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Case 1:15-cv-07433-LAP Document 1331-36 Filed 01/05/24 Page 8 of 10 Opposition to Motion to Present Epstein Testimony at 15. Moreover, presenting Mr. Epstein’s deposition testimony in which he asserted his Fifth Amendment privilege in response to questioning regarding plaintiff's allegations would completely alleviate this concern, as the jury would know from that testimony exactly “what Epstein . . . has to say about all this.” Motion to Present Epstein Testimony at 14. There is no indication in Cerro Gordo Charity v. Fireman's Fund Am. Life Ins. Co., 819 F.2d 1471 (8th Cir. 1987), on which plaintiff relies, id. at 14-15, that deposition testimony of the witness was available in lieu of personal appearance before the jury to assert the Fifth Amendment privilege. The Court, stressing that the determination must be made on a case-by-case basis, id. at 1481, concluded that there was no error in permitting the witness to be called even though he had indicated that he would assert the privilege because [h]earing Richards invoke the privilege informed the jury why the parties with the burden of proof, i.e., the insurance companies, resorted to less direct and more circumstantial evidence than Richards' own account of what had occurred. . . . Otherwise, the jury might have inferred that the companies did not call Richards to testify because his testimony would have damaged their case. Id. at 1482. Even a limited use of Mr. Epstein’s deposition testimony would serve these purposes equally well, as the jury would be left in no doubt as to why the plaintiff had not called Mr. Epstein as a witness. Finally, defendant Maxwell has argued in her Opposition to Motion to Present Epstein Testimony that to the extent any questions posed to Mr. Epstein in his deposition might have been relevant to the issues in this case, presenting those questions and Mr. Epstein’s responsive Fifth Amendment invocation to the jury would be substantially more prejudicial than probative: As to any questions regarding Ms. Maxwell or Plaintiff, the questions are severely more prejudicial than probative, designed only to confuse and mislead the jury into making a determination on an improper basis. The LiButti court and subsequent decisions have been 8