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Case 1:15-cv-07433-LAP Document 1331-13 Filed 01/05/24 Page 10 of 22 concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth.” Id. at 124 (emphasis added). A number of subsequent decisions from the Southern District of New York have allowed evidence of a third party’s invocations to be used against a party in litigation. See, e.g., Amusement Indus., Inc. v. Stern, No. O7CIVIIS86LAKGWG, 2016 WL 4249965, at *8 (S.D.N.Y. Aug. 11, 2016) (drawing negative inference against defendant based on key witness’ invocation of privilege); S.E.C. v. Durante, No. 01 CIV. 9056 DAB AJP, 2013 WL 6800226, at *11 (S.D.N.Y. Dec. 19, 2013) (drawing negative inference when Fifth Amendment invoked by a “prominent figure in the case”), report and recommendation adopted, No. 01 CIV. 9056 DAB, 2014 WL 5041843 (S.D.N.Y. Sept. 25, 2014), affd, 641 F. App'x 73 (2d Cir. 2016); John Paul Mitchell Sys. v. Quality King Distributors, Inc., 106 F. Supp. 2d 462, 471 (S.D.N.Y. 2000) (drawing inference from invocation and noting alignment of interests). All of the LiButti factors tip in favor of allowing Ms. Giuffre to call Epstein. Ms. Giuffre has analyzed this issue at length in her contemporaneously filed Motion to Present Testimony from Jeffrey Epstein for Purposes of Obtaining an Adverse Inference. To avoid burdening the Court with duplicative briefing, Ms. Giuffre specifically adopts and incorporates by reference all of the briefing and arguments in that motion in the response here. For all of the reasons given in that motion, Ms. Giuffre should be allowed to call Epstein. Accordingly, Defendant’s motion to exclude Epstein should be denied. To be clear, as part of calling Epstein, Ms. Giuffre has no objection to the jury being given appropriate cautionary instructions about the adverse inferences. Those instructions should make clear that the jury is not required to draw any inference at all from Epstein’s invocations, and that it should only draw inferences if it finds that there is an independent foundation for the