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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 11 of 21 The second exception is equally inapplicable. Ms. Maxwell has no control of Mr. Epstein and no ability to command his testimony.” This fact is made obvious by virtue of Mr. Epstein’s refusal to respond to the questions posed at the deposition by Ms. Maxwell’s counsel, requiring her to file a motion to compel his testimony. ECF No. 449. Thus, under controlling New York law, use of Mr. Epstein’s testimony and the concomitant adverse inference based on that testimony is prohibited. Federal law requires the same result. The Second Circuit first addressed the question of whether an adverse inference against a party to a civil action is permitted based on a non-party’s invocation of the Fifth Amendment in LiButti v. United States, 107 F.3d 110, 124 (2d Cir. 1997). In that case, during a bench trial the question arose whether the trial court should have drawn an adverse inference against the Plaintiff based on her father’s invocation of the Fifth Amendment Privilege. The Court held that the “issue of the admissibility of a non-party’s invocation of the Fifth Amendment privilege against self-incrimination in the course of civil litigation and the concomitant drawing of adverse inferences appropriately center on the circumstances of the case.” Id. at 123. The Court then set forth a list of four non-exclusive factors that should guide a court in determination of the relevance of any testimony: 1) the nature of the relevant relationships; 2) the degree of control of the party over the non-party witness; 3) the compatibility of the interests of the party and non-party witness in the outcome of the litigation; 4) the role of the non-party witness in the litigation. Jd. at 123-124. The Court made clear that the key consideration is trustworthiness: “[w]hether these or other circumstances unique to a > To the extent Plaintiff claims control based on the existence of a joint defense agreement, courts have specifically ruled that such an agreement alone does not establish privity or control for purposes of the exceptions to the prohibition on giving an adverse inference instruction based on invocation by a non-party. Omni Food Sales v. Boan, No. 06 CIV. 119 (PAC), 2007 WL 2435163, at *4 (S.D.N.Y. Aug. 24, 2007) (discussing collateral estoppel stating joint defense agreement alone “however, it would prove only a litigation alliance; it alone would not create privity.”).