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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 4 of 21 (4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of live testimony in open court—to permit the deposition to be used. Fed. R. Evid. 804(b)(1) echoes this requirement, providing an exception to the hearsay rule for use of deposition testimony only when a witness is unavailable. A. Jeffrey Epstein and Rinaldo Rizzo Are Not Unavailable Plaintiff has made deposition designation based on the alleged “understanding that [witnesses] are not able to appear live to provide trial testimony.” With respect to Jeffrey Epstein and Rinaldo Rizzo, she offered no basis for her claim that these two witnesses are not able to appear live to provide testimony. Both witnesses reside within 100 miles of the courthouse at which the trial is to be held, and she has neither articulated nor argued any other basis for a finding of “unavailability.” Indeed, no such argument could be maintained.! “[D]eposition testimony is only a substitute, not to be resorted to if the witness can appear in person.” Banks v. Yokemick, 144 F. Supp. 2d 272, 288 (S.D.N.Y. 2001). Plaintiff's own investigator has stated in his affidavit regarding attempted service of the deposition subpoena on Mr. Epstein that he has three known addresses in New York, including his permanent residence, all of which are within 100 miles of the courthouse. See ECF No. 161, Ex. 4. The fact that Mr. ' The remaining fact witnesses for whom Plaintiff has designated deposition testimony reside outside the 100-mile radius, and therefore may be unavailable under 32(a)(4). Defendant reserves all rights to object to use of any deposition testimony should the availability of such witness change. 2