EFTA00102404.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re: Docket #1:19-cv-08673- DOE, JANE, KPF-DCF Plaintiff, - against - INDYKE, et al., : New York, New York June 24, 2020 Defendants. TELEPHONE CONFERENCE PROCEEDINGS BEFORE THE HONORABLE JUDGE DEBRA C. FREEMAN, UNITED STATES DISTRICT COURT MAGISTRATE JUDGE APPEARANCES: For Plaintiff: KAPLAN HECKER & FINK LLP BY: ROBERTA A. KAPLAN, ESQ. KATE L. DONIGER, ESQ. 350 Fifth Avenue, Suite 7110 New York, New York 10118 212-763-0883 For the Defendants: TROUTMAN SANDERS LLP BY: BENNET J. MOSKOWITZ, ESQ. 875 Third Avenue New York, New York 10022 212-704-6087 TROUTMAN SANDERS BY: MOLLY S. DIRAGO, ESQ. 227 W. Monroe Street, Suite 3900 Chicago, Illinois 60606 312-759-1926 Transcription Service: Carole Ludwig, Transcription Services 155 East Fourth Street #3C New York, New York 10009 Phone: (212) 420-0771 Email: Transcription420@aol.com Proceedings conducted telephonically and recorded by electronic sound recording; Transcript produced by transcription service EFTA00102404  INDEX EXAMINATIONS Re- Re- Witness Direct Cross Direct Cross None EXHIBITS Exhibit Voir Number Description ID In Dire None EFTA00102405  1 PROCEEDINGS 3 2 HONORABLE DEBRA C. FREEMAN (THE COURT): So this 3 is Judge Freeman. This is Doe v. Indyke, and it is 19-cv- 4 8673. The case is before Judge Failla. 5 Can I have counsels' appearances, please, for this 6 record, starting on plaintiffs' side? 7 MS. ROBERTA KAPLAN: Yes, your Honor. For 8 plaintiffs you have Roberta Kaplan. And I'm here with my 9 colleague -- or I shouldn't say "I'm here" -- I'm on the 10 phone with my colleague, Kate Doniger. 11 THE COURT: Okay. And on defendants' side? 12 MR. BENNET MOSKOWITZ: Hi, your Honor, Bennet 13 Moskowitz. 14 THE COURT: Hold on a second. If others could 15 please mute their lines if they're not speaking? It sounds 16 like someone is maybe monitoring another call at the same 17 time. So I'd appreciate it if you could just mute. 18 Thank you. On defendant's side? 19 MR. MOSKOWITZ: Yes, thank you, your Honor. I was 20 waiting for that to play out; I heard the same thing. 21 Bennet Moskowitz, Troutman Sanders, for the co-executors. 22 And my colleague, Molly DiRago, is also on the line. 23 THE COURT: Okay. Is there anyone else on the 24 line who is a participant in this call, an attorney for one 25 of the parties in this case? EFTA00102406  1 PROCEEDINGS 4 2 THE COURT: All right, we have a number of people 3 on the line apparently. I probably have some people from 4 my chambers who are listening in, including student 5 interns. And there may be press on the call and others. 6 I'm just going to ask anyone who's listening, again please 7 keep your lines on mute so that it doesn't interfere with 8 the conference with the participants. 9 So the reason I wanted to have a conference in 10 this case -- well, there are a few reasons. There are 11 discovery disputes on the docket that need attention, 12 there's a scheduling matter that needs attention. There's 13 a bigger issue that I wanted to raise about what's going on 14 with this case and the potential settlement of claims 15 through the program that's been set up. 16 So let me start there because of all of the many 17 cases that have been filed in the court, most of which have 18 been referred to me to supervise, far and away most of 19 those are now temporarily stayed because the plaintiffs are 20 planning to pursue remedies in the claims program, now that 21 it's gotten off the ground, and have voluntarily consented 22 to stays. Obviously, there's no obligation that a 23 plaintiff voluntarily consent to a stay, but I did want to 24 understand why this case pretty much stands alone as being 25 aggressively litigated at this time and understand if EFTA00102407  1 PROCEEDINGS 5 2 plaintiff has decided not to participate in the program or 3 is considering and hasn't decided yet whether to 4 participate or wants to do both things simultaneously or 5 what the story is with this particular plaintiff. So can I 6 have that addressed first? 7 MS. KAPLAN: Sure, your Honor; it's Roberta 8 Kaplan. Let me -- first, to answer your question directly, 9 let me tell you that our client is still considering 10 whether to participate in the program. But -- 11 THE COURT: I'm sorry, is still considering? 12 MS. KAPLAN: Yes, whether or not to -- 13 THE COURT: Okay. 14 MS. KAPLAN: And she may indeed well do that. But 15 I think it's very important for the Court to understand 16 that the program itself is not a settlement discussion of 17 this case in the sense that the defendants in this case, as 18 we understand it, have no role in relationship to ability 19 to interfere in any way -- in any way -- with the 20 settlement program. So essentially the way it works, as we 21 understand, is Ken Feinberg and his colleagues will come up 22 with a number. That's the number, and it's either take it 23 or leave it. There's no subsequent negotiation with the 24 estate or anyone else. And so it's not like it's really a 25 settlement discussion of this case; it's not. It's an EFTA00102408  1 PROCEEDINGS 6 2 amount of money that Mr. Feinberg thinks is appropriate 3 under the settlement fund. 4 For many reasons, including the fact that we 5 believe our client is differently situation than many if 6 not all of the other plaintiffs, she believes that there is 7 a very strong likelihood that she is likely to receive more 8 in this case at trial than she would from whatever 9 Mr. Feinberg determines on his own is the appropriate 10 number. 11 And that's for a couple of reasons. One, very few 12 of the cases or not many of the cases have plaintiffs who 13 were underage at the time the acts happened. So there is 14 no statute of limitations problem in this case. And, two, 15 there is no issue in this case, as there are in many of the 16 other cases, about whether or not our client settled any 17 prior claims with either Mr. Epstein or the estate. And 18 the facts are straightforward. She was, as your Honor 19 knows, was witness No. 1, victim No. 1 in the indictment. 20 The U.S. Attorney's Office was fully satisfied in her 21 story. We believe that, whether it's a bench trial, as 22 we've requested, or a jury, that either the judge or the 23 jury will be, too. 24 THE COURT: If she does participate in the program 25 and an amount is offered to her and she decides to accept EFTA00102409  1 PROCEEDINGS 7 2 it, does that have the result of resolving this litigation? 3 MS. KAPLAN: Absolutely. And the minute that 4 happens, we would obviously voluntarily dismiss this case. 5 I think that's a condition of participation in the program. 6 THE COURT: All right. So -- 7 MS. KAPLAN: We also don't know, your Honor, how 8 quickly the program's going work, how many women have been 9 in it. And, again, based on our understanding of the kind 10 of damages awards that Mr. Feinberg and his colleagues have 11 given in analogous circumstances -- and I'm thinking of the 12 Catholic church cases we think it's unlikely, very 13 unlikely that our client is willing to accept the kind of 14 amounts that he's previously offered in similar situations. 15 THE COURT: Well, I assume if you decide to 16 participate in it, you'd participate in it, consider any 17 amount that may be offered, you know, in full good faith, 18 and mull it over and make a decision. You're not going to 19 go into it saying we're not going to accept it whatever it 20 is; you find out what it is. 21 MS. KAPLAN: Oh, no, no, no, no. 22 THE COURT: You find out what it is. 23 MS. KAPLAN: Of course, your Honor. We've 24 basically done a lot of work on this, so we're basing this 25 on what we understand to be amounts that similar funds that EFTA00102410  1 PROCEEDINGS 8 2 Mr. Feinberg has administered have offered to plaintiffs 3 who've experienced things similar to what our client has 4 experienced. And the numbers tend to be actually quite 5 low. 6 THE COURT: Okay. Well, I can't speak to that. I 7 don't know what may be offered in this case. Here are some 8 concerns that I have. One concern that I have is that the 9 underlying reasoning for the Court to make the 10 institutional decision to refer a lot of these cases -- I 11 mean, I shouldn't say that, actually, because it was still 12 an individual judge's decision to refer or not to refer -- 13 most of the judges decided that they would refer cases to 14 me so that there could be coordination among the cases 15 where appropriate in discovery to conserve resources, both 16 for the estate, for the Court, just generally to have 17 coordination so that you didn't have, for example -- and I 18 think it's the most obvious example -- a witness who was 19 going to testify to something that would be relevant to all 20 of the different plaintiffs have to testify on multiple 21 occasions if that could be avoided. And that seems to me 22 still to be a laudable goal. And if it's possible that 23 your client may -- 24 I just want to make sure that we didn't gain -- 25 that sounds like someone joining the call -- we didn't gain EFTA00102411  1 PROCEEDINGS 9 2 any attorney who wants to be participating in this case. 3 Did anyone just join in who wants to be speaking on this 4 call? No. If not, please keep your phone line mute; I 5 appreciate that. 6 If your client decides to participate in the 7 program, then, you know, query why we're spending a lot of 8 resources now, as opposed to in a couple of months. Most 9 of the stays that have been put in effect are only for a 10 couple of months; they're not infinite stays. There are a 11 couple, I think, that were signed by district judges 12 separately that might say Pending Further Order of the 13 Court. The ones that I've signed recently I think have 14 been 60 days. Mr. Moskowitz, correct me if I'm wrong on 15 that. 16 MR. MOSKOWITZ: Your Honor, it's been both, 17 actually. I think the majority are even, I would argue, 18 more flexible than that. I believe the majority, including 19 even more recent ones, just say on the plaintiffs deciding 20 that they no longer want the case stayed, they're 21 essentially free to go back to court and ask for the stay 22 to be lifted. I think there are three or so that include a 23 specific 60 days, which I suppose could be renewed or just 24 let lapse. 25 THE COURT: Yes, I think the most recent ones were EFTA00102412  1 PROCEEDINGS 10 2 60 days, the most recent ones that I signed off on. So 3 those are the ones most recent in my memory. But I've 4 asked for status reports on all of them by sometime mid- 5 August because I don't want it to stretch out forever. 6 So the first issue is should we be conserving 7 resources in case your client ends up resolving the claims 8 through the program. And the second is if your client 9 really is unlikely to participate, unlikely to resolve the 10 claims that way, is there a possibility, and how likely is 11 this, that one of the other plaintiffs or more than one of 12 the other plaintiffs will make a similar decision and will 13 want to come back and litigate maybe in a couple of months, 14 and at that point, would it make sense to try to have some 15 coordinated discovery, particularly again with respect to 16 certain depositions perhaps or certain discovery from the 17 estate or some of the discovery plaintiff by plaintiff is 18 going to be different -- and I understand that -- but some 19 of it is likely to have some common threads; is there a 20 distinct prejudice to waiting for some reasonable limited 21 period of time to see if somebody else comes back into the 22 mix before we go forward with a slew of depositions? And 23 part of the reason for the call was when I asked you to see 24 if you could work out a schedule that included dates for 25 depositions and stop just squabbling about it, you came EFTA00102413  1 PROCEEDINGS 11 2 back with nearly a dozen depositions over a relatively 3 short period of time. And that sort of jumped out at me as 4 wait a second; does it make sense for any of those, at a 5 minimum even if not all of them, to be put on hold to see 6 whether they're the kinds of things that should include 7 parties in more than one of these cases in order to have a 8 more efficient running of multiple cases to conserve 9 resources, including resources of the estate, which after 10 all, maybe can and should be going towards plaintiffs as 11 opposed to litigation costs. 12 And so, you know -- and there are a lot of things 13 that factor into that kind of thought process. One of them 14 is when you have a delay, you know, how likely is it that 15 documents won't be preserved or that memories will fail. 16 Here we have a very long time since the underlying events, 17 and so the likelihood that, you know, memories will fail 18 now that haven't failed already or that documents won't be 19 preserved now when there's a litigation hold when they 20 weren't preserved already -- when they weren't previously 21 preserved, that seems unlikely. And in terms of how fast 22 could this case otherwise get to trial, since I'm sure 23 plaintiff, you know, doesn't want to delay any longer than 24 necessary to reach a resolution, we have the COVID-19 25 issue, which means that we're set back as a court with EFTA00102414  1 PROCEEDINGS 12 2 respect to how fast we can get cases tried. And that's 3 just a current fact of life. 4 And I was speaking to Judge Failla about this to 5 try to get a sense from her as to what she thought, and I 6 don't know if this would be a bench trial or a jury trial. 7 Which would it be, by the way? 8 MS. KAPLAN: Plaintiffs have waived a jury trial. 9 THE COURT: Okay. So with a bench trial -- 10 MR. MOSKOWITZ: We have -- I'm sorry, we -- 11 MS. KAPLAN: It's hard for me to believe, your 12 Honor, it's hard for me to believe that -- 13 THE COURT: Wait, wait, wait just a second. Did 14 defendant -- 15 MS. KAPLAN: Can I finish what I was going to say? 16 It's hard -- defendants have not responded to that -- it's 17 hard for me to believe that the defendants truly believe 18 that they're going to insist on a jury, given the facts and 19 circumstances of this case, but they have refused to tell 20 us whether or not they agree to waive a jury trial. 21 THE COURT: What is defendants' position on this? 22 Because if you didn't -- 23 MR. MOSKOWITZ: Yeah, the position -- 24 THE COURT: -- answer -- 25 MR. MOSKOWITZ: -- was not file -- no, that's not EFTA00102415  1 PROCEEDINGS 13 2 correct, your Honor. The plaintiffs' last exchange on this 3 was they -- they said, "Will you waive a jury trial?" We 4 said we're not prepared at this time to make that decision 5 and waive a jury trial. And they said, "Fine. Let us know 6 by the 30th; otherwise, our offer of waiving the bench 7 trial is no longer there." What I'm hearing now is that 8 they are absolutely committed to waiving jury trial. I 9 still am not prepared at this time to make that waiver on 10 my side, nor do I see why it has to be decided at this 11 time. 12 MS. KAPLAN: Yes, what you're hearing, 13 Mr. Moskowitz, is that you are delaying again in bad faith 14 because there's no reason -- 15 THE COURT: All right, wait, wait, wait, wait, 16 wait, please. Everybody stop. I don't need to get into an 17 argument about whether there is or is not a jury trial. 18 I'm going to say this about that. I was raising it only 19 because it's going to be harder to get a trial quickly on 20 this case in light of the COVID-19 problem than it would be 21 otherwise. What's happening in the court is this. With 22 respect to juries, right now we don't have jury trials 23 because we can't get jurors safely in the court. When we 24 eventually get juries safely in the court, odds are there 25 will be fewer jurors coming in than had been before in the EFTA00102416  1 PROCEEDINGS 14 2 initial jury pools because we have to make sure people will 3 be socially distanced. The cases that will go first with 4 juries are undoubtedly going to be the criminal cases where 5 there's a constitutional right to a speedy trial. There's 6 going to be something of a backlog on that. Any cases that 7 are large, that involve large numbers of people in the 8 courtroom are probably going to have to be held in certain 9 designated courtrooms that are particularly large that will 10 enable social distancing. Courtrooms are currently being 11 measured so we can figure out how trials can safely be 12 held, and so on and so forth. In terms of how quickly a 13 civil jury case can be held, the answer is not that fast. 14 Just we're going to have to -- we have a lag time to get 15 jurors, we have a lag time to get enough jurors, we're 16 going to have to deal with the criminal cases, we're going 17 to have to deal with things like Court size. And odds are 18 that that is not happening just -- I can't tell you when it 19 will, but it's not going to be all that fast. 20 With respect to bench trials, there are some 21 judges who are venturing into the world of holding remote 22 bench trials. I believe Judge McMahon has one scheduled. 23 There are some others who have been making efforts and 24 figuring out remote platforms that will work. And there's 25 also the possibility of sort of hybrid trials where you EFTA00102417  1 PROCEEDINGS 15 2 have some people in person and you have some people hooked 3 in remotely, you know, certain witnesses or something like 4 that. That is certainly a possibility. But everybody's 5 schedule for trials has also been affected so that if, for 6 example, Judge Failla, who has this case for trial -- and I 7 can't speak to this -- but if, for example, Judge Failla 8 had three criminal trials that she was unable to try 9 because of this period of time when ordinarily trials would 10 be happening, and so those have to be scheduled, then even 11 a bench trial may be difficult to schedule, even if it is 12 logistically possible, because of other things that are 13 going to be on the judge's plate. 14 So when I look at the issue about delay, there are 15 two main questions that come up with respect to potential 16 delay. One is is it prejudicial to the plaintiff, or to 17 the defendant for that matter, because we're likely to lose 18 evidence, we're likely to have a witness who is 19 MS. KAPLAN: Your Honor, can I argue the rest of 20 the factors that you talked about earlier? Because we have 21 things to say about all of them. 22 THE COURT: Yes. Let me finish what I'm saying, 23 and I'll absolutely hear from you. Okay? 24 MS. KAPLAN: Okay. 25 THE COURT: I keep hearing people joining the EFTA00102418  1 PROCEEDINGS 16 2 call. I'm just going to issue the reminder please keep 3 your line mute unless -- on mute unless you're a 4 participant in this call, in which case please speak up and 5 let us know you are here. 6 With respect to the loss of evidence, it may 7 be -- and it's a question I usually ask -- you know, it may 8 be there is a particular witness who is ill or very elderly 9 or you know is about to move out of the jurisdiction, you 10 need to preserve evidence, something like that, and those 11 are issues in any case where there is any stay, any delay, 12 that I always want to know about because it may be 13 important to address those particular issues with 14 particular witnesses or particular evidence. 15 The second thing I look at is what is the end of 16 the road in the case. Is it -- would it, you know, be 17 triable next month, or would it be waiting, anyway, for 18 trial. Here, odds are, even with a bench trial, there's 19 going to be some wait. And so where does the end end up. 20 And that is a factor to think about here and whether it 21 makes sense to hold off on any of the discovery that's 22 currently on the table to see whether either plaintiff 23 resolves the claims through the program or anyone else 24 whose case is currently stayed comes back into the court 25 and says, "Please lift the stay. I want to go forward with EFTA00102419  1 PROCEEDINGS 17 2 discovery to give us a chance of coordinating that 3 discovery if it makes sense for the particular discovery. 4 Now, having said all that, I will absolutely hear 5 from you. Counsel? 6 MS. KAPLAN: Okay. So, number one, on prejudice, 7 your Honor, there will be prejudice to my client even with 8 respect to the Feinberg settlement fund. One of the issues 9 that the Feinberg settlement funds says they will look to 10 in deciding whether or not to award fees or award damages 11 and how much to award is based on the corroborating 12 evidence for the particular person. In our case at this 13 point, we have produced all the documents that we have from 14 our plaintiffs to the other side. Mr. Moskowitz, on the 15 other hand, has produced barely nothing. So that if 16 discovery is stayed at this point, our rights to get a 17 higher award from the Feinberg fund are severely 18 prejudiced. We know they have corroborating information. 19 They have hits that show our client's name and contact with 20 our client. We should be able to obtain those documents, 21 which should have been produced to us long ago, in order to 22 use that if we agree to proceed with the fund to 23 corroborate and to make our claim toward the fund stronger. 24 And by this delay tactic that's gone on and on and on, what 25 they've done is have us produce everything but us not have EFTA00102420  1 PROCEEDINGS 18 2 the information that we should have that Feinberg, Ken 3 Feinberg, has said is relevant to a determination under the 4 fund. So under no circumstances should there be any stay 5 or delay of document discovery. In fact, that would be 6 severely unfair, given our alacrity and our good faith in 7 producing everything, and unfair to our opportunity to 8 participate in the fund, number one. 9 THE COURT: Okay. Just let me interrupt you there 10 for one second, because I was not talking so much about 11 documents regarding the particular plaintiff in this case 12 or discovery, for that matter, regarding the particular 13 plaintiff in this case. What I was talking about was 14 whether there -- whether we should still look for any 15 potential opportunities that may come up down the road to 16 coordinate discovery where it made sense because it was 17 common discovery for all of the cases, probably not 18 plaintiff specific. 19 MS. KAPLAN: So on that issue, your Honor, I'm 20 frankly not aware of any real discovery or evidence in this 21 case that is not plaintiff specific. The trial, when and 22 if it takes place, will last no longer than two, three 23 days. The witnesses will be our clients, psychological 24 forensic experts, maybe one or two people who she told 25 about what happened. And the only two people who EFTA00102421  1 PROCEEDINGS 19 2 possibly -- we don't have claims against anyone else, we 3 don't have claims against Ms. Maxwell, we don't allege any 4 kind of wider conspiracy regarding Prince Andrew the way 5 the other cases do. It's a very simple, very 6 straightforward case. The only possible overlap that I can 7 possibly think of -- and Ms. Doniger should correct me if 8 I'm wrong -- are two of the women who worked for 9 Mr. Epstein who helped book the so-called massages that our 10 client participated in, both of whose lawyers have told us 11 they intend to plead the Fifth. So we could honestly get a 12 letter from them telling they intend to take the Fifth. 13 And there is, therefore, no overlapping evidence, either in 14 terms of documents or witnesses. 15 THE COURT: Are they included or not included in 16 the 11 depositions that you listed? 17 MS. KAPLAN: They are. We have very few 18 depositions. Most of the depositions are ones that 19 Mr. Moskowitz is noticing of my client's doctors, family 20 members and friends. 21 THE COURT: And why do you think that those might 22 not be witnesses who would testify at trial such that the 23 trial might have more witnesses than what you've described? 24 You've got 11 people to be deposed. That sounds to me like 25 there might be 11 witnesses at trial except for maybe a EFTA00102422  1 PROCEEDINGS 20 2 couple who take the Fifth. 3 MS. KAPLAN: No. It's highly unlikely, your 4 Honor. Most of the people, as we notified Mr. Moskowitz 5 many times, like doctor's offices that she's gone to where 6 they told us they have no records; or friends that, you 7 know, barely remember. We were very, as your Honor can 8 imagine, we were very overinclusive to be extremely careful 9 on our 26(a) disclosures. And they just noticed everyone 10 on the 26(a) disclosures, not -- it's very unlikely that 11 any of those people are going -- or most of those people 12 are going to testify at trial. We're certainly not going 13 to put them on. And I would suggest that the point of 14 deposing them is to, again -- I don't know what the point 15 of deposing them is, but I guess he wants to depose all 16 these people under oath and ask them questions. It's very 17 unlikely that any of them will say anything that's going to 18 be relevant to his defenses. 19 THE COURT: Let me hear briefly on the other side 20 about these witnesses. 21 MR. MOSKOWITZ: Yes, your Honor, Bennet Moskowitz. 22 I feel like I'm talking about a different case than the one 23 Ms. Kaplan is talking about. And part of this may be 24 because the day-to-day of discovery is not handled by 25 Ms. Kaplan. I've been dealing exclusively with her EFTA00102423  1 PROCEEDINGS 21 2 colleague who is on the line. So I'd just like to back up 3 and clarify a few things. 4 One is they have not substantially completed their 5 document production, even putting aside the disputes we 6 have over what they say they don't have to do. In fact, 7 the latest -- and maybe Ms. Kaplan, although she was copied 8 on these emails, wasn't aware of it -- is that they refused 9 to review 7,000 documents that hit on search terms to be 10 proposed. And we suggested ways they can narrow that. And 11 we haven't yet reached a resolution of that. 12 In terms of our production, the documents -- we 13 did already produce most of the few documents among over 14 730,000 that hit on their client's name. And they 15 definitively showed why that is, that such few documents 16 exist; not because we didn't find them, but rather because 17 the decedent didn't even have any knowledge of their client 18 when she appeared in more recent history regarding making 19 some kind of pre-litigation settlement demand when he was 20 still alive. So there's been no stonewalling; I'm not sure 21 where that's coming from. 22 And I want to correct one other thing. You know, 23 I'm hearing this -- and you're right; this plaintiff stands 24 alone. Her counsel now stands alone. So these complaints 25 about the program, they fall flat, given that every other EFTA00102424  1 PROCEEDINGS 22 2 attorney who was likewise very skeptical, as your Honor 3 knows, has voluntarily stayed their action, with the 4 exception of two cases other than this one that were filed 5 much later, and I'm actually confident we'll reach similar 6 resolutions in those cases. But we will see. It's not the 7 Feinberg fund. Mr. Feinberg's not the administrator. It's 8 Jordana Feldman. Ms. Kaplan knows that. I don't know why 9 she insists on saying that as if it's some kind of ding 10 against the program. Mr. Feinberg, who's the preeminent 11 person who designed such programs, is indeed one of the 12 designers of the program. But there is one administrator, 13 Jordana Feldman, who has full independence. And Ms. Kaplan 14 is right; we don't get to tell Ms. Feldman what should be 15 awarded to this plaintiff. It is solely Ms. Feldman who 16 makes that determination. I don't know why that is viewed 17 as a bad thing; and, again, plaintiff here stands alone in 18 saying that. 19 Look, your Honor, raised this, as well. This is 20 the world we live in, not as we want it. There is going to 21 be no trial around the corner, whether it's bench trial or 22 jury trial. The estate is not -- is not in favor of 23 dragging things out. That's part of the reason that the 24 program is designed the way it's designed. It's a much 25 speedier resolution of claims than any litigation, EFTA00102425  1 PROCEEDINGS 23 2 including this one. And the fact that we're now having 3 these disputes in this case while the plaintiff, for 4 whatever reason, wants to rocket through the docket to 5 have, I guess, what they view as, you know, the first crack 6 at a payment of judgment, I get why they want that. But 7 it's not realistic, number one, because of all the reasons 8 your Honor went over; and the other realistic factor that 9 we're ignoring is the money spent on this, it's just not 10 going to be available to the program. That's a harm to 11 this plaintiff if she's going to join -- and I believe she 12 is -- they've struggled in many different ways to avoid 13 saying yes, they're going to do the program. I'm very 14 confident they will, based on my understanding of their 15 heavy involvement in discussions with Ms. Feldman and 16 Mr. Feinberg. But that money is not going to go to this 17 plaintiff, it's not going to go to any other plaintiff. 18 That's their choice. We haven't sought a stay; it's not 19 required. That was one of the other benefits of the 20 program. But the fact that everyone else, for the most 21 part, has seen the wisdom in staying their action but this 22 plaintiff is the outlier speaks volumes to their intent, 23 not ours. 24 In terms of these depositions, look, they can't 25 have it both ways. They said we were very careful in only EFTA00102426  1 PROCEEDINGS 24 2 disclosing the people that really have anything of 3 knowledge. Yeah, they did that, and we need to speak to 4 these people. This is a serious case, they're seeking 5 serious damages. They haven't told us how much and, you 6 know, that's part of our letter, which is just unbelievable 7 now that we're nearly a year out from when they filed it. 8 But the fact that their client saw so many doctors related 9 to their myriad of alleged harms is what drives our need to 10 depose so many people. 11 There are only a couple of fact witnesses, and 12 then they mentioned family members like we're trying to 13 bully people, well, paragraph 58 of the complaint brings 14 the plaintiff's husband directly into this case because she 15 alleges that Mr. Epstein's abuse that allegedly occurred 16 caused her issues in her marriage. We didn't bring him 17 into the case; they did. So, yes, we do need to depose the 18 husband. We're not going out and deposing relatives that 19 have not been brought into the case and that we have no 20 reason to believe know anything, but it is going to be more 21 than two witnesses and this. You know, you hear a lot of, 22 oh, it will be this, so a day later we'll be done. That's 23 how they want it. But we have a lot more to do. 24 And we're very unhappy that they're just, after 25 many weeks where we had what I thought were very productive EFTA00102427  1 PROCEEDINGS 25 2 conversations, it was really just between me and Kate and 3 some of her colleagues -- Ms. Kaplan was not part of those 4 discussions. They turned around and basically said to us, 5 "All right, well, it's your fault you waited so long; you 6 really better finish your depositions in, you know, record 7 time." What is the rush? Like your Honor said, there is 8 not going to be any trial tomorrow. It's not going to be 9 next month. There is time to do this. There's even time, 10 if the Court sees the wisdom in it, for a 30- or 60-day 11 stay, just like in all the other actions. No one will be 12 harmed. The only harm that for certain will happen if this 13 case continues to go forward in this fashion is that we 14 will have to burn through litigation fees having to deal 15 with disputes over documents, depositions that may be avoid 16 altogether. 17 So the situation is clear, and your Honor already 18 got it exactly right. You don't need me to explain to you 19 what the situation is. Your Honor already correctly 20 understands it. 21 MS. KAPLAN: Your Honor, when my client was -- 22 THE COURT: Who are the -- who -- 23 MS. KAPLAN: -- a 14-year-old girl -- 24 THE COURT: Hold on, please. These 11 witnesses 25 for deposition, can I just make a list of who they are by EFTA00102428  1 PROCEEDINGS 26 2 kind of the category? In other words, a plaintiff's 3 doctor, a plaintiff's doctor, a plaintiff's relative, and 4 how many are not directly connected to plaintiff in that 5 sort of way. 6 MR. MOSKOWITZ: Sure, I could do that. And it was 7 actually -- plaintiff's counsel asked us not to put the 8 names in the submissions, so we 9 THE COURT: No, I don't want the names 10 MR. MOSKOWITZ: -- abided by that. 11 THE COURT: -- I just want -- 12 MR. MOSKOWITZ: Yeah, I won't do that. 13 THE COURT: -- just like the concept of who they 14 are. 15 MR. MOSKOWITZ: Sure. So four individuals are, I 16 believe, friends of plaintiff that they disclosed as having 17 knowledge of plaintiff's allegations. I believe there are 18 three treating physicians that they disclosed. There is 19 also the plaintiff's husband, which I just went over. And 20 then there's the plaintiff's deposition and Rule 35 21 examination. And then the other two are the alleged co- 22 conspirators that -- and those are depositions that the 23 plaintiff seeks, not us. And those are people that are 24 in -- 25 MS. KAPLAN: Your Honor, exactly -- exactly as I EFTA00102429  1 PROCEEDINGS 27 2 explained, there is no overlapping witnesses in this case, 3 other than the two co-conspirators, again, both of whose 4 attorneys have told me they intend to take the Fifth. And 5 they're not co-conspirators in the sense that we're suing 6 them; they're co-conspirators in the sense they were the 7 two women who booked so-called massages for my client with 8 Mr. Epstein when she was a child of 14 years old. 9 Our client has waited, your Honor, a very long 10 time to get justice from Mr. Epstein and now from his 11 estate. The idea there's a $350 million estate -- or at 12 least that's what they say it is -- that our client should 13 wait so that the estate can save on litigation costs, given 14 what Mr. Epstein has done to my client, is not only 15 unconstitutional but offensive. All these depositions are 16 depositions they want to take. There's no overlap with 17 other cases. The reason -- the explanation he gave you 18 about documents, they gave us one woman's name and said, 19 "Search the name Maria," for example. And we had 7,000 20 hits, and we said, "That's not the way to do it. Give us 21 some limiter. Maria within 5 of X or 5 of y. That's the 22 way people do litigation, as I'm sure your Honor knows as a 23 magistrate in the Southern District. And they refused to 24 do that. 25 So the idea that we should have to wait for the EFTA00102430  1 PROCEEDINGS 28 2 settlement fund when an explicitly bargained term of the 3 settlement fund was that no one would have to wait, that no 4 one would have to stay their claim, it's written into the 5 fund itself, when there's no overlap and when we've 6 completed our document production and we're waiting for 7 theirs is frankly unfair, especially because it will 8 prejudice us with respect to the fund. Mr. Feinberg and 9 Jordana have said very clearly they're looking for all the 10 documents they can get their hands on. 11 THE COURT: Okay. Okay. I am -- I would like it 12 if you could try to pin down if in fact these two witnesses 13 are planning to take the Fifth because, if so, that will be 14 a very short deposition. I'm sure it can be -- maybe it 15 can be done in writing ahead of time; or if you must have 16 somebody on the record, I'm assuming you can say, you know, 17 general questions, "If I were to ask you any questions 18 about this or that, would the answer be the same?" And it 19 would be very short -- 20 MS. KAPLAN: Of course, your Honor. 21 THE COURT: I'm sorry -- that would be very short. 22 And that does not trouble me in terms of a lot of cost or 23 time. 24 I'm satisfied with respect to the other witnesses 25 that they are very case specific and that there would not EFTA00102431  1 PROCEEDINGS 29 2 be any lost opportunity -- if I have those depositions go 3 forward, there would not be any lost opportunity for 4 coordinating depositions with other cases because it sounds 5 like these other witnesses would not be relevant to other 6 cases. If it is -- if there are people who are 7 particularly friends of the plaintiff and they're being 8 asked to testify about things other than what plaintiff's 9 told them, you know, they may have been friends of others, 10 as well, you know, but I'm satisfied that the questioning 11 here will just relate to this plaintiff. Treating 12 physicians are obviously this plaintiff's doctors. 13 Plaintiff's husband is obviously this plaintiff's husband. 14 And the plaintiff is obviously the plaintiff. So it does 15 not sound like there are efficiencies or economies there 16 that I should be concerned about with respect to 17 depositions, which was my first reaction when I saw that 18 long -- a list of deposition dates. Okay? 19 It may be also, if some of these witnesses really 20 do not have much information, you will have -- you can 21 either work out a substitute way to depose them that makes 22 it simpler -- you don't have to retain a court reporter and 23 you can just get some written statement or something or 24 maybe you can have more than one in a day or something to 25 make these take less time and be less costly. And I will EFTA00102432  1 PROCEEDINGS 30 2 say that I am charged, under Rule 1 of the Federal Rules, 3 with trying to make sure that they are interpreted and 4 administered in a way that not only is efficient but that 5 is -- that keeps the economies in mind and keeps the cost 6 in mind. And I need to do that as I look at a case. I 7 need to do that with respect to document production. I 8 need to do that in general. 9 With respect to document production, it's hard for 10 me to tell exactly what's been going on here. Each side 11 claims that it's been, you know, highly forthcoming and the 12 other side has not been. I don't really want to hear that. 13 I really just want to hear that you're working 14 cooperatively and in an efficient manner to get the 15 productions done. If they are productions that are 16 specifically related to plaintiff, then I don't really see 17 the reason to hold it up. I mean, I do think that it would 18 be nice if every last dime in the estate could be kept 19 there and be used for compensating victims if there's, you 20 know, it's demonstrated that people have been victims, that 21 they should get the money as opposed to the lawyers getting 22 the money. But, you know, if it's very case specific, if 23 it's very plaintiff specific and plaintiff wishes to 24 proceed with it, I'm going to let that proceed. If there 25 are any documents that are not case specific and where EFTA00102433  1 PROCEEDINGS 31 2 there would be any efficiencies to doing it differently, I 3 don't see it the same way as I see it with respect to 4 depositions where you might want to have other lawyers in 5 the room asking questions. I see less reason to hold off 6 on the document production. But if there's something I'm 7 not thinking of that you want to bring to my attention, 8 bring it to my attention. 9 But I'm going to resolve the disputes that are in 10 front of me about documents in particular. And I'm going 11 to, you know, urge you to move forward civilly and without, 12 you know, name calling or finger pointing or charging the 13 other with any kind of shenanigans and just try to get it 14 done. 15 MS. KAPLAN: Agreed, your Honor. 16 THE COURT: I don't know that I have a motion to 17 compel from the plaintiff. I know I have a motion to 18 compel or a request for a conference in connection with a 19 motion to compel on the defendants' side seeking more from 20 plaintiff. But plaintiff's counsel was complaining on this 21 call. Do you also have ripe issues on your side that 22 you -- 23 MS. KAPLAN: I anticipate -- no, no, your Honor. 24 I anticipate we'll be able to work out whatever remaining 25 issues we have -- EFTA00102434  PROCEEDINGS 32 2 THE COURT: Perfect. 3 MS. KAPLAN: -- on our side. We do not have a 4 motion to compel at this time. 5 The only other thing I wanted to clarify, your 6 Honor, is it's not my understanding that all -- let's 7 assume the estate has $350 million. It's very clearly not 8 my understanding that the estate has committed to pay the 9 entire amount of the estate to Mr. Epstein's victims. And 10 that's not the way the Feinberg fund was set up or will be 11 administered. Rather, it's my understanding, that any 12 amounts that are not paid to victims will go to the heirs 13 under the estate, who we understand is Mr. Epstein's 14 brother. So your Honor's under a misconception if you 15 think that legal fees saved by the estate necessarily go 16 into a fund that's all going to be distributed to victims. 17 That is not the way it's been set up. 18 THE COURT: Well, it was my understanding, which 19 may be incorrect -- and, by t