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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 10 of 21 In New York, there are two exceptions to this general rule: 1) where the non-party witness is an alter ego of a party; and 2) when a party controls the non-party material witness and could force them to testify. Andrew Carothers, M.D., P.C. v. Ins. Companies Represented by Bruno, Gerbino & Soriano, LLP, 26 Misc. 3d 448, 461-62, 888 N.Y.S.2d 372 (Civ. Ct. 2009): While it is true that an adverse inference may not generally be drawn against a party when a nonparty asserts the privilege (see Access Capital v DeCicco, 302 AD2d 48, 52 [1st Dept 2002]; State of New York v Markowitz, 273 AD2d 637, 646 [3d Dept 2000], /v denied 95 NY2d 770 [2000]), the courts in this state have recognized several exceptions to this rule . . .. One of these exceptions deals with the situation where a corporate employee, who is the alter ego of his or her corporate employer, refuses to testify on Fifth Amendment grounds. The second of these exceptions deals with the situation when the nonparty who asserts his or her Fifth Amendment privilege and refuses to testify is a material witness in a particular party's control. In Califano v City of New York (212 AD2d 146 [1st Dept 1995]), the Court held that “[t]he inference to be charged in a civil case by a [nonparty] witness's invocation of the privilege against self-incrimination is ‘akin to that arising when a party fails or refuses to produce a material witness who is within his control’” Id. at 461-462. Neither of these two exceptions is applicable in this instance. Ms. Maxwell is not a corporation and she has no corporate employees. Mr. Epstein is not, and has never been, an employee or even an agent of Ms. Maxwell. In fact, it was Mr. Epstein who employed Ms. Maxwell in the late 90’s and early 2000’s; it was he who had employment control over her, not the opposite. In this circumstance, the purpose of the exception is not served because the non- testifying employer does not have the ability to bind his subservient former employee, nor is there any basis to believe that an employer would act to protect his employee because he has nothing (such as his job) to lose.