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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 12 of 21 particular case are considered by the trial court, the overarching concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.” Jd. at 124. As under New York law, the nature of the relationship (Mr. Epstein employing Ms. Maxwell rather than vice versa) and the lack of her control over him weigh against the trustworthiness of an adverse inference. Likewise, Mr. Epstein has no stake in the outcome of this litigation, financial or otherwise. Nor has he participated in this litigation in anyway. Rather, he completely refused to participate, moving to quash his deposition, pleading the fifth and refusing to produce documents or provide testimony. While the LiButti Court was considering an adverse inference during a bench trial, it was cognizant that, after conducting the relevance evaluation, courts would also need to assess the issue of undue prejudice under Fed. R. Evid. 403, an issue not presented there because of the nature of a bench trial. /d. at 124. As discussed above, there is insurmountable unfair prejudice caused by presenting Plaintiff's counsel’s “testimony” (in the form of questions) and Mr. Epstein’s invocation, even if no adverse evidence instruction is given. Plaintiffs entire point is to confuse and mislead the jury to believe that the answers to each of the self-serving questions would be yes, even though there is no proof on the question. This is in essence simply allowing Plaintiff's counsel to testify to their own theories, not actual facts. If anything, an adverse inference against Plaintiff and in favor of Ms. Maxwell based on Mr. Epstein’s invocation of the Fifth Amendment is the only proper adverse inference. Plaintiff previously sued Mr. Epstein for the conduct about which he refused to answer in his deposition. As a result of that lawsuit Plaintiff received a $500,000 settlement payment from Mr. Epstein, a matter about which Mr. Epstein refused to testify. See Menninger Decl. Ex. C 283:5-284:17 10