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Case 1:15-cv-07433-LAP Document 1320-10 Filed 01/03/24 Page 25 of 28 take the Fifth is, at a minimum, premature.° The witness may, for example, answer some questions and not others. And, in any event, even if they take the Fifth when asked about Defendant’s sexual abuse of minors, those invocations will quite likely be admissible against the Defendant at trial. The Second Circuit has squarely held that a witness’ invocation of Fifth Amendment rights can in proper circumstances be used against a party. The Second Circuit’s seminal decision is LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997), which upheld the drawing of adverse inferences based on a non-party’s invocation of a Fifth Amendment right to remain silent. The Second Circuit instructed that, the circumstances of given case, rather than status of particular nonparty witness, determines whether nonparty witness' invocation of privilege against self-incrimination is admissible in course of civil litigation. Jd. atl122-23. The Circuit also held that, in determining whether nonparty witness’ invocation of privilege against self-incrimination in course of civil litigation and drawing of adverse inferences is admissible, court may consider the following nonexclusive factors: (1) nature of witness! relationship with and loyalty to party; (2) degree of control which party has vested in witness in regard to key facts and subject matter of litigation; (3) whether witness is pragmatically noncaptioned party in interest and whether assertion of privilege advances interests of witness and party in outcome of litigation; and (4) whether witness was key figure in litigation and played controlling role in respect to its underlying aspects. Id. at 124-25. Clearly, many of these factors are going to weigh heavily in favor of drawing an adverse inference against Defendant. For example, Jeffrey Epstein is a “pragmatically noncaptioned ° The Court should be aware that these are also the three witnesses who have been attempted to evade service of process. 21