Giuffre_Maxwell_Batch7_p00022.png

Case 1:15-cv-07433-LAP Document 1332-1 Filed 01/08/24 Page 21 of 42 Plaintiff asks this Court to infer the existence of an undisclosed “email” account for Ms. Maxwell in the 2000-2002 timeframe based on witness accounts that Jeffrey Epstein had a “messaging system” on a private server. Of course, there is a big difference between having a private email account (gmail, aol, yahoo, etc.) and communicating through a private messaging system on an employer’s sever, as described by Mr. Alessi (“It was a server. I think it was --the office would have, like, a message system between him, the houses, the employees, his friends. They would write a message on the computer. There was no email at that time.”).’ To the extent there was a private messaging system used by Mr. Epstein’s household employees maintained on a private server by Mr. Epstein, information from that system is not available to Ms. Maxwell. Ms. Maxwell has not been employed by Mr. Epstein for over 10 years and has not had any access to Mr. Epstein’s server through Citrix or otherwise since at least the end of her employment with him. “Whether a party subject to a document request can be compelled to comply depends on two preliminary questions: (1) assuming the requested documents exist, does the party have possession, custody or control over them, and (2) if the party has such possession, custody or control, can the party be compelled to conduct a reasonable search for and, if found, to produce the documents.” Gross v. Lunduski, 304 F.R.D. 136, 142 (W.D.N.Y. 2014). Ms. Maxwell is not in the possession, custody or control of the server or any information it may contain. “Where * It appears this is what was also being described by Mr. Banasiak in the deposition from another case, a full copy of which has never been produced in this litigation. Indeed, Mr. Banasiak has not been identified as a person with relevant or discoverable information in any of the last three of Plaintiff's Rule 26 Disclosures. In the cited testimony, Mr. Banasiak appears to have discussed accessing a private messaging system maintained on Mr. Epstein’s private server using Citrix, a program that allows such access to authorized users. Because Plaintiff has failed to disclose the transcript being quoted, Ms. Maxwell cannot fully decipher the obviously edited testimony quoted in the Motion, does not know what timeframe Mr. Banasiak was referring to regarding the computers or using Citrix, and cannot respond to the claims made regarding the nature of any inference that could be drawn from Mr. Banasiak’s selected testimony. The entire argument and reference to the transcript must be ignored and stricken based on Plaintiff's failure to produce in discovery the transcript she relies on.