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Case 1:15-cv-07433-LAP Document 1331-36 Filed 01/05/24 Page 3 of 10 not of eliciting substantive testimony but of obtaining adverse inferences against defendant Maxwell based on Mr. Epstein’s assertion of the Fifth Amendment privilege with respect to various questions. Whether or not such adverse inferences are appropriate under the circumstances of this case is currently being litigated between the parties and will be decided by this Court. As explained below, requiring Mr. Epstein to appear before a jury to answer the very same questions as to which he has already asserted his Fifth Amendment privilege during sworn video-recorded testimony will add nothing to the ultimate issue of whether any adverse inference should be permitted, nor would it make any potential adverse inference any more or less valid. The Second Circuit has identified four factors which are relevant to the determination as to whether courts should permit juries to draw adverse inferences against a party based on a witness’ invocation of his Fifth Amendment privilege: 1. The Nature of the Relevant Relationships: While no particular relationship governs, the nature of the relationship will invariably be the most significant circumstance. It should be examined, however, from the perspective of a non-party witness’ loyalty to the plaintiff or defendant, as the case may be. The closer the bond, whether by reason of blood, friendship or business, the less likely the non-party witness would be to render testimony in order to damage the relationship. 2. The Degree of Control of the Party Over the Non-Party Witness: The degree of control which the party has vested in the non-party witness in regard to the key facts and general subject matter of the litigation will likely inform the trial court whether the assertion of the privilege should be viewed as akin to testimony approaching admissibility under Fed. R. Evid. 801(d)(2), and may accordingly be viewed, as in Brink's, as a vicarious admission. 3. The Compatibility of the Interests of the Party and Non-Party Witness in the Outcome of the Litigation: The trial court should evaluate whether the non-party witness is pragmatically a noncaptioned party in interest and whether the assertion of the privilege advances the interests of both the non-party witness and the affected party in the outcome of the litigation. 4. The Role of the Non-Party Witness in the Litigation: Whether the non-party witness was a key figure in the litigation and played a controlling role in respect to any of its underlying aspects also logically merits consideration by the trial court.