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Case 1:15-cv-07433-LAP Document 1320-18 Filed 01/03/24 Page 31 of 40 emphasis: Defendant attempts to argue that the trial in this case will somehow be unfair if she does not receive access to confidential attorney-client communications that Ms. Giuffre had with her lawyers earlier. Mot. to Compel at 20-21. But regardless of what may or may not have been at issue in the Dershowitz case, confidential communications will not be at issue here. For example, Defendant writes that “[i]t would be prejudicial for [Ms. Giuffre] to be able to support her claim in this case that she is not a liar using her attorney’s testimony ....” Jd. at21. To be clear, Ms. Giuffre has no intention of calling, for example, Cassell and Edwards to testify at trial in an attempt to support her claims. Thus, this will not be a case where it will be “misleading to the court or any jury to hear testimony from [Ms. Giuffre’s] counsel about all the factual basis, work product and thought process on which they relied in making the allegations in the Joinder Motion,” Mot. to Compel at 22, for the simple reason that that Ms. Giuffre’s counsel will not be witnesses in the case. Nor will Ms. Giuffre be presenting a “state of mind” defense that might require a more extensive inquiry into attorney-client communications. See In re Cty. of Erie, 546 F.3d 222, 229 (2d Cir. 2008) (noting absence of good faith or state of mind issues as a reason for not finding “at issue” waiver of privilege); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 62 A.D.3d 581, 582, 880 N.Y.S.2d 617, 618-20 (N.Y. App. Div. 2009) (finding no waiver where plaintiff disavowed any intention to use confidential attorney-client communications; relevance alone insufficient to put privileged materials “at issue” because, “if that were the case, a privilege would have little effect”). To be sure, at trial Ms. Giuffre will present factual testimony supporting her version of events — just as, no doubt, Defendant will try to present testimony supporting her version. But such testimony (from both sides) does not create any waiver of attorney-client privilege. Instead, such testimony is simply the presentation of competing facts, from which the jury can decide 24