation action filed by two attorneys: and Cassell. They contend that the defendant, Alan Dershowitz, defamed them by repeatedly claiming in worldwide media broadcasts and other widely-disseminated statements that they had engaged in conspiring with their client to make up sexual abuse allegations against Dershowitz. The pleadings and discovery taken to date show that there is no genuine issue as to
+
+vs. Dershowitz Case No.: CACE 15-000072 MI and CasselIs Motion for Summary Judgment on Liability Page 2 of 20
+
+any material fact that these statements were false and defamatory. Moreover, and Cassell are entitled to litigation privilege for the statements they filed in court on behalf of their client. Accordingly, and Cassell are entitled to partial summary judgment on their complaint and final summary judgment on Dershowitz's First Amended Counterclaim.
+
+With regard to their complaint, MI and Cassell are entitled to partial summary judgment on the specific issue of the false and defamatory nature of the statements made against them. They have provided ample evidence that they had a powerful basis for believing their client's sexual abuse allegations — and were accordingly justified in filing a legal document on their client's behalf which contained those allegations. As a result, the undisputed record evidence establishes that Dershowitz waged a baseless international media assault on the honesty, integrity, and professionalism of and Cassell. In particular, Dershowitz went so far as to repeatedly accuse and Cassell of criminal misconduct in actively suborning perjury and fabricating the allegations of misconduct against him — acts that would warrant their disbarment from the legal profession. The undisputed record evidence supports the conclusion that and Cassell reasonably believed the sexual assault allegations against Dershowitz to be true, which is all that is required for the court to enter partial summary judgment here. Put simply, Dershowitz has made highly defamatory allegations that have no basis in fact. Indeed, his lawsuit was merely a desperate measure by a child abuser to avoid the stigma of the disclosure of his misconduct. Dershowitz's charges against and Cassell were and are nothing short of a far-fetched fictional fairy-tale — a preposterous claim lacking any factual
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 3 of 20
+
+support. And the statements that he made attack the chosen profession of and Cassell the practice of law — and therefore carry with them a presumption of damages suffered. Accordingly, the court should grant plaintiffs' motion for partial summary judgment on the issues of the false and defamatory nature of Dershowitz's statements, as well as the issue of the presumed damages that flowed from those statements.
+
+With regard to the First Amended Counterclaim, the undisputed material facts establish that Dershowitz's counterclaims against the Plaintiffs are barred by the absolute litigation privilege. The conduct of the attorneys and Cassell that forms the basis for Dershowitz's counterclaim for defamation is nothing more than filing a well-founded motion in pending federal court proceedings on behalf of pro bono clients. In his recent deposition, Dershowitz has conceded that the allegations were relevant to the federal court proceedings. As a result, that filing is indisputably protected by Florida's broad and absolute litigation privilege. Consequently, plaintiffs' motion for summary judgment as it relates to the pending counterclaim against them should also be granted.
+
+## ARGUMENT
+
+- II. AND CASSELL ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON THE PENDING PRIMARY CLAIM BECAUSE THERE ARE NO MATERIAL DISPUTED FACTS AND THE UNDISPUTED FACTS ESTABLISH THAT DERSHOWITZ REPEATEDLY BROADCAST FALSE AND DEFAMATORY STATEMENTS ABOUT THEM.
+
+## A. The Summary Judgment Standard.
+
+Rule 1.510(c), Florida Rules of Civil Procedure, provides that a court may enter summary
+
+vs. Dershowitz Case No.: CACE 15-000072 and CasselIs Motion for Summary Judgment on Liability Page 4 of 20
+
+judgment when the pleadings, depositions and factual showings reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See v. Cheezem Development Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979); Rule 1.510(c), Fla. R. Civ. P. Once the moving party conclusively establishes that the nonmoving party cannot prevail, it is incumbent on the nonmoving party to submit evidence to rebut the motion for summary judgment. See Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). It is not enough for the opposing party merely to assert that an issue of fact does exist. Fisel v. Wynns, 667 So.2d 761, 764 (F1a.1996); Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (same).
+
+Moreover, it is well-recognized that the non-moving party faced with a summary judgment motion supported by appropriate proof may not rely on bare, conclusory assertions found in the pleadings to create an issue and thus avoid summary judgment. Instead, the party must produce counter-evidence establishing a genuine issue of material fact. See v. Shands Teaching Hospital and Clinics, Inc., 479 So.2d 165, 168 (Fla. 1st Dist. Ct. App. 1985); see also Lanzner v. City of North Miami Beach, 141 So.2d 626 (Fla. 3d Dist Ct. App. 1962) (recognizing that mere contrary allegations of complaint were not sufficient to preclude summary judgment on basis of facts established without dispute). Where the nonmoving party fails to present evidence rebutting the motion for summary judgment and there is no genuine issue of material fact, then entry of judgment is proper as a matter of law. See v. Hathaway, 408 So. 2d 688, 689 (Fla. 2d Dist. Ct. App. 1982); see also Holl, 191 So. 2d at 43.
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassel Is Motion for Summary Judgment on Liability Page 5 of 20
+
+#### B. Dershowitz's Statements Concerning and Cassell Were False and Defamatory and Have Absolutely No Factual Basis.
+
+In support of this motion, and Cassell incorporate each of the attached Exhibits -- notably including attached Exhibit 1, which is a summary of some of the most important evidence; Exhibit 2, which is a sworn affidavit from their client, and Exhibit 3, which is deposition testimony from Cassell. These extensive materials establish the considerable support upon which and Cassell relied to file allegations on behalf of their client, Nevertheless, this is not a complicated case for granting partial summary judgment. To the contrary, this is a simple case for partial summary judgment because each and every one of Dershowitz's verbal attacks against and Cassell lacks any merit whatsoever and is defamatory per se.
+
+Of course, one element that a defamation plaintiff must establish under Florida law is an "unprivileged publication (to a third party) of a false and defamatory statement concerning another." Mile Marker, Inc. v. Petersen Publishing, L.L.C., 811 So.2d 841, 845 (Fla. Dist. Ct. App. 4th 2002). Another element that a defamation plaintiff must establish is damage to the person that ensued from the publication of the false or defamatory statement. Id.
+
+While and Cassell are entitled to summary judgment on other aspects of their claims, in this pleading it is only these two elements on which summary judgment. and Cassell are seeking
+
+As the undisputed facts establish, Cassell and received a well-founded allegation that Dershowitz had sexually abused IM=. They then filed those allegations —
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 6 of 20
+
+on her behalf — in a pending case where those allegations were pertinent. Dershowitz then went on a worldwide media rampage, claiming that the allegations were so unsupported that, by merely filing them in court for their client, and Cassell's demonstrated that they lacked fitness to engage in their chosen profession: the practice of law. Dershowitz's allegations are clearly and indisputably false, as established below.
+
+And it takes no real effort to understand that Dershowitz's statements (recounted in Exhibit #1 and elsewhere) are obviously and indisputably defamatory. Dershowitz had repeatedly said, for example, the and Cassell have conspired to create false charges against him and should be disbarred. Because these defamatory statements involve the conduct of two attorneys in their chosen profession, Dershowitz had committed defamation per se and damage is presumed. It is well settled in Florida that defamation "is actionable per se is, without a showing of special damage-if it imputes to another . . . conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession, or office . . . ."
+
+v. Jacksonville Kennel Club, 66 So. 2ed 495, 497 (Fla. 1953) (citing Restatement, Torts, Section 570).
+
+Because this case involves defamation per se, "liability itself creates a conclusive legal presumption of loss or damage. Therefore a finding of liability for [defamation] per se, coupled with an express finding that the [defamation] was intended to injure plaintiff and did in fact cause injury, authorizes the jury to consider and assess punitive damages without any finding of a specific amount of compensatory damages." Lawnwood Med. Cm, Inc. v. Sadow, 43 So. 3d
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 7 of 20
+
+710, 729 (Fla. 4th DCA 2010). Accordingly, for purposes of summary judgment, there need be no record evidence of any specific loss attributable to Dershowitz's tortious conduct. and Cassell are automatically entitled to summary judgment on that aspect of their claim.
+
+## THE RECORD EVIDENCE
+
+In light of the foregoing principles, three kinds of evidence are relevant to and Cassell's motion for partial summary judgment. First, and Cassell must establish the absence of any dispute that their profession is the legal profession. Second, and Cassell must establish the absence of any dispute that Dershowitz has imputed conduct inconsistent with the proper exercise of their legal duties. And third, and Cassell must establish the absence of any dispute that Dershowitz's statements were false and defamatory. Ample and unrebutted evidence supports each of these three points, which is summarized in the accompanying video presentation (Exhibit #1), the contents of which are incorporated herein by reference.
+
+## and Cassell's Chosen Profession is the Law
+
+and Cassell are both attorneys. In answering the complaint, Dershowitz appears to concede this fact. See Defendant Dershowitz's Answer to Complaint at ¶q 2-6 (conceding Cassell is counsel in a Florida victims' rights case and has held other legal positions); id at ¶¶ 6- 10 (conceding the same as to
+
+Mr. has established by affidavit (see Exhibit #14) that he is a named partner in the law firm of =, Jaffe, Weissing, Fistos & Lehrman and a Board Certified Civil
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 8 of 20
+
+Trial Attorney. He has tried more than 75 jury trials. He has been profiled in The Best Lawyers in America, recognized by the National Trial Lawyers Association's "Top 40 Under 40," and by the National Academy of Personal Injury Attorney's "Top 10 Under 40." In 2015 the National Association of Distinguished Counsel selected Mr. as one of the nation's "Top One Percent." Mr. is rated AV by his professional peers through the Martindale-Hubbell 0 Peer Review Rating system. Before entering private practice, Mr. was a trial attorney at the Broward County State Attorney's Office, prosecuting many violent criminals. In his private practice, he has handled numerous cases on behalf of victims of sexual abuse and other crimes, including a number of pro bono cases.
+
+Professor Paul G. Cassell has established by affidavit (see Exhibit #15) that he is the Ronald N. Boyce Presidential Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah. He graduated from Stanford Law School, where he served as President of the Stanford Law Review. He clerked for then-Judge Antonin Scalia when Scalia was on the U.S. Court of Appeals for the D.C. Circuit and then for the Chief Justice of the United States, Burger. Cassell then served as an Associate Deputy Attorney General with the U.S. Justice Department and as an Assistant U.S. Attorney for the Eastern District of Virginia. Cassell then joined the faculty at the College of Law, where he taught full time until he was sworn in as a U.S. District Court Judge for the District of Utah in 2002. In 2007, he resigned his judgeship to return full time to the College of Law, to teach, write, and litigate on issues relating to crime victims' rights. He is a co-author of the law school casebook, Victims in Criminal Procedure
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 9 of 20
+
+(Carolina Academic Press 3d ed. 2010). Cmell has handled pro bono numerous Crime Victims' Rights Act cases in district and appellate courts across the country, including a recent pro bono case he argued to the U.S. Supreme Court for a crime victim (Paroline v. U.S.). He is a member in good standing of the Utah bar and handles legal cases on a paid and pro bono basis in Utah and elsewhere.
+
+Dershowitz Has Made Defamatory Statements Alleging Conduct Incompatible with Proper Exercise oaand Cassell's Profession.
+
+As established beyond dispute from reviewing the first few video clips in the attached presentation, Dershowitz has defamed and Cassell by repeatedly alleging "conduct, characteristics, or a condition incompatible with the proper exercise of I and Cassell's] lawful business, trade, and profession." Among other things, Dershowitz alleged that and Cassell failed to minimally investigate the allegations they advanced on behalf of their client and even that they sat down with her to contrive the allegations. The attached video clips provide some illustrations of the assault on the Plaintiffs' professional fitness, but other statements Dershowitz has made in prominent national and international media including equally disparaging false statements:
+
+<sup>44</sup> and Cassell] are lying deliberately, and I will not stop until they're disbarred . . . .
+
+New York Times — January 3, 2015
+
+<1. and Cassell] manipulated a young, suggestible woman who was interested in money. This is a disbarable offense, and they will be disbarred. They will rue the day they ever made this false charge against me." Miami Herald — January 3, 2015
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 10 of 20
+
+> "They I and Cassell] are lying deliberately, and I will not stop until they're disbarred,"
+
+Boston Globe — January 4, 2015
+
+"If they [Cassell and I had just done an hours' worth of work, they would have seen she is lying through her teeth. . . . They're prepared to lie, cheat, and steal. These are unethical lawyers. This is Professor Cassell who shouldn't be allowed near a student. . . . He is essentially a crook. He is essentially somebody who's distorted the legal system. . . Why would he charge a person with a sterling reputation for 50 years on the basis of the word alone of a woman who is serial liar. . . If they just checked the records, they could have known from themselves that she was lying about me. . . . So we can prove it without any doubt. That's what's so absurd. That's what's so strange why two experienced lawyers would file this kind of statement knowing it was untrue. These [Cassell and I are virtually the equivalent of perjurers and they have to be taken out of the legal profession. They can't be allowed to have a bar card to victimize more innocent people."
+
+Halts Gorani — CNN Live (Jan. 5, 2015)
+
+"There was no contact, no contact whatsoever. And I will prove it conclusively, and then I will bring disciplinary charges and prove that these lawyers knew that this was false, could easily have checked, and didn't. And the end result will be that these lawyers will be disbarred."
+
+Vice News — January 5, 2015
+
+So they I and Cassell] and the woman got together and contrived and made this up. They have been talking to the woman for years. She never alleged me before. She never made any mention. Many of the others were mentioned
+
+before. First time my name was mentioned was a week ago. . . . I've never seen two lawyers like Paul Cassell and Brad engage in such unethical, disbarrable conduct. And I am accusing them on your show of unethical conduct."
+
+CNN Tonight — Jan. 5, 2015.
+
+"Dershowitz told Reuters Monday that he would file a defamation lawsuit based on the lawyers' public statements about the case. He also plans to file complaints with their respective states' disciplinary boards asking that they be disbarred."
+
+Reuters — January 7, 2015
+
+vs. Dershowitz Case No.: CACE 15-000072 and Owsells Motion for Summary Judgment on Liability Page 11 of 20
+
+> They will be proved — all of them [i.e., Cassell, M, and Jane Doe No. 3] to be categorically lying and making up this story. And it will be a terrible thing for rape victims. They have put rape victims in a terrible position. Because when I unequivocally that they sat down and made this all up, tragically it will hurt all rape victims. . . The lawyers are lying through their teeth when they say I've refused to be deposed. . . . We [Epstein and Dershowitz] had an academic relationship. I was never in the presence of a single, young, under-aged woman. When I was with him, it was with prominent scientists, prominent academics. And they're just — again — lying about this Today Show — Jan. 22, 2015.
+
+> "Now, your own rules of the profession, which I read coming in this morning, include as a professional I will always avoid personal criticism of another lawyer. And yet these two lawyers - Brad , from, whose partner Rothstein is now in jail for 50 years for a Ponzi scheme involving the same case, and a guy named Coe-sell — filed this . . . allegation again me in passing without doing even the most minimal of investigation, which would have proven conclusively that I not only didn't, but couldn't have, possibly done it." Speech to Dade County Bar Association, Feb. 20, 2015.
+
+Clearly Dershowitz has attacked and Cassell's conduct as attorneys and even their fitness to continue to be members of their respective bars.
+
+## Dershowitz's Statements Were False
+
+The record evidence eliminates all doubt that Dershowitz's statements were false. The sworn affidavit of (identified previously as Jane Doe #3), attached and incorporated herein as Exhibit #2, unequivocally contradicts Alan Dershowitz's protestations of innocence and his malicious statements made against and Cassell. However, Dershowitz has denied the accuracy of charges against him. While at trial, Dershowitz will be proven to be a liar, at this stage summary judgment could not be granted if the truthfulness of charges were a material element of the claims on which
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 12 of 20
+
+and Cassell are seeking summary judgment. But while and Cassell will establish the truthfulness of charges at trial, this is not an issue that the court need reach to before granting the summary judgments that and Cassell seek in this pleading.
+
+The central issue upon which and Cassell's complaint rests is not whether ■ claims were true, but instead whether Dershowitz lacked any basis whatsoever to support his claims that and Cassell not only knew that her statements were false but indeed actively participated in fabricating false statements. The record is completely devoid of evidence to support the existence of any such basis.
+
+As to the counterclaim the central issue upon which summary judgment turns is whether the Plaintiffs'/counter-defendants' filing of Giuffre's affidavit in the Crime Victim's Rights Act cases had any reasonable relationship to the issues in that federal proceeding. That issue has been expressly conceded by Dershowitz.
+
+# SWORN CLAIMS
+
+has submitted a sworn affidavit, not only attesting to the truthfulness of her allegations against Dershowitz but also about the fact that she told her lawyers about these claims. With regard to her allegations, explains that:
+
+Harvard law professor Alan Dershowitz was around Epstein frequently. Dershowitz was so comfortable with the sex that was going on and that he observed me in sexual activity with Epstein. I had sexual intercourse with Dershowitz at least six times. The first time was when I was about 16, early on in my servitude to Epstein, and it continued until I was 19.
+
+The first time we had sex took place in New York in Epstein's home. It was in Epstein's room (not the massage room). I was approximately 16 years old
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 13 of 20
+
+> at the time. I called Dershowitz "Alan." I knew he was a famous professor. The second time that I had sex with Dershowitz was at Epstein's house in Palm Beach.
+
+> I also had sex with Dershowitz at Epstein's Zorro Ranch in New Mexico in the massage room off of the indoor pool area, which was still being painted.
+
+We also had sex at Little Saint James Island in the U.S. Virgin Islands.
+
+Another sexual encounter between me and Dershowitz happened on Epstein's airplane. Mother girl was present on the plane with us.
+
+I have recently seen a former Harvard law professor identified as Alan Dershowitz on television calling me a "liar." He is lying by denying that he had sex with me. That man is the same man that I had sex with at least six times.
+
+Since I filed my motion in the Jane Doe 1 and Jane 2 case, my credibility has been attacked, including attacks from Alan Dershowitz on me and on my attorneys who believed in me. I am telling the truth and will not let these attacks prevent me from exposing the truth of how I was trafficked for sex to many powerful people. These powerful people seem to think that they don't have to follow the same rules as everyone else. That is wrong.
+
+Sworn affidavit of (Exhibit #2), at 94 24-31, ¶ 71.
+
+The assertions of sexual abuse are more than adequately corroborated by compelling circumstantial evidence which is detailed at length by Cassell in his deposition. However, the Court (like the jury who will ultimately hear this case) need not ever decide whether Dershowitz sexually abused to rule in and Cassell's favor in this motion. Regardless of whether Dershowitz sexually abused and Cassell clearly had a good faith basis for relying on the sworn representations of their client — and Dershowitz had absolutely no basis for repeatedly asserting on numerous worldwide media platforms that got together with their client "and contrived and made this up." In addition, had clearly conducted extensive investigation into the basis for and Cassell and Cassell allegations — and Dershowitz absolutely had no basis for repeatedly asserting that if they "had just done an hours'
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 14 of 20
+
+worth of work, they would have seen she is lying through her teeth." Accordingly, regardless of what happened between Dershowitz and inside of Jeffrey Epstein's mansions, on his jets, and on Epstein's exclusive private island, the undisputed record evidence establishes that and Cassell had every right following their detailed investigation to rely on credibility. Even more significantly, there is no record evidence contradicting the Plaintiffs' assertions that they did not fabricate with the defendant Dershowitz. sworn account of her interactions
+
+The good faith basis for and Cassell's reliance on allegations is laid out in detail by Professor Cassell in more than 50 pages of sworn testimony during his deposition. See Depo. of Paul Cassell (Oct. 16 & 17, 2015), at 61-117 (Exhibit #3). Some of Professor Cassell's significant testimony is included in the PowerPoint presentation included as part of the record in support of this Motion. Cassell's testimony includes the following information that he and relied upon in believing the truth of allegations:
+
+- The Palm Beach Police Department put together an 87-page report based on witness interviews and other evidence documenting sexual abuse of dozens of minor girls occurring in Epstein's Florida mansion — a location where said Dershowitz had abused her (see Exhibit #4);
+- The Palm Beach police report showed the sexual abuse was occurring on a daily basis and, indeed, in some cases as much as two or three times in one day in circumstances that would have made it obvious to a visiting guest that young girls were coming to the home for sexual purposes;
+- Flight logs for E stein' rivate jet showed that Epstein (accompanied by Ms. Maxwell) flew to the New York City area, a location where said Dershowitz had abused her (see Exhibit #5);
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 15 of 20
+
+- Epstein's flight logs appeared to be disguising the identity of all of the passengers on Epstein's plane by using such notations as "one female."
+- A very well-regarded Florida lawyer (Bob Josefsberg), who was selected by the U.S. Government to represent the victims of Epstein's sexual abuse, had found to be credible and in 2009 filed a civil complaint for her alleging not only sex abuse by Epstein but also by "academicians" (see Exhibit #6) -- a group into which Dershowitz fell;
+- Shortly after Josefsberg filed the complaint for alleging "academicians" had abuse her, one of Josefsberg's partners, Ms. Ezell, began conducting depositions in Epstein-related cases asking about Dershowitz's awareness of sexual abuse;
+- Dershowitz showed up on flight logs for Epstein's private jet, including a flight with an (apparently young) woman named "Tatiana" who did not appear to serve any business purpose for Epstein;
+- When asked about Dershowitz, Epstein took the Fifth rather than indicate that Dershowitz was not involved in any criminal activities (see Exhibit #7) — a fact from which an obvious adverse inference could be drawn that Dershowitz was, indeed, involved in Epstein's crimes;
+- In moving down from the to of E stein's criminal cons irac to the next echelon three women — , Adrianna and
+  - all took the Fifth when asked about Dershowitz's awareness of Epstein's sexual abuse of underage girls or whether Dershowitz was involved in massages with young girls (see Exhibit #16);
+- and were all covered by a highly unusual nonprosecution agreement (negotiated by, among others, Epstein defense attorney Alan Derhsowitz) that provided immunity from prosecution for sex trafficking not only to Epstein but also to his "potential co-conspirators";
+- One of Epstein's household employees, Juan Alessi, said that Dershowitz visited Epstein's Palm Beach mansion four or five times a year, staying two or three da s when he went there — and Alessi was able to identify a photograph of as someone who was at the mansion as the same time as Dershowitz (see Exhibit #8);
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 16 of 20
+
+- Another Epstein household employee, Alfredo Rodriguez, said that during the time of his employment (2005), Dershowitz visited Epstein's mansion at the same time as "massages" by underage girls were occurring in the mansion (see Exhibit #9);
+- When Rodriguez was arrested by the FBI trying to sell Epstein's "little black book" of contacts and phone numbers, he appeared to have circled the name of Alan Dershowitz as someone who had information about Epstein criminal activities (see Exhibit #17);
+- Dershowitz had indicated in 2003 that he was an extremely close friend of Epstein
+  - indeed, that the only person outside his immediately family with whom he shared drafts of his books was Epstein;
+- Attempts had been made to depose Dershowitz or otherwise obtain information from him about his knowledge of Epstein's sexual abuse in 2009, 2011, 2013, and January 2015, and he had avoided all those efforts (see Exhibit #10);
+- Dershowitz had told the Palm Beach Police Department that he was going to make Epstein available to answer questions about sex abuse of underage girls, but then repeatedly rescheduled those meetings, ultimately never producing Epstein a pattern of deception that appeared to be designed to deliberately delay the investigation;
+- Dershowitz's pattern of avoiding depositions (and helping Epstein avoid questioning) was consistent with a pattern of other persons who were involved in Epstein's international sex trafficking organization evading efforts to obtain information from them;
+- had alleged abuse by other powerful friends of Epstein, including Prince Andrew, and there was a photograph showing Prince Andrew with his arm around Ms. Giuffre apparently taken in London (where she said the sex abuse had taken place) (see Exhibit #11).
+
+Depo. of Paul Cassell (Oct. 16 & 17, 2015), at 61-117 (Exhibit #3).
+
+and Cassell clearly had a powerful basis for believing their client's allegation that she had been sexually abused by Dershowitz, particularly where she had made this
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 17 of 20
+
+allegation to them as far back as 2011 before they were representing her. But equally clear is the fact that Dershowitz engaged in intentional misconduct, because of his lack of any basis for attacking their professionalism. Dershowitz served as Epstein's defense counsel during the negotiations that lead to his guilty plea and associated non-prosecution agreement. Dershowitz uniquely would have been aware of the compelling evidence against Epstein — and no doubt would have taken a keen interest in the evidence that would have connected him with Epstein's crimes. Most notably, since then, Dershowitz has yet to provide any evidence that he relied upon in January 2015 for his claims that and Cascell had conspired with their client to make up allegations against him. And the idea that if and Cassell "had just done an hours' worth of work, they would have seen she is lying through her teeth" is laughable in light of the mountain of evidence supporting her allegations — as well as Dershowitz's refusal to be deposed regarding his knowledge of the sexual abuse of Epstein's victims and his personal inability to obtain exonerating evidence.
+
+And what does Dershowitz now claim was the support for his media tirade against these two capable lawyers? As the Court can readily confirm by reading even a small snippet of Dershowitz's deposition, it was very difficult to get him to answer questions directly and specifically. (As a result, Dershowitz's deposition will continue on December 9 and 10.) However, Dershowitz never provided any basis for his attacks on and Cassell. See generally Depo. of Alan Dershowitz (Oct. 15, 2015) (Exhibit #12); Depo. of Alan Dershowitz (Oct 16, 2015) (Exhibit #13).
+
+vs. Dershowitz Case No.: CACE 15.000072 and Cassells Motion for Summary Judgment on Liability Page 18 of 20
+
+Moreover, some answers were successfully extracted which leaves no doubt that Dershowitz's defamatory statements about and Cassell were made without any basis. Some of these have been collected in the attached PowerPoint presentation, which shows intentional misconduct — specifically, a series of deliberate lies -- by Dershowitz, apparently designed to conceal his culpability. For example, Dershowitz claimed that the flight logs would "exonerate" him. But he had never even looked at them before attacking and Cassell. See Depo. of Alan Dershowitz at 239-42 (Oct. 16, 2015) (Exhibit #13). Dershowitz also stated in his media appearances that "[a]s far as the planes are concerned, there are flight manifests. They will prove I was never on any private airplane with any young women." Hana Gorani - CNN Live (Jan. 5, 2015). And yet a flight log shows Dershowitz on a flight with a young woman named "Tatianna." Dershowitz also was forced to admit in his deposition that whenever he met with Epstein, part of the Epstein "entourage" were woman whom he described as being between the age of 25 and 30.
+
+Dershowitz also stated: "I've been married to the same woman for 28 years. She goes with me everywhere. People know that I won't argue a case or give a speech unless my wife travels with me." American Lawyer, Jan. 15, 2015. And yet the available flight logs for Epstein's planes do not show Dershowitz's wife on a single flight while showing Dershowitz traveling without his wife on numerous flights — including a flight with "Tatianna" on it.
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 19 of 20
+
+Dershowitz also stated "I have never been alone . . . with Jeffrey Epstein." UMAR News, Jan. 5, 2015. And yet (among other occasions), a flight log shows Epstein and Dershowitz traveling together — alone.
+
+Dershowitz said "I never got a massage from anybody. It's made up out of whole cloth." But on Local 10 News (Jan. 22, 2015), Dershowitz said he got a massage but "kept my underwear on."
+
+Based on evidence such at this, there is no doubt as the false defamatory nature of Dershowitz's statements against and Cassell.
+
+## CONCLUSION AS TO PLAINTIFFS' CLAIMS
+
+Partial summary judgment is appropriate in this case, particularly because Florida law provides strong protection for a person's reputation. As the Fourth DCA has explained in upholding a punitive damages award in a defamation case:
+
+Florida's unusually high protection of personal reputation derives from the common consent of humankind and has ancient roots. It is highly valued by civilized people. Our state constitution and common law powerfully support it. This is a value as old as the Pentateuch and the Book of Exodus, and its command as clear as the Decalogue: "Thou shall not bear false witness against thy neighbor." The personal interest in one's own good name and reputation surpasses economics, business practices or money. It is a fundamental part of personhood, of individual standing and one's sense of worth. In short, the wrongdoing underlying the punitive damages in this case has Florida law's most severe condemnation, its highest blameworthiness, its most deserving culpability. For [defamation] per se, reprehensibility is at its highest.
+
+Lawnwood Medical Center, Inc. v. Sadow, 43 SO.3d 710, 729 (Ma. App. 4th DCA 2010).
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassclls Motion for Summary Judgment on Liability Page 20 of 20
+
+The record evidence and law described here provide clear support for the conclusion not only that Dershowitz sexually abused IM=, but also indisputably that Dershowitz made false and defamatory statements by alleging that two experienced and capable attorneys who thoroughly investigated and believed allegations in good faith should be disbarred. Equally obvious from the surrounding circumstances is the improper motive behind Alan Dershowitz's high profile media assault. In his own words:
+
+"There's an old saying:
+
+`If you have the law on your side, bang on the law.
+
+If you have the facts on your side, bang on the facts.
+
+If you have neither, bang on the table.'
+
+I have never believed that, but I do believe in a variation on that theme:
+
+If you don't have the law or legal facts on your side, argue your case in the court of public opinion."
+
+Alan M. Dershowitz, Taking the Stand My Life in the Law
+
+With neither law nor facts available to defend himself against charges of gross wrongdoing, Dershowitz followed his own prescription and took his defense to the court of public opinion where he had an audience willing to ignore both law and facts. The lawyer victims of Dershowitz's attacks remained temporarily silenced by their personal unwillingness to abandon their faith in the legal system or the interests of their pro bono client. They filed this action to protect their interests, and the record evidence now supports their entitlement to partial summary judgment on the issues that Dershowitz made false and defamatory statements about them and, in addition, that the and Cassell suffered presumed damage because these statements are defamatory per se.
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability age 21 of 20
+
+#### AND CASSELL ARE ENTITLED TO SUMMARY JUDGMENT ON THE COUNTERCLAIM ON THE BASIS OF THEIR AFFIRMATIVE DEFENSE OF LITIGATION PRIVILEGE.
+
+As the Court is aware, and Cassell have pending a motion to dismiss both counts of the First Amended Counterclaim on the basis of litigation privilege and other arguments. In this motion for summary, and Cassell specifically incorporated herein by reference the arguments advanced there. If for any reason the Court were to find that the motion to dismiss could not be granted based on the litigation privilege, and Cassell are clearly entitled to summary judgment on both counts of the First Amended Counterclaim for many of the same reasons articulated there — as well as based on new evidence outside the pleadings, such as the fact that Dershowitz has admitted that the allegations and Cassell filed were relevant to the federal case
+
+Under Florida's litigation privilege, "absolute immunity," a party and her attorneys are "exempted from liability to an action for defamatory words published in the course of judicial proceedings, regardless of how false or malicious the statements may be, as long as the statements bear some relation to or connection with the subject of inquiry." Zuccarelli v. Barfield, 165 So. 3d 830, 831 (4th DCA 2015); see also Levi,,, Middlebrooks, Mabie, Mayes & Mitchell, P.A. v. U.S Fire Ins. Co., 639 So. 2d 606 (Fla. 1994). The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but to judges, witnesses, and counsel as well. Id. The litigation privilege applies in all causes of action, whether for common-law torts or statutory violations. See
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 22 of 20
+
+Echevarria, McCalla, Raymer, & Frappier v. M, 950 So. 2d 380 (Fla. 2007). Defamatory statements made by lawyer while interviewing a witness in preparation for and connected to pending litigation are covered by the absolute immunity conferred by the litigation privilege. See DelMonico v. Traynor, 50 So. 3d 4 (Fla. Dist. Ct. App. 4th Dist. 2010), review granted, 47 So. 3d 1287 (Fla. 2010). And because it appears to be undisputed that Dershowitz is a "public figure," he must carry the extra burden of proving his defamation counterclaim by "clear and convincing evidence." Zorc v. Jordan, 765 So. 2d 768, 771 (Fla. 4th DCA 2000).
+
+These authorities effectively narrow the issue on the pending counterclaim to the resolution of a single question: did the filing of affidavit in the Crime Victim's Rights Act cases currently pending the Federal District Court for the Southern District of Florida have "some relationship" to that proceeding. Dershowitz has himself answered that question in the affirmative on multiple occasions during his recent deposition:
+
+Q: You were asked on the occasion of that same Don Lemon CNN interview what possible motive the attorneys, Brad and Paul Cassell, could have had to have identified you in the pleading that was filed in the Crime Victim's Rights Act Case. Do you remember that?
+
+A: That's right, yes.
+
+Q: And your response was quote — "They want to be able to challenge the plea agreement. I got the very good deal for Jeffrey Epstein."
+
+Did you make a response?
+
+A: Yes.
+
+Q: So, you recognized as of January 5, 2015, that the reason why the statements were filed in the Crime Victim's Rights Act case was because
+
+vs. Dershowitz CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 23 of 20
+
+> the Crime Victim's Act case had, as an objective, setting aside the plea agreement that you had negotiated for Jeffrey Epstein, correct?
+
+- A. There were multiple motives. One of the motives was crassly financial. They were trying to line their pockets with money. But as I also said, and I said this over and over again, they profiled me. They sat down with their client, knowing that she has a history of lying, knowing that she is easily suggestible, and they basically pressured her, according to my sources, into including me when she didn't want to include me, because by including me, they could make a claim, false as it was, could make a false claim that a person who negotiated the NPA was also criminally involved with her.
+
+\* \* \*
+
+- Q. You stated, quote: "If they," referring to and Paul Cassell, "could find a lawyer who helped draft the agreement" —
+
+- A. Right.
+
+- Q. -- "who also was a criminal having sex, wow, that could help them blow up the agreement."
+
+Did you make that statement on —
+
+- A. Yes. I just repeated it now, yes, under oath, yes.
+
+Depo. of Alan M. Dershowitz (Oct. 16, 2015), at 217-220 (Exhibit #13).
+
+For all the reasons previously advanced, and Cassell are entitled to have both counts of the First Amended Counterclaim against them dismissed — as they argue in their pending motion to dismiss. But in addition, a motion for summary judgment is the proper way to introduce Dershowitz's concession and other evidence to the Court. And given the obviously undisputed concession that Dershowitz made in his deposition, summary judgment is also appropriate on Count I of the counterclaim because of litigation privilege.
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 24 of 20
+
+And then, with summary judgment appropriate on Count I of the pending counterclaim, it also follows that summary judgment is also appropriate as to Count II as well. As explained at greater length in the motion to dismiss, nothing in the record established any disputed fact showing anything other than that and Cassell did not make out-of-court statements containing actionable defamatory allegations against Dershowitz. Moreover, in ruling on this summary judgment motion, the "allegedly defamatory words must be read in the context of the entire publication, and if the documents could not possibly have a defamatory effect, the complaint may be dismissed . . . ." Zorc v. Jordan, 765 So. 2d 768, 771 (Fla.4th DCA 2000). Dershowitz has simply collected snippets of emails to try and cobble together a viable defamation claim. But when these snippets are each read in context — as this Court must do in ruling on this summary judgment motion — it is clear that and Cassell were not engaging in a media dialog with Dershowitz, but instead simply representing their client and trying to avoid an out-of-court statements about Dershowitz. For example, Dershowitz remarkably tries to allege that and Cassell defamed with the statement that "out of respect for the court's desire to keep this case from being litigated in the press, we are not going to respond at this time to specific claims of indignation by anyone." First Amended Counterclaim at ¶ 32. Moreover, Dershowitz tries to claim a defamation occurred when Cassell sent an email to a journalist stating "I represent . . . the young woman who was sexually abused by" Prince Andrew and Dershowitz. This statement, read in context, was nothing more than an identification of Cassell's client in a way that permits a media representation to understand who
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 25 of 20
+
+is being discussed. See Cassell Depo. at 310-12 (Oct. 17, 2015) (Exhibit #3). And in addition, and Cassell were simply making a "fair report" about properly-filed legal pleadings that, as Dershowitz's concession in his deposition demonstrates, were relevant to the case at hand. For all these reasons, summary judgment in favor of and Cassell is appropriate on the First Amended Counterclaim.
+
+## CONCLUSION
+
+For the foregoing reasons, defendant, the Court should grant defendant J. Esq., and Paul Cassell, Esq. partial summary judgment in their favor on the issues of the false and defamatory nature of the statements alleged in their complaint, as well as the presumed damages that flow from them. The Court should also grant summary judgment in their favor on the First Amended Counterclaim filed against them by Dershowitz.
+
+[REDACTED] vs. Dershowitz  
+Case No.: CACE 15-000072  
+[REDACTED] and Cassells Motion for Summary Judgment on Liability  
+Page 26 of 20
+
+*& Fed Ex*
+
+I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list, this 25th day of November, 2015.
+
+![]()Jack Scarola  
+Florida Bar No.: 169440  
+Attorney E-Mail(s): jsx@searcylaw.com and mep@searcylaw.com  
+Primary E-Mail: scarolateam@searcylaw.com  
+Searcy Denney Scarola Barnhart & Shipley, P.A.  
+2139 Palm Beach Lakes Boulevard  
+West Palm Beach, Florida 33409  
+Phone:(561) 686-6300/Fax:(561) 383-9451
+
+SEAN D. [REDACTED]  
+Utah Attorney General
+
+By: [REDACTED]  
+JOEL A. FERRE  
+Assistant Utah Attorneys General
+
+[REDACTED] J. [REDACTED]  
+[REDACTED] JAFFE, WEISSING,  
+[REDACTED], FISTOS & LEHRMAN, P.L.  
+425 North Andrews Avenue, Suite 2  
+Fort Lauderdale, Florida 33301  
+Telephone (954) 524-2820/Facsimile (954) 524-2822  
+E-mail: brad@pathtojustice.com
+
+*And*
+
+Paul G. Cassell  
+*Pro Hac Vice Motion Pending*  
+S.J. Quinney College of Law at the  
+University of Utah  
+383 S. University St.  
+Salt Lake City, UT 84112  
+Telephone:801-585-5202/Facsimile:801-585-6833  
+E-Mail:cassellp@law.utah.edu
+
+Attorneys for Plaintiffs [REDACTED] J. [REDACTED] and Paul G. Cassell
+
+vs. Dershowitz Case No.: CACE 15-000072 and Cassells Motion for Summary Judgment on Liability Page 27 of 20
+
+#### COUNSEL LIST
+
+Emerson Scott. Jr. Esquire tev Scott & Kissane P.A. 9150 S Dadeland Boulevard, Suite 1400 Miami, FL 33156 Phone: (305)-350-5329 Fax: (305)-373-2294 Attorneys for Defendant
+
+Richard A. Simpson (pro hac vice) rsimpson@wilevrein.com Mary E. Borja (pro hac vice) mborja@wilevrein.com Ashley E. Eiler (pro hac vice) aeiler@wilevrein.com WILEY REIN LLP 1776 K St. NW Washington, DC 20006 Phone: (202) 719-7000 Fax: (202) 719-7049
+
+#### EVIDENTIARY SUPPORT FOR PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
+
+- 1. Video Presentation.
+- 2. Affidavit of
+- 3. Deposition of Paul Cassell (Oct. 16 & 17, 2015).
+- 4. Palm Beach Police Department 87-page report.
+- 5. Flight logs for Epstein's private jet.
+- 6. Jane Doe 102 Complaint.
+- 7. Excerpt of Jeffrey Epstein Taking The Fifth when asked about Dershowitz.
+- 8. Deposition Excerpts of Juan Alessi.
+- 9. Deposition Excerpts of Alfredo Rodriguez.
+- 10. Documents reflecting efforts to depose Dershowitz regarding his knowledge of Epstein's sexual abuse in 2009, 2011, 2013, and January 2015.
+- 11. Photograph showing Prince Andrew with his arm around a.
+- 12. Deposition of Alan Dershowitz (Oct. 15, 2015).
+- 13. Deposition of Alan Dershowitz (Oct. 16, 2015).
+- 14. Affidavit of J.
+- 15. Affidavit of Paul G. Cassell.
+- 16. De osition excerpts of
+- 17. Alfredo Rodriguez Copy of Jeffrey Epstein Telephone Directory.

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