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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 8 of 21 Because of his invocation of his Fifth Amendment right to remain silent, there actually is no deposition testimony to designate. Each designation reflects a leading question by Plaintiffs counsel (which is improper on direct examination, FRE 611(c)), followed by Mr. Epstein’s one word response — “Fifth.” Of course, Plaintiffs counsel’s questions are not testimony. Mr. Epstein’s responses have no “tendency to make a fact more or less probable than it would be without the evidence”; the answer to the questions is a non-answer, and the answer could be yes, no or something entirely different. Moreover, with respect to many of the unanswered questions, they do not relate to any “fact [] of consequence in determining the action.” Fed. R. Evid 401. By way of one limited example, Plaintiff designated the following leading question and non-answer: “Q. In June 2008, in open court, you pled guilty to two Florida State felonies, correct? A. Fifth.” The investigation and ultimate plea deal reached by Mr. Epstein bears absolutely no relevance to this case. As the investigating detective, Joseph Recarey testified, Ms. Maxwell was not the subject of the investigation in 2005 and 2006, was not identified in the probable cause affidavit, and was not a subject of the grand jury proceedings against Mr. Epstein. Menninger Decl. Ex. B, 203:4-25; 210:24-212:6. Moreover, Plaintiff voluntarily departed this country three years prior to the investigation, was not identified as a witness in the investigation nor was she interviewed by the investigators. Id. 259:17-25. Simply put, the investigation of Mr. Epstein, which resulted in his indictment and plea deal, have nothing to do with either the Plaintiff or the Defendant in this action, and have no bearing on any fact that is of consequence in this case. This one limited example demonstrates the completely irrelevant inquiry put to Mr. Epstein. As such, the designated testimony fails the relevance standards of Fed. R. Evid. 401, is not admissible under Fed. R. Evid. 402, and certainly is more prejudicial than probative under Fed. R. Evid. 403.