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Case 1:15-cv-07433-LAP Document 1331-36 Filed 01/05/24 Page 5 of 10 determining whether to draw any adverse inferences it is permitted to consider by seeing Mr. Epstein assert the privilege in live testimony in front of it, rather than by seeing him do the same thing in his video deposition. Adverse inference issues are often submitted to the jury based on deposition testimony rather than on live invocation of the privilege in front of the jury, see, e.g., SEC v. Jasper, 678 F.3d 1116, 1125 (9th Cir. 2012); RAD, 808 F.2d at 272; Data Gen. Corp. v. Grumman Sys. Support Corp., 825 F. Supp. 340, 352 (D. Mass. 1993); East Coast Novelty Co. v. City of New York, 842 F. Supp. 117, 121(S.D.N.Y. 1994); Penfield v. Venuti, 589 F. Supp. 250, 255-56 (D.Conn. 1984), and, should this Court determine that the jury may consider whether an adverse inference is appropriate with respect to any particular questions asked of Mr. Epstein, then the use of Mr. Epstein’s video deposition testimony is the procedure which should be followed in this case. While requiring Mr. Epstein to invoke his Fifth Amendment privilege in front of the jury will yield not even a marginal benefit to either party, there are substantial countervailing concerns that weigh heavily against requiring Mr. Epstein to appear at trial. First, Mr. Epstein’s personal appearance would likely generate substantial media attention which would threaten to undermine the parties’ rights to a fair trial, a result which neither plaintiff or defendant could legitimately welcome. Second, requiring Mr. Epstein’s personal appearance would impose an undue and unnecessary burden on him. Mr. Epstein is not a resident of New York; on the contrary, as both parties know, he resides in the Virgin Islands.’ Because Mr. Epstein’s assertion of his Fifth Amendment privilege at > Mr. Epstein’s residence in the Virgin Islands provides an additional reason why Mr. Epstein should not be required to appear at the trial of this case. Mr. Epstein spends a majority of his time in the Virgin Islands, which is his legal residence. He does not, therefore, reside within 100 miles of the place of this trial. See generally Fed. R. Civ. P. 45(c)(1)(A).