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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 9 of 21 Likewise, the designated invocation testimony of Mr. Epstein violates the requirements of Fed. R. Evid. 403, as any probative value of the testimony is outweighed by unfair prejudice, confusion of the issues, will tend to mislead the jury, cause undue delay, waste time, and present cumulative evidence. To permit this testimony, which in fact reflects only Plaintiff's attorney presenting prejudicial and unproven statements in the form of unanswered questions, serves only one purpose which is to confuse the jury by claiming that the failure to answer the questions must mean the answer is harmful to both Mr. Epstein and to Ms. Maxwell. In truth, and as Ms. Maxwell has stated in her pending motion to compel, Mr. Epstein’s truthful answers to the questions posed by both parties would in fact vindicate Ms. Maxwell, proving that Ms. Maxwell’s press statement were substantially true. Even allowing the reading of the designated testimony will, without question, confuse the jury by leading them to believe that there is some evidentiary value to the questions, causing significant and incurable prejudice to Ms. Maxwell. It is apparent that Plaintiff intends to request that the Court instruct the jury that it may draw an adverse inference against Ms. Maxwell based on Jeffrey Epstein, a non-party witness’s, invocation of the Fifth Amendment. Such an adverse inference is impermissible in this case. Under Fed. R. Evid. 501 and this Court’s prior rulings, New York State law governs the privilege law in this case. See ECF No. 135. Under New York law, the general rule is that a non-party’s invocation of the Fifth Amendment privilege cannot be used as to create an adverse inference against a party. Access Capital, Inc. v. DeCicco, 302 A.D.2d 48, 52 (2002) (“the privilege being personal, the consequences are limited to the witness that invokes it. Thus, where the privilege is asserted by a nonparty witness, no adverse inference may be drawn’’) (citing State v. Markowitz, 273 A.D.2d 637, 646 (2000)).