Giuffre v. Maxwell, No. 115-cv-07433 (S.D.N.Y. 2015)/1090-18.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------X VIRGINIA L. GIUFFRE, Plaintiff, v. GHISLAINE MAXWELL, Defendant. 15-cv-07433-RWS --------------------------------------------------X DEFENDANT’S RESPONSE IN OPPOSITION TO MOTION TO EXCEED PRESUMPTIVE TEN DEPOSITION LIMIT ......................................... Laura A. Menninger Jeffrey S. Pagliuca HADDON, MORGAN, AND FOREMAN, P.C. East 10 th Avenue Denver, CO 80203 303.831.7364 Case 1:15-cv-07433-LAP Document 1090-18 Filed 07/30/20 Page 1 of 11 1 Defendant Ghislaine Maxwell (“Ms. Maxwell” ) files this Response in Opposition to Plaintiff’s Motion to Exceed Presumptive Ten Deposition Limit, and states as follows: INTRODUCTION Despite having taken only three depositions to date, Plaintiff prematurely requests permission to exceed the presumptive ten deposition limit imposed by Fed. R. Civ. P. 30(a)(2)(A)(i) and to conduct 17 separate depositions, almost twice the limit. Without legal support, Plaintiff attempts to conflate the presumptive time limitation for each deposition of seven hours with a right to take a total of 70 hours of depositions. This is an absurd reading of the Federal Rules. The presumptive ten deposition limitation is an independent limitation, and speaks to the number of separate deponents, not deposition time. Indeed, the two independent limitations do not even appear in the same section of the rules. The heart of Plaintiff’s argument is that Ms. Maxwell inconveniently testified and denied Plaintiff’s claims, rather than invoking the Fifth Amendment. This dashed Plaintiff’s apparent hope to obtain an adverse inference, rather than actually having to prove her case against Ms. Maxwell. Instead, Ms. Maxwell fully testified for the entire 7 hours, responded to all questions posed to her, 1 and testified based on her actual knowledge. Ms. Maxwell’s testimony simply bears no relevance to Plaintiff’s request to take more than 10 depositions of non-party witnesses. Conspicuously absent from Plaintiff’s motion are (a) any actual information she believes these witnesses may provide which is neither cumulative nor duplicative of other information already disclosed in this case, (b) the fact the information can be obtained from other sources, 1 Plaintiff flatly mis-represents to the Court that Ms. Maxwell “refused” to answer the questions posed to her, as the actual transcript amply demonstrates. Ms. Maxwell did not avoid any questions and answered all questions to the best of her recollection relating to alleged events 15 years ago. The majority of the bullet point “summary” of the matters about which Ms. Maxwell could not testify were based either on a lack of any personal knowledge or the fact that the events claimed by Plaintiff did not actually happen. Case 1:15-cv-07433-LAP Document 1090-18 Filed 07/30/20 Page 2 of 11 2 and (c) facts demonstrating that the burden and expense of the discovery is justified by the needs of this case. Indeed, she has not established that the testimony is even relevant to the actual issues in this matter. Plaintiff’s inability to establish these factors requires denial of the motion. I.PLAINTIFF’S REQUEST IS PREMATURE First, the request to exceed the presumptive ten-deposition limit is premature. “[C]ourts generally will not grant leave to expand the number of depositions until the moving party has exhausted the ten depositions permitted as of right under Rule 30(a)(2)(A) or the number stipulated to by the opposing party.”Gen. Elec. Co. v. Indem. Ins. Co. of N. Am., No. 3:06-CV- 232 (CFD), 2006 WL 1525970, at *2 (D. Conn. May 25, 2006). This guideline makes sense because a “moving party must not only justify those depositions it wishes to take, but also the depositions it has already taken.”Id. (citing Barrow v. Greenville Indep. Sch. Dist.,202 F.R.D. 480, 482 (N.D.Tex. 2001)). This rule is in place because “a party could indirectly circumvent the cap on depositions by exhausting the maximum allotted number to those that she could not justify under the Rule 26(b)(2) standards, and then seek[ ] leave to exceed the limit in order to take depositions that she could substantiate.”Id.at 483. Here, Plaintiff seeks a pre-emptive determination that she should be permitted 17 depositions, almost twice the presumptive limit, yet her proposed depositions are not calculated to lead to admissible evidence in this case. By way of example, Plaintiff identifies Nadia Marcinkova, Sarah Kellen (a/k/a Sarah Kensignton or Sarah Vickers), and Jeffrey Epstein as alleged “co-conspirators” with each other. She requests the depositions of each. Plaintiff anticipates each will invoke the Fifth Amendment –in other words, she will not obtain any discoverable information from them. Case 1:15-cv-07433-LAP Document 1090-18 Filed 07/30/20 Page 3 of 11 3 Plaintiff makes a bizarre argument that somehow this testimony can be used to create an adverse inference against Ms. Maxwell, 2 despite the fact that Ms. Maxwell did not invoke the Fifth Amendment and she testified fully and answered every question posed to her with the only exception the irrelevant and harassing questions Plaintiff posed to her concerning her adult, consensual sexual activities. In other words, depositions of Marcincova, Kellen and Epstein would serve Plaintiff’s goal to make a convoluted legal argument, not to actually seek discoverable information. In light of this, the “burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”Atkinson v. Goord, No. 01 CIV. 0761 LAKHBP, 2009 WL 890682, at *1 (S.D.N.Y. Apr. 2, 2009); Fed. R. Civ. P. 26(b)(1). If Plaintiff chooses to use her depositions in this manner, she risks utilizing three of her available 10 depositions for an illegitimate purpose. She should not be rewarded with a pre-emptive carte blanche in advance to take additional depositions. II.THE PROPOSED DEPOSITIONS ARE CUMULATIVE, DUPLICATIVE, AND NOT RELEVANT TO THE CENTRAL ISSUES OF THE DISPUTE Plaintiff has not met the requisite showing to permit in excess of 10 depositions. In Sigala v. Spikouris, 00 CV 0983(ILG), 2002 WL 721078 at *3 (E.D.N.Y. Mar. 7, 2002), the Court set forth the general principles relevant to a party's application to conduct more than ten depositions: 2 Invocation of the Fifth Amendment by a third party witness cannot be used to create an adverse inference against a party in a civil action.See United States v. Dist. Council of New York City & Vicinity of United Bhd. of Carpenters & Joiners of Am., No. 90 CIV. 5722 (CSH), 1993 WL 159959, at *5 (S.D.N.Y. May 12, 1993) (“the general rule [is] that an individual's claim of Fifth Amendment protection is personal, and does not give rise to adverse inferences against others.” );Brenner v. World Boxing Council,675 F.2d 445, 454 n. 7 (2d Cir.),cert denied,459 U.S. 835 (1982) (“Furthermore, since King was a non-party witness, no adverse inference against appellees could have been drawn from his refusal to testify.” ). Case 1:15-cv-07433-LAP Document 1090-18 Filed 07/30/20 Page 4 of 11 4 The Federal Rules presumptively limit the number of depositions that each side may conduct to ten.SeeFed.R.Civ.P. 30(a)(2) (A) (“A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if ... a proposed deposition would result in more than ten depositions being taken ....” );accord Universal City Studios v. Reimerdes,104 F.Supp.2d 334, 342 (S.D.N.Y.2000);Landry v. St. James Parish Sch. Bd.,No. Civ. A 99-1438, 2000 WL 1741886, at *2 (E.D.La. Nov. 22, 2000). The purpose of Rule 30(a)(2)(A) is to “enable courts to maintain a ‘tighter rein’on the extent of discovery and to minimize th