Giuffre_Maxwell_Batch6_p00165.png

Case 1:15-cv-07433-LAP Document 1331-13 Filed 01/05/24 Page 7 of 22 As a result of these efforts to evade service, Ms. Giuffre filed a motion for leave to proceed by way of alternative service with regard to Epstein. Before the Court could rule on the motion regarding Epstein, Epstein’s legal counsel agreed to have Epstein appear for his deposition — in Florida. Epstein has every motivation to evade service because the questions he would be asked at trial would involve his sexual abuse of minors. And given Epstein’s success at evading sixteen earlier efforts to serve him, the Court should permit Ms. Giuffre to use Epstein’s deposition at the upcoming trial — if, for any reason, he does not appear live. Under Fed. R. Civ. P. 32(a)(4)(D), a party may use a deposition of a witness when “the party offering the deposition could not procure the witness’s attendance by subpoena.” A showing that the witness has evaded attempts to be served with a subpoena suffices to make the showing of unavailability. See In re Ashley, 903 F.2d 599, 603 (9th Cir. 1990). Furthermore, Defendant will suffer no prejudice if Epstein appears by way of deposition rather than through live testimony. As discussed at greater length in Part II below, Epstein is being called for purposes of securing an adverse inference from his invocation of his Fifth Amendment right against self-incrimination. In these circumstances, live testimony will not provide any significantly different testimony from that which has already been secured by deposition. Notably, Ms. Giuffre has already attempted to serve a trial subpoena upon Epstein in New York. On February 8, 2017, an investigator from Alpha Group Investigations went to 9 East 71° Street, New York, New York, a mansion where Epstein had previously resided (and sexually abused Ms. Giuffre). See McCawley Dec. at Exhibit 2, Affidavit of Anna Intriago. Even if Epstein is somehow deemed to be “available,” the Court retains discretion to allow the use of his deposition, where “ton motion and notice” the Court finds “that exceptional