be

NO

Ww

wd

Oo

Oy

~

©O

WO

oO

be

Nh

Ww

ws

Ol

Oy

~~

©O

WO

20

21

22

23

24

20

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 1 of 29 Ib7ddoec

Speakerphone Conference

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JANE DOE 43,

Plaintiff, New York, N.Y.

Vv. 17 Civ. 0616(JGR)

JEFFREY EPSTEIN, et al.,

Defendants.

November 7, 2018 4:00 p.m.

Before: HON. SARAH NETBURN, Magistrate Judge APPEARANCES (via speakerphone) BOLITES, SCHILLER & FLEXNER LLP Attorneys for Plaintiff BY: SIGRID S. McCAWLEY —- and -

PAUL G. CASSELL Attorney for Plaintiff

LINK & ROCKENBACH, P.C.

Attorneys for Defendants Jeffrey Epstein, Sarah Kellen and Lesley Groff

BY: SCOTT J. LINK

HADDON, MORGAN AND FOREMAN, P.C.

Attorneys for Defendant Ghislain Maxwell Haddon, Morgan & Foreman, P.C.

BY: LAURA A. MENNINGER

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

1

H

NO

Ww

wd

Oo

Oy

~

0O

WO

oO

hp

Nh

Ww

ws

Ol

Oy

I

©O

WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document175 Filed 11/28/18 Page 2 of 29 2 Ib7ddoec

Speakerphone Conference

(In chambers; speakerphone call initiated)

THE COURT: Good afternoon. This is Judge Netburn. I have you here with my law clerk and with a court reporter.

What I'm going to ask is that each party state its

appearance for the record, and then if I can request that

whenever anybody speaks, that that person identify themself again so that the court reporter can properly attribute your

comments to the correct person. And then last housekeeping

matter is that when I do these telephone conference, I do them as a courtesy to the parties. Obviously, you can't read body language over the phone, so please be considerate of one another and do your very best not to speak over somebody who is

speaking.

So, who is here on behalf of the plaintiff?

MS. McCAWLEY: Good afternoon, your Honor. This is

oy

Sigrid McCawley, from the law firm of Boies, Schiller &

Flexner, and I represent the plaintiff Sarah Ransome, and I have on the line with me as well Paul Cassell, who is our co-counsel who also represents plaintiff, Ms. Ransome.

THE COURT: Thank you.

MR. CASSELL: Good afternoon, your Honor.

THE COURT: Good afternoon.

And on behalf of Mr. Epstein and others?

MR. LINK: Good afternoon, your Honor. This is Scott

Link on behalf of defendants Epstein, Kellen and Groff, and we

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

NO

Ww

ws

Oo

Oy

~

©O

WO

hn oO

ay be

Nh

Ww

KB ws

Ol

hn Oy

~l

hn ©O

hn WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document175 Filed 11/28/18 Page 3 of 29 3 Ib7ddoec

Speakerphone Conference

really appreciate your time this afternoon. Thank you.

MS. MENNINGER: Good afternoon, your Honor. Laura

Menninger on behalf of defendant Ghislain Maxwell.

THE COURT: Thank you.

All right. So I have a series of letters from the

parties regarding the dispute over the confidentiality order. My understanding is that the parties agree in principle to a confidentiality order but we have some disputes over its scope. Having reviewed the two versions that were filed yesterday, I believe the primary disputes are on paragraph 3, where the definition of what is confidential is being negotiated, and then with respect to paragraph 8, about who is

the qualified designating party. And then in the plaintiff's

proposal there is a paragraph 13, regarding what to do with respect to electronic information that is sought by subpoena

from a nonparty.

Are those the three areas in dispute at this point?

MS. MENNINGER: Your Honor, this is Laura Menninger for Ms. Maxwell.

There also is a dispute in paragraph 12 that relates to the paragraph 13, that is whether electronic copies could be -- after the conclusion of the case.

THE COURT: Sorry. You cut out for a minute. Whether electronic copies?

MS. MENNINGER: Could be maintained after the

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

NO

Ww

ws

Oo

Oy

~

©O

WO

im oO

ay be

Nh

Ww

KB ws

Oo

hn Oy

~

hn ©O

hn WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document175 Filed 11/28/18 Page 4 of 29 a Ib7ddoec

Speakerphone Conference

conclusion of the case.

THE COURT: OK. I see what you are referring to.

All right. So let's begin with paragraph 3, which is

the definition of "confidential." And as I understand it,

defendant Maxwell seeks a definition that would encompass

information that is, quote, confidential, and implicates common law and statutory privacy interests. Whereas the designation

from the plaintiff is, in my opinion, more broad, which just

requires a good faith basis to believe that the material is entitled to confidential treatment.

So the plaintiff here seems to be advocating for a

—

more broad definition of confidentiality. I think the problem with that is should there be a dispute that I need to resolve as to whether something is appropriate or not, I think the way it is written in paragraph 3 would require me to evaluate whether or not the designating party had a good faith basis and potentially even their own subjective view. And to the extent there is an objective test that is implicit here, I'm not quite sure what I would be weighing that against. So I'm not -- I'm a little concerned that paragraph 3 is so broad.

That said, I think -- you know, I guess I'm curious to hear what the nature of the conversations have been on this particular topic to get a sense of where the real concerns lie.

MS. McCAWLEY: Your Honor, this is Sigrid McCawley for

the plaintiff. If I could just address that briefly?

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

No

OO

US

Oo

Oy

~

©O

WO

oO

be

No

(C8)

oS

Oo

Oy

~

oO

WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document175 Filed 11/28/18 Page 5 of 29 5 Ib7ddoec

Speakerphone Conference

The one -- with respect to paragraph 3, the one thing

that is also different between the version that we proposed and the version that Ms. Maxwell proposed which relates to paragraph 3 is in the beginning, the opening paragraph of

Ms. Maxwell's protective order, you will see additional

language that is not in our protective order, and that is the

sentence that says, "Upon" —- at the very beginning of the

protective order, "Upon a showing of good cause in support of

the entry of a protective order to protect the discovery and

dissemination of confidential information or information which will improperly annoy, embarrass, or oppress any party, witness, or person providing discovery in this case, it is so ordered." That language is not included in our introductory paragraph.

We have in our proposal order, "Upon a showing of good

cause in support of the entry of a protective order to protect

the discovery and dissemination of confidential information in

this case, it is so ordered," because in our view that language allows the defendants to mark in a broad manner information as

confidential that may not have -- they may not have a good

faith basis for asserting confidentiality.

THE COURT: Can we pull back the lens for a minute?

What are the types of documents that we are talking about here that the parties have concern over? MS. McCAWLEY: This is Sigrid McCawley again for the

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

NO

Ww

ws

Oo

Oy

~

©O

WO

im oO

ay be

Nh

Ww

Ka ws

Ol

hn Oy

~

hn ©O

In WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document175 Filed 11/28/18 Page 6 of 29 6 Ib7ddoec

Speakerphone Conference

plaintiff. Your Honor, we started this conversation by in this

case not proposing a protective order; it is the defendants who

wanted the protective order. We agreed to it in good faith in

order to try to move discovery along in this case.

My understanding is the types of -- you know, I see

this as a sexual trafficking case, and the types of information

that will be exchanged may have information of a sexual nature.

However, unlike prior cases that we have had that have dealt

with minors, the plaintiff in this case was not a minor at the

time she was trafficked. So we were we believe that we did not need a protective order in this case as an initial matter. The defendants would like a protective order in this matter.

THE COURT: So maybe, Ms. Menninger, you can tell me

what it is that you believe you are -- what is motivating you here? What are you worried about producing that you want to keep confidential?

MS. MENNINGER: Your Honor, I believe that the majority of the concerns will be related to discussions during depositions about sexual activities. Plaintiff has alleged not only that my client ran a sex trafficking organization but she claims also that she was directed by my client and the Epstein defendants to have sex with third parties, including Alan

Dershowitz, for example. And so to the extent my client or

Mr. Dershowitz or anyone else is going to be asked about their

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

IN)

(C8)

US

Oo

Oy

~

oO

WO

oO

be

No

(C8)

os

Oo

Oy

~

oO

WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 7 of 29 Z Ib7ddoec

Speakerphone Conference

private sexual activity, I believe that would implicate their

privacy rights for the reasons that Judge Sweet articulated in

the opinion that I had referenced in my moving letter. He analyzed it largely on the basis of sexual activity -- or sexual conduct being encompassed within a right of privacy -- a

broad right of privacy and that people who will be in pretrial

litigation have a right of some type around their private

affairs, to include sexual activity.

I will say that plaintiffs have requested things like

tax returns. They've requested credit card statements.

They've requested photographs. They requested all kinds of

materials relating to my client's personal life. The requests range from the years 1997 through today.

So to sort of -- I think in my view there is a mechanism within the protective order that should the other parties disagree with the designation of confidentiality, to raise that concern, and then if the parties still can't agree, to bring it to the Court's attention. I think, in my view, that's the more cost-effective and efficient way to go about this rather than a third party who get involved or a witness who is called to testify, having to raise it individually themselves in a motion to quash or a motion for a protective order.

I think it is not just documents that we're talking

about but based on my experience in the Giuffre v. Maxwell

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

a

I)

(C8)

US

Oo

Oy

~

©O

WO

oO

—

No

(C8)

oS

Oo

Oy

~

0O

WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document175 Filed 11/28/18 Page 8 of 29 8 Ib7ddoec

Speakerphone Conference

matter, it largely came up during the course of deposition

testimony. There were also medical records that were being sought, psychiatric records being sought and I anticipate that

would occur in this case as well.

THE COURT: Make sure that everybody is speaking as slowly and as clearly as possible so that the court reporter can be sure to get everybody's statement.

I guess my concern here is —— I think that this goes for both paragraphs, both paragraph 3's, that when the dispute comes up, I need to have a standard against which I can measure an application. And so, in my opinion, it is more effective if we can have some more detail. And so if the parties are prepared to agree to deem confidential, for instance, you know, information that relates to, you know, sexual conduct or sexual activity, you know, information that discloses personal identifying information, which would cover tax returns, information that discloses medical records, you know, and then, if necessary, there can be some sort of a catchall, but at least then I think that will save disputes in the first instance, and if there are disputes, it will give me some sense of what is intended here.

(Pause)

MS. McCAWLEY: Your Honor, this is Sigrid McCawley for the plaintiff.

The concern I have with the broadbrush of sexual

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

=

NO

Ww

ws

Oo

Oy

I

©O

WO

Kn oO

KY he

Nh

Ww

fh ws

Ol

Kn Oy

~

Kn ©O

Kn WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document175 Filed 11/28/18 Page 9 of 29 9 Ib7ddoec

Speakerphone Conference

activity is that the case we brought is obviously for violation

under the Sexual Trafficking Act, so it would encompass

essentially everything that's going to transpire in the case.

And while that -- there may be a way to modify that, for

example, sexual activity as it relates to minors or something

in that regard if we are going to have a witness who was abused

by, or allegedly abused by the defendants when they were

underage, I will be willing to talk about something like that

would cover or protect from that issue. But to have a very

broad definition of any sexual activity would -—- you know, everything we would be filing would be almost entirely under seal, in my view.

THE COURT: Well, you know, your point is well taken

that this is the topic of this case, and as a result, I think very little would be authorized to be filed under seal should it be relevant to an issue that the Court is going to decide. And so my —- you know, right now we're really talking about discovery and exchanging information, and I think it's reasonable for nonparties especially, but even parties, to, you know, to disclose information without a fear that it's going to be passed along to the New York Times. And so, you know, it may ultimately be covered by the press because it may

ultimately be tried, or there may be motion practice where all

of this is disclosed. But for the purposes of discovery, I'm

less sympathetic to the argument that this case is about sexual

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

I)

(ee)

US

Oo

Oy

~

oO

WO

oO

be

No

(C8)

os

oO

Oy

~

oO

WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 10 of 29 10 Ib7ddoec

Speakerphone Conference

trafficking and therefore everything needs to be available to the public.

Is there a way that you think you can narrow the issue

to accommodate your concerns? MS. MENNINGER: Your Honor, this is Laura Menninger on behalf of Ms. Maxwell.

I am happy to draft a list of potential topics that I

think are encompassed by the subject matter and circulate it.

I don't have -- I agree with all of the ones your Honor

suggested, and I would like to just take a look back at the

discovery requests thus far and see if there are any additional

ree

discrete areas along with the language for a catchall that we

hee.

could use as our measuring stick going forward.

THE COURT: What is your response to Ms. McCawley's

general concern, and, therefore, what if we limited the sexual nature documents to those that concern nonparties?

MS. MENNINGER: Your Honor, I can only speak from the experience of the last case in which my client was asked by these same counsel about her consensual sexual adult relationships with others, including Mr. Epstein. So I don't think addressing -- we are only talking about minors or

nonconsensual activities, those are the only things that are

likely to come up. If they are not planning to ask questions

about adult consensual relationships, then I probably would

have less of a concern. But we actually had a couple rounds of

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

NO

Ww

ws

Oo

Oy

~

©O

WO

Kn oO

hh be

Nh

Ww

fh ws

Ol

a Oy

I

Kn ©O

Kn WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 11 of 29 11 Ib7ddoec

Speakerphone Conference

litigation before Judge Sweet in that case over whether my client had to answer questions regarding her adult consensual sexual activities, and ultimately, relying on the protective order, he ordered her to answer those questions.

So I'm -- I don't think that the distinction about

whether it is a case involving alleged trafficking of minors or

adults changes what I anticipate may be asked. I could be completely wrong and they don't plan to ask those same kind of questions in this case.

THE COURT: OK. Why don't I ask you, Ms. Menninger, to send a revised paragraph 3. I think the goal here is to be as specific as possible. And, again, because of the nature of this litigation, I think it's likely that much of the information that you seek to hold confidential for purposes of discovery would ultimately be disclosed certainly at a trial. Obviously, this protective order makes clear of that.

MS. MENNINGER: Right.

TH

Fl

COURT: But even in the context of any motion

practice, it may well be that the Court needs to rely on this information in order to render a decision, which would then

sg

make that confidential information a judicial document for

which the public has a presumptive right of access. OK. MS. MENNINGER: All right. Yes, your Honor. I am happy to do that. This is Laura Menninger.

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

No

(C8)

wo

Oo

Oy

~

oO

WO

oO

be

No

QW

oS

Oo

Oy

~

oO

WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 12 of 29 12 Ib7ddoec

Speakerphone Conference

THE COURT: OK. So let's see what that is. I don't

think that the proviso that the defendants have in their -- Sorry.

(Pause)

—- in the opening paragraph of the protective order that talks about annoyance, embarrassment, or oppression, I

think that that should be removed, and so I would adopt the

plaintiff's version of the sort of preliminary whereas clause

for the protective order. But let's see if we can be more specific in paragraph 3 as to what it is that we are seeking to protect.

OK. Paragraph 8.

Paragraph 8, as I understand it, has to do with who has the right to designate something as confidential. And in my experience it has always been the producing party who has the obligation and the right to do so, but maybe in this case

there are other concerns that I am not focusing on. Who wants

to address this in the first instance?

MS. McCAWLEY: Your Honor, this is Sigrid McCawley. I

am the one who proposed the language for paragraph 8.

The concern we had was from other actions --

Ms. Menninger has referenced the action before Judge Sweet,

where one party would designate wholescale a nonparty, for

example, all of their testimony confidential irrespective of

whether the nonparty believes that it should be held

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

i)

Ww

ws

Oo

Oy

~

©O

WO

Kn oO

hh be

Nh

Ww

fh ws

Oo

Kn Oy

~

Kn ©O

Kn WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 13 of 29 13 Ib7ddoec

Speakerphone Conference

confidential. And so this paragraph, I adjusted it to provide --

THE COURT: Sorry. Ms. McCawley, you've got to speak

half as fast. MS. McCAWLEY: I'm so sorry. THE COURT: We will never get a record here. MS. McCAWLEY: I'm sorry. So with this paragraph, I proposed to change the

language such that only the person that is actually producing

the confidential information, the one who owns that

confidential information, would be able to designate it as

confidential to protect from having a party wholescale designate things as confidential that weren't that individual's confidential information.

THE COURT: And your example is a nonparty gets deposed and then the defendant says everything in that nonparty's deposition should be confidential?

MS. McCAWLEY: Exactly.

THE COURT: Well, in part I would imagine that that would be -- we would have some limitations based on the revised paragraph 3 that will be more specific about what can and cannot be designated as confidential. And so, you know, I don't think testimony that, you know, one party believes is intended to annoy or to harass is an appropriate designation. But if that nonparty were speaking about something more narrow

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

No

WO

US

on

Oy

~

oO

WO

oO

be

No

Ww

oS

Oo

Oy

~

oO

WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 14 of 29 14 Ib7ddoec

Speakerphone Conference

and more particularized, how would you feel about that designation?

MS. McCAWLEY: Well, it can certainly be, for example, if that individual provided testimony with respect to something

in this matter that they did not want to mark as confidential

or, for example, produce photographs of the defendants with

them that they did not want marked as confidential, under the

old version of this protective order, the defendants could come

in and mark it as confidential and the nonparty would have no

control over that situation.

So this is meant to -- in other words, the party who is providing the information, whether it be by subpoena or whether it be a party to this agreement, has the ability to mark their information confidential if they want it to be protected in that manner, but no other person can do that other than the person who is producing the information.

THE COURT: OK. Ms. Menninger, that's certainly the most traditional way to proceed. What's the reason for not doing it that way?

(Pause)

MR. LINK: Your Honor, this Scott Link. Can I be heard on this for just a minute?

THE COURT: sure.

MS. MENNINGER: I'm having some trouble hearing everyone.

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

I)

(C8)

US

Oo

Oy

~

oO

Ne}

oO

be

No

(C8)

os

Oo

Oy

~

oO

WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 15 of 29 15 Ib7ddoec

Speakerphone Conference

MR. LINK: OK. This is Scott Link, your Honor. May I be heard on this --

THE COURT: Yes.

MR. LINK: -—- topic for one moment?

THE COURT: Yes.

MR. LINK: So, first, I think it's unfair to expect a

third-party witness, some of whom are not represented by

lawyers, to have to make the decision about confidentiality. Second, when a third-party witness comes in and gives

testimony that relates to potential, for example, sexual

activity with one of the defendants, then that defendant should

have the right to designate that information as confidential.

It's one thing to say that the defendant -- you know, that whoever the third-party witness is doesn't have an interest in

maintain confidentiality, but that's really only half of the

equation, because the person that they're testifying about may

in fact want to keep that particular sexual relationship or

consensual relationship from being in The New York Times, like

you said.

So I think it just creates more of an issue for us if

we leave it to an unrepresented person to control whether the

confidentiality applies, particularly where you're going to

give us a definition now in paragraph 3 that should be more

limiting in what can be designated. And, frankly, if a party

goes too far in the designation, then we'll be back before you,

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

i)

Ww

ws

Oo

Oy

~

0O

WO

Kn oO

bh be

Nh

Ww

fh ws

Oo

a Oy

I

Kn ©O

Kn WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 16 of 29 16 Ib7ddoec

Speakerphone Conference

and obviously you can do whatever you think is appropriate from

the attorney's fees and costs and enforce the protective order

that you've signed off on.

Thank you, your Honor.

THE COURT: Thank you.

MS. McCAWLEY: Your Honor, this is Sigrid McCawley again.

Just to address Mr. Link's comments in a reply from the plaintiff, exactly what he is saying is what we're trying to prevent, having to come back to you multiple times over something like this. So the party who is, for example, a nonparty witness who brings to a deposition photographs showing that witness with the defendant, those are that nonparty's photographs and they should be able to mark them as confidential and (unintelligible). So choose or not mark them as confidential, it is their material to designate. It shouldn't be that a party to the litigation can then coax that in confidentiality through this order. In other words, it creates more layers of dispute relating to confidentiality than is necessary.

THE COURT: I guess one question I have is, you know, what confidence do you have that a lay witness who comes to

testify will have any understanding of the concept of

confidentiality and any rights that he or she might be able to

invoke to keep from the press his or her sexual activity? That

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

be

NO

Ww

ws

Oo

Oy

~

0O

WO

Kn o)

hh be

Nh

Ww

fh wd

Ol

a Oy

~l

Kn ©O

Kn WO

20

21

22

23

24

25

Case 1:17-cv-00616-JGK-SN Document 175 Filed 11/28/18 Page 17 of 29 def Ib7ddoec

Speakerphone Conference

is question number one. And question number two is, you know, with respect to the comment made by Mr. Link, which is that, you know, someone

else may be implicated in a way that they wish not to be

disclosed. You know, obviously, the nonparty is free to talk

about their own experiences in whatever way they wish outside

of the context of the litigation, but in the context of this

litigation, if they are called upon to disclose information

that might be I'll say confidential to a party, why shouldn't that party be able to protect his or her interests?

MS. McCAWLEY: This is Sigrid McCawley again.

So to address the first point, in this litigation thus far, we've only had obviously a few handful of depositions, and all of the nonparty deponents are represented by counsel. So

this is not -- it is a hypothetical that we are posing, of

course, but it is not a circumstance that has arisen in this case with respect to any nonparty witnesses.

On this second point of -- you made the point that they are free to disclose. Obviously, a nonparty is in control of their information if they want to disclose it, and that is why courts typically have the standard that everything is open and public. So we're going against that standard by folding in

a Situation where a party could designate some other

individual's information as being confidential. So, it cuts

against what the standard is for federal court disclosures

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

H

NO

Ww

ws

Oo