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Case 1:15-cv-07433-LAP Document 1331-36 Filed 01/05/24 Page 2 of 10 in response to questioning, and his assertion of the privilege at trial will be no less valid than it was at his deposition. Under the circumstances of this case, this Court should not require Mr. Epstein to physically appear to assert his Fifth Amendment privilege in front of the jury. While it may be true that there is no blanket prohibition in all civil cases against calling a witness who will assert his Fifth Amendment privilege, see, e.g., Brinks, Inc. v. City of New York, 717 F.2d 700, 708-10 (2d Cir. 1983); see also LiButti v. United States, 107 F.3d 110 (2d Cir. 1997), neither is it the rule that it should be permitted in all such cases. Instead, the propriety of requiring a witness to appear at trial to invoke his Fifth Amendment rights in front of a jury must be evaluated on a case-by-case basis. “The trial judge maintains discretion under Fed. R. Evid. 403 to control the way in which non-party claims of privilege reach the jury.” RAD Servs., Inc. v. Aetna Cas. & Sur. Co., 808 F.2d 271, 272 (3d Cir. 1986), quoted in LiButti, 107 F.3d at 122. See Evans v. City of Chicago, 513 F.3d 735, 740-41 (7th Cir. 2008)(finding no abuse of discretion in district court’s refusal to permit plaintiff to “maximize and dramatize the moment” by calling witness to assert Fifth Amendment privilege in front of jury); see also Brinks, 717 F.2d at 715 (Winter, J., dissenting)(decrying the “invitation to sharp practice” inherent in “permitting the systematic interrogation of witnesses on direct examination by counsel who knows they will assert the privilege against self-incrimination’”). Here, Mr. Epstein submitted to deposition under oath and recorded on video. At that deposition, the parties had an unlimited opportunity to examine him at length, asking approximately 600 separate questions, to all of which Mr. Epstein asserted his Fifth Amendment privilege. No different result would obtain were Mr. Epstein forced to take the stand and assert his Fifth Amendment privilege in front of the jury. Plaintiff seeks to call Mr. Epstein as a witness in the hope