EFTA00092688.pdf

Case 1:19-cv-03377-LAP Document 101-3 Filed 12,0/19 Page 1 of 28 EXHIBIT C EFTA00092688 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 2 of 28 JC29GIUC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff, v. ALAN DERSHOWITZ , Defendant. Before: x 19 CV 3377 (LAP) New York, N.Y. December 2, 2019 9:06 a.m. HON. LORETTA A. PRESKA District Judge APPEARANCES COOPER & KIRK Attorneys for Plaintiff BY: CHARLES J. COOPER MICHAEL W. KIRK NICOLE J. MOSS HALEY N. PROCTOR TODD & WELD BY: HOWARD COOPER CHRISTIAN KIELY -and- AIDALA BERTUNA & KAMINS BY: IMRAN H. ANSARI HON. BARRY KAMINS Attorneys for Defendant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092689 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 3 of 28 JC29GIUC 2 4 5 6 7 THE COURT: ready? MR. C. COOPER: THE COURT: And is defense MR. H. COOPER: THE COURT: against Dershowitz. Is plaintiff your Honor. your Honor. Good morning. All right, counsel. I was Yes, Good morning. ready? Yes, Good morning. 8 a little concerned when I read the list of people whose 9 deposition you wish to take. Seems to be a pretty long list 10 here. 11 Also, I had questions about some of the topics you 12 wanted to cover in discovery and questions about why we need 13 expert discovery here. 14 I'm looking at page three of the joint report under 15 anticipated subjects of discovery. Dershowitz's sexual abuse 16 of and involvement in the human trafficking of Giuffre and 17 other women. 18 I mean it seems the issue here is much narrower than 19 that, isn't it? 20 I mean we're looking as to whether Dershowitz and 21 Giuffre had relations and we have the additional allegations in 22 the complaint with respect to supposed extortion schemes by 23 Giuffre and her lawyers. Isn't that what we're here to talk 24 about? 25 Sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092690 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 4 of 28 JC29GIUC 4 5 6 7 MR. C. COOPER: Yes, your Honor. That is true. We do believe that the allegations of the complaint comprehend an involvement by Mr. Dershowitz that would satisfy this description but I'm quite certain that our discovery into the basic allegations, defamation allegations in the complaint will cover everything we need to cover. THE COURT: I'm not so sure what that means. 8 So my question specifically on A. is that let's just 9 say you ask about whether Dershowitz had relations with other 10 women in Epstein's house. 11 Do we care? 12 MR. C. COOPER: Yes, your Honor. 13 THE COURT: Why? But if not 14 MR. C. COOPER: Well, your Honor, if Mr. Dershowitz 15 had relations with others in Mr. Epstein's house that would 16 tend, we believe, to strongly corroborate the claims that 17 Ms. is making with respect to her relations with 18 Mr. Dershowitz in Mr. Epstein's residences and other places. 19 THE COURT: It's kind of like propensity evidence. 20 Let me do it a different way. 21 Yes, sir. Go ahead. 22 MR. C. COOPER: Only that Mr. Dershowitz's denial, of 23 course, is quite sweeping and 24 THE COURT: Well I thought it went to his allegation 25 that he had never met or had relations with plaintiff. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092691 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 5 of 28 JC29GIUC 4 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. C. COOPER: That's certainly one of his claims. He also claims he never had sex with anyone other than his wife. That's a central piece of his argument. THE COURT: But we're not going to do that. Let me ask it a different way, may I? And my object here is to cut down on the time and expense of discovery. MR. C. COOPER: We welcome that, your Honor. THE COURT: Yes. I think we would all. So does it make sense to put together our documentary discovery. And as we know, we expect that there will be a lot of travel documents that will be produced. So, this is great fun. Mr. Cooper and Mr. Cooper. Mr. Cooper at the back table. MR. H. COOPER: Yes, your Honor. THE COURT: Producing a lot of those documents with respect to your client is going to get us a long way, right? MR. H. COOPER: I think so. THE COURT: And same thing with respect to plaintiff? Right? One of the items in here is travel documents and employment records. MR. C. COOPER: Yes, your Honor. THE COURT: There's some issue with respect to how old plaintiff was when she was employed. Does it make sense to put those documents together first, and I would think pretty quickly, and see where the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092692 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 6 of 28 JC29GIUC areas of overlap are? 4 5 6 MR. C. COOPER: We would certainly contemplate receiving -- asking for those and receiving them in our initial round of document requests, your Honor. THE COURT: I would think so. Then what? What do you want to do next? After that, 7 to try to limit this? 8 For example, B. State and Federal Investigations of 9 Epstein and Maxwell. That sounds hard. 10 Dershowitz's decades-long friendship with Epstein. 11 Dershowitz's involvement in defending Epstein and 12 negotiating a nonprosecution agreement. 13 communications with law enforcement 14 regarding her time with Epstein. 15 Compensation paid to Giuffre for her story. 16 All of this sounds pretty far afield from the main 17 allegations. 18 MR. C. COOPER: Your Honor, we think these items that 19 we've listed that you've mentioned at least from our 20 anticipated subjects go to the question of Mr. Dershowitz's 21 credibility. I suspect that Mr. Cooper behind me will say the 22 same thing about the subjects that he'd like to explore with 23 in his discovery of our client. This is a -- this case at the 24 end of the day, your Honor, is a -- at least with respect to 25 the central issue is a he-said/she-said. So credibility is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092693 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 7 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 extremely important. THE COURT: Totally agreed. But there has to be some reasonable limit on what we're going to do here. MR. H. COOPER: Your Honor, let me. THE COURT: Sir. MR. H. COOPER: Thank you. Let me say here that I'm not sure that phase document discovery will necessarily get us where I think you want us to go. I fully agree and I believe we raised during our 26(f) conference that it would be extraordinary if not preposterous to attack a statement by Professor Dershowitz that he's only had sex with his wife for the last many years by allowing plaintiff to embark on discovery to see if he's had sex with anybody else. And I don't believe that that is appropriate. I don't believe that's within the bound of permissible discovery. THE COURT: Or propriety. MR. H. COOPER: Having said that, your Honor, on the flip side, and we've demonstrated this in a lot of ways in our counterclaim which is a speaking counterclaim. THE COURT: No kidding. MR. H. COOPER: Ms. has, we believe, made a number of false allegations against numerous prominent men. Now, discovery from those men is a brief deposition. It is something that, as we've talked to plaintiff's counsel about, I think is an hour or two for both sides. And the point SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092694 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 8 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there would simply be -- THE COURT: But if you're going down that line I don't see why plaintiff doesn't get -- able to go down her line. But both of them seem very far afield. There are other ways to attack people's credibility in this case. MR. H. COOPER: Well one of the fundamental ways to attack the credibility of a false complainant of a sexual assault allegation is by proof that they have made prior and other false allegations of sexual assault and (Counsel and defendant confer) And with regard to the core defamations that are at issue both ways, your Honor, Ms. is suing Professor Dershowitz for essentially calling her a liar on those topics THE COURT: I'll well aware of that, counsel. MR. H. COOPER: I know you are. So to me, your Honor and we have pretty much ready to go a document discovery request that is pointed and my guess is -- THE COURT: And massive, no doubt. MR. H. COOPER: No. Not massive, your Honor. Very much tied to the allegations against Professor Dershowitz and those that he is making against the plaintiff. And I do think it would make sense for us to exchange the document requests, see what areas of agreement that we have. I do note that we're in the unusual position that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092695 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 9 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there is apparently voluminous discovery from the Giuffre v. Maxwell case that at some point may be available to us which may narrow some of the task here, for both sides. So getting the documents together from each side in terms of areas of agreement, getting the documents that are currently under seal subject to your Honor's process in the v. Maxwell case I think would get us pretty far down the road in terms of seeing relevant document discovery and identifying areas of disagreement. MR. C. COOPER: If I may, your Honor. THE COURT: Sir. MR. C. COOPER: First of all, we have no intention of trying to discover into whether Mr. Dershowitz has ever had sex generally with anyone other than his wife. But it is relevant and we believe goes to the heart of Mr. Dershowitz's credibility whether he has had sex in connection with Epstein's operation, particularly given the fact that apart from Ms. another young woman has alleged under oath that she too had sex with Mr. Dershowitz in connection with that operation. And the other point I want to emphasize here is Ms. Giuffre has not brought a defamation case against Mr. Dershowitz because he called her a liar. He said that she, along with her lawyers and a cadre of what would have to be at least a dozen people, all of them officers of the court, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092696 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 10 of 28 JC29GIUC 9 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor, engaged in a extraordinary effort to completely concoct out of whole cloth this claim against Mr. Dershowitz in order to use him as some kind of an example in their effort to blackmail and extort his words. THE COURT: I understand that, although. MR. C. COOPER: So that's not just lying, you know. THE COURT: Well lying was part of the defamation claim for sure. MR. C. COOPER: Of course. THE COURT: OK. MR. C. COOPER: Your Honor, this case probably would never have been brought had that been the only thing he said. THE COURT: OK. And but your point is what? That the latter is the more serious claim? I'm not sure why you're telling me this. MR. C. COOPER: Well because counsel has suggested to you this case is a simple case over whether or not Mr. Dershowitz said she was a liar. It's not. It's who -- THE COURT: I said that when I came out here. It has to do with whether they, in fact, had relations and who was lying or is lying and, secondly, the conspiracy-to-extort theory. MR. C. COOPER: Yes, your Honor, you did. And, again, I'm just attempting to bring this back from counsel's comment to what the real allegations are and the real issues before the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092697 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 11 of 28 JC29GIUC IC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court are. MR. H. COOPER: Your Honor, if I may? THE COURT: Sir. MR. H. COOPER: We're talking about the scope of discovery here. THE COURT: We are. MR. H. COOPER: We're talking about it in context of an ever-evolving set of facts. Just this weekend -- and we've supplemented our 26(f) statement, your Honor, Mr. Patrick Kessler was brought to our attention and, to put it mildly, the allegations made concerning Mr. Boies and his firm and other counsel we think are going to be directly relevant to proving the truth of what Professor Dershowitz said. Now in order to do that we need to depose these folks. THE COURT: Why are you telling me this? MR. H. COOPER: Because, your Honor THE COURT: You can't depose all the people on the list. Now this guy Kessler, if, as you say, has photographs and videos that's closer to being a -- closer to probative evidence. MR. H. COOPER: Well but, your Honor, if the New York Times account is to be credited -- and at the moment I can't tell whether it should be or not other than what I read -- Mr. Kessler brought to the Times' attention a scheme that is z, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092698 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 12 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 very close match to the scheme alleged here with regard to Leslie Wexner. THE COURT: And your point is what, counsel? MR. H. COOPER: And my point is that we will need to take depositions on that topic, your Honor, in order to prove the veracity, the truth defense that has been raised both with regard to Ms. Giuffre's allegations and Professor Dershowitz's own affirmative defamation claim. THE COURT: I hear you. But we are not taking all these people. Answer another question. Why do we think we need expert discovery here? Expert on what? MR. H. COOPER: So the only thing that I can think of, your Honor, is on any electronics that are produced. There is an issue in this case for example about -- and I'm just picking one that's widely known -- the photograph of Prince Andrew and whether that's a fake or not. And if we need to get an expert -- THE COURT: All right. Any other reason we need an expert here? MR. H. COOPER: Also, your Honor, there are claims for psychological damages in this case. Ms. Giuffre -- I don't want to get into what we know about any history here in open court, but there will be a need potentially to have her evaluated from a psych perspective on the issue going to her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092699 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 13 of 28 JC29GIUC 12 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 damages. THE COURT: OK. Well both sides allege psychological damages, right? MR. H. COOPER: That is true, your Honor. THE COURT: Do not spend any money on experts until we talk again. Is there any other reason to have an expert? MR. C. COOPER: Your Honor, I would only cite one and that is the effect of the events on a young woman described in the complaint. THE COURT: Psychological. MR. C. COOPER: Yes, your Honor. Trauma and the effects on somebody's emotional state. THE COURT: Don't spend money on experts until we talk again. MR. C. COOPER: Very well, your Honor. THE COURT: What is the status of the recording, please? Is it still with Stroz? MR. C. COOPER: That's our understanding, your Honor. They will not release it absent your action. THE COURT: Right. MR. C. COOPER: We have requested the Court to provide that authorization to send the microcassette to a different firm. THE COURT: Do we have agreement on such a firm? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092700 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 14 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. H. COOPER: Not yet, your Honor. THE COURT: Any reason we haven't? MR. H. COOPER: I haven't had a chance THE COURT: Agree. You haven't had a chance? All right. MR. H. COOPER: I haven't discussed it again with Mr. Cooper yet. THE COURT: Agree on a firm. There is no reason it shouldn't be sent. Maybe you can even agree on what you want done. I assume what you want done is efforts at enhancing what sounds like difficult-to-hear material. MR. C. COOPER: That's one of the things, your Honor. At least from our side. We'd like to have expert analysis in terms of whether it was a tape of the entire conversation and whether the tape has in any way, according to forensic analysis, been altered. THE COURT: All right. MR. C. COOPER: But apart from those basics. MR. H. COOPER: Your Honor happy to try to agree on a protocol. THE COURT: So let's do that and get it done quickly. Are there other recordings other than that one? MR. H. COOPER: Not that I'm aware of, your Honor, but that is something that we will be asking for in discovery. THE COURT: I think you were the guys who had the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092701 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 15 of 28 JC29GIUC 1; 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recordings. MR. H. COOPER: Well I don't know -- THE COURT: Do you have anymore recordings? (Counsel and defendant confer) MR. H. COOPER: Not that I'm aware of, your Honor. MR. C. COOPER: Your Honor, counsel has mentioned this New York Times article from yesterday. The article itself contains excerpts from what purports to be, and the article describes, as a recording between Mr. Dershowitz and this Patrick Kessler character. MR. H. COOPER: That's true, your Honor. Happy to produce it. THE COURT: Do you have those? MR. H. COOPER: I have only read about this this weekend, your Honor. I assume my client does. So we will produce that in the course of discovery. Absolutely. Just as we will be pursuing, as I said, the entirety of the episode between Mr. Kessler and the lawyers. MR. C. COOPER: And as the Court obviously has anticipated we are going to be asking for and seeking any and all recordings that Mr. Dershowitz may have made of any and all telephone conversations or otherwise that bear on -- THE COURT: Absolutely. So let's get these -- MR. H. COOPER: -- your order goes both ways. Because we're going to be looking for the same thing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092702 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 16 of 28 JC29GIUC THE COURT: Absolutely. Does plaintiff have any recordings that you know of, counsel? 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. C. COOPER: I'm aware of none. THE COURT: Let's get those produced and get them to analysis so you people can get your transcripts and get whatever other analysis you want. MR. C. COOPER: Thank you. THE COURT: I assume you can agree on it. And let's get going here. MR. C. COOPER: Yes, your Honor. THE COURT: What else? How are we going to keep this under control, friends? MR. H. COOPER: Your Honor, while Mr. Cooper and I haven't dealt with each other previously, just by virtue of his wonderful last name I'm sure that we'll be able to -- THE COURT: You're in trouble now, counsel. MR. H. COOPER: We will be able to work a lot of this out and I would suggest respectfully, your Honor, that discovery proceed in the ordinary course: We exchange written discovery. We identify our areas of disagreement, try to narrow them, and then deal with whatever needs to be dealt with through normal motion practice. If I'm wrong, then I believe we will be capable jointly of informing the Court that we have problems. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092703 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 17 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then, perhaps, your Honor, we can -- THE COURT: Two things. Number one, this is not going to go on forever and ever. Number two, we are not doing all of this stuff. This is not going to be the book for my dear friends the reporters to write on the whole matter. We need to narrow it down and get to the issues quickly. My suggestion for you is that perhaps I have don't know if you've discussed your initial disclosures yet, but your initial disclosures comprise your respective client's travel schedules, travel documents, employment materials and the like, so that you can -- MR. H. COOPER: Can we add to that, your Honor? I'm sorry to interrupt. But we had tried to get Ms. Giuffre's, I'm told, multihundred-page deposition transcript produced to us before we had our 26(f) conference. THE COURT: That's not a travel document. MR. H. COOPER: I understand that. But it would help us narrow discovery knowing what it is that she's testified to already. We did -- we put this together without the benefit of that. THE COURT: Right. MR. H. COOPER: And obviously to the extent that she's testified on certain subject matters or answered questions about who witnesses -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092704 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 18 of 28 JC29GIUC 17 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Why don't you two talk to each other about MR. H. COOPER: Happy to. THE COURT: We're not going to disclose the transcript publicly without further order. But if you people agree -- counsel, have you seen the deposition? MR. C. COOPER: My colleagues have, your Honor. THE COURT: So figure out whether that's going to help you people or not and let me know. MR. C. COOPER: Very well. THE COURT: But as I'm saying I would -- I think I would suggest that your initial disclosure be all of the travel documents and whatnot so that you can at least figure out what dates you're looking at. Does that make any sense? MR. C. COOPER: Your Honor, it does. THE COURT: What else do you want for initial disclosures? Sir. MR. KIRK: Actually, your Honor, could I go back to one thing. THE COURT: Yes, please. MR. KIRK: Just to be clear. We were under the impression that we could not produce the Maxwell deposition due to the Maxwell protective order. Obviously if your Honor gives SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092705 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 19 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 us leave to do so. THE COURT: Right. MR. KIRK: We'd be happy to do so. THE COURT: But, again, it is between the two of you. It is for use in this case only and it is not to be disclosed. MR. KIRK: Understood. MR. C. COOPER: Understood. THE COURT: All right. MR. C. COOPER: Until such time presumably as the Court makes a decision on that question. THE COURT: As always. What else? What else for initial disclosure, friends? MR. H. COOPER: I think that covers it from our perspective, your Honor. MR. C. COOPER: As I stand here before you, your Honor, I can't think of other items. THE COURT: Two weeks for that. MR. C. COOPER: We've agreed on the 16th which is two weeks. THE COURT: That's even better. All right. And then I know you've got dates in here about when you're going to serve your document requests but pretty soon after that let me know whether you agree or you don't agree and whether you want to come in and chat. What is -- does plaintiff know yet about whether she's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092706 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 20 of 28 JC29GIUC 19 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to amend? MR. C. COOPER: Yes, your Honor. We are going to amend the complaint. THE COURT: To add what kinds of claims, please? MR. C. COOPER: Your Honor, we're going to add - first of all, we're going to add additional allegations with respect to defamatory statements of the same ilk made by Mr. Dershowitz since the time the complaint was filed including most recently in a book that he's published on this subject exclusively. THE COURT: May I ask you if they are defamatory statements of the same ilk, why do we really need to amend other than to get it out in public? Get those statements out in public even though they're out in public? MR. C. COOPER: They're in a book, your Honor. THE COURT: I know. So what do we need to amend for that for? MR. C. COOPER: These are fresh defamatory statements adding to the -- quite squarely within our understanding from the Court's decision intended to and reaching new audiences. THE COURT: OK. But you already have that -- you already have that. You won on that one. I'm not sure tell me what else you want to amend to do. MR. C. COOPER: Your Honor, we also intend to amend to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092707 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 21 of 28 JC29GIUC 20 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 offer state tort claims that have been revived, previously time-barred when this complaint was filed, but have been revived by the New York Child Victims Act. THE COURT: All right. Comment on that, Mr. Cooper at the back table. MR. H. COOPER: We'll be moving to dismiss if they move to amend. THE COURT: What are you going to move to dismiss on the basis? MR. H. COOPER: On the basis of futility. I would point out only -- THE COURT: Why is the revival of the state tort claims under the Child Victims Act a futile amendment? MR. H. COOPER: Because I think there's irrefutable proof that she wasn't a child and doesn't qualify which is one of the reasons we ask -- THE COURT: That's not a motion to dismiss -- I mean unless you're going to make a summary judgment motion and put in the initial discovery we were just talking about. MR. H. COOPER: Thank you, your Honor. Exactly. If we get the records with regard to her employment at Mar-a-Lago that we've sought we believe that it will be irrefutable that she cannot avail herself of the state statute and the revived statute of limitations or the extended statute of limitations. And that's futility. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092708 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20119 Page 22 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: But that's going to be a summary judgment motion or a motion on the pleadings or something. It's not a failure-to-state motion. MR. H. COOPER: Futility of the amendment, your Honor, technically speaking. And I think that they have those documents so I suspect counsel will have to examine whether they have a good faith basis -- THE COURT: I am sure counsel will. What else, sir? MR. C. COOPER: Your Honor, we are planning to file an amendment adding a claim under the Electronic Communications Privacy Act, the Wiretap Act, relating to the tape that -- it was the subject for our previous discussion, the microcassette and the tape that -- THE COURT: Does plaintiff have standing to bring that? I thought Mr. Boies was taped. MR. C. COOPER: That's true. And your Honor is asking a serious question. We believe that she does and we look forward to the opportunity to convince the Court that she does. But that's serious question. THE COURT: All right. We know what you're going to say. MR. H. COOPER: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092709 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 23 of 28 JC29GIUC 22 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fall. THE COURT: What else? MR. C. COOPER: That's it. THE COURT: All right. MR. H. COOPER: One comment, your Honor. THE COURT: Sir. MR. H. COOPER: We've asked for a trial date next THE COURT: I know but you're not having any expert discovery so you're going to save a few months there. MR. H. COOPER: So we've asked for a relatively aggressive discovery schedule to be completed through mid-August and it's our hope that this matter is not going to get delayed by filing superfluous motions to amend, etc. and we can get to it. THE COURT: All right. Then don't file a motion under the CVA until it's time. File no motion before its time. There is no point in doing it now. MR. H. COOPER: Couldn't agree with you more, your Honor. Thank you. THE COURT: All right. So let me just ask this. There is no additional discovery that will be caused by the addition of those state court claims, right? MR. C. COOPER: I think those state court claims are going to be comprehended within the discovery that's contemplated. Yes, your Honor. So the answer is -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092710 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 24 of 28 JC29GIUC 23 4 5 6 7 THE COURT: The state court claims aren't going to cause any discovery we would not otherwise be undertaking. MR. C. COOPER: I believe that is true. THE COURT: So think about it in filing superfluous motions. There will be a time, and delaying discovery to do this is not wise. MR. H. COOPER: I agree. 8 THE COURT: What else? 9 MR. C. COOPER: Nothing. 10 MR. H. COOPER: Your Honor, the only other thing on 11 our list is -- and it may be premature to address it, again, 12 because I don't have a transcript from the Maxwell case, but 13 given the array of alleged defamations which apparently there's 14 going to be more, I don't know how we can do Ms. 15 deposition in one day. 16 THE COURT: Nobody is saying that. Talk -- have you 17 discussed it with counsel? 18 MR. H. COOPER: If that we can talk about it, 19 terrific. We were told that it was going to be limited. Their 20 view was that it was going to be limited to a day. 21 THE COURT: Right. All right. 22 What are you going to do about attorney work product 23 and attorney-client communications here? 24 MR. H. COOPER: Well, your Honor, we will be serving 25 the Boies firm and Mr. Boies individually with a subpoena. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092711 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 25 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will seek privileged materials in light of the crime fraud exception and U.S. v. Zolin at least in the First Circuit. And I think inevitably, your Honor, that will lead to a -- THE COURT: Motion practice. MR. H. COOPER: Yes. And perhaps an in camera review by the Court with regard to those documents. THE COURT: Have you discussed this with counsel? MR. H. COOPER: We have told counsel that we intend THE COURT: That's different from discussing. Have you had a discussion about it? MR. H. COOPER: No. MR. C. COOPER: We have not. THE COURT: You people need to talk about this before you start throwing paper at each other. MR. H. COOPER: Absolutely, your Honor. THE COURT: All right. Anything to add on that, Mr. Cooper at the front table? MR. C. COOPER: Only this, your Honor. It is our expectation to seek discovery into Mr. Dershowitz's attorney-client relationship with Mr. Epstein. THE COURT: And talk to me why that is relevant. And I mentioned earlier one of the items on your agenda was Mr. Dershowitz's representation of Mr. Epstein in connection with the nonpros agreement in Florida. Why do we care about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092712 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 26 of 28 JC29GIUC that? MR. C. COOPER: Your Mr. Dershowitz is, as Ms. Honor, we believe that if alleges, was involved with 4 Mr. Epstein in the activities that have been alleged, that his 5 communications with Mr. Epstein and the motivations that 6 Mr. Dershowitz had to negotiate the plea deal that has become 7 so controversial will be relevant and important. 8 THE COURT: The question is whether there's 9 have the ability to narrow that. 10 Based on popular press more than the papers here, I 11 think I recall some allegation that folks acting in concert 12 with Mr. Epstein were immunized or otherwise received a benefit 13 in that agreement. 14 MR. C. COOPER: That's exactly right, your Honor. 15 THE COURT: OK. 16 MR. C. COOPER: That's at the core of the point. 17 THE COURT: So we want to narrow it to that, right. 18 MR. C. COOPER: That is the core of it, your Honor. 19 We can narrow it to that. 20 THE COURT: Have we discussed that with Mr. Cooper at 21 the back table? 22 MR. C. COOPER: No, your Honor. 23 THE COURT: We need to have a big conversation about 24 all this attorney-client stuff, my friends, so that we don't 25 spend a lot of time moving on it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092713 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 27 of 28 JC29GIUC 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What else? All right. I would very much like to stay in contact. I know Washington is far but the Accela is easy. MR. C. COOPER: Yes, it is. THE COURT: But let's do this quickly. I want you to get the initial disclosure out and figure out where we are. Even if we can just have a chat about what that shows with respect to dates and whatnot. Dates and ages, right? MR. C. COOPER: Yes, your Honor. THE COURT: Could you report back right after the first of the year on that? MR. C. COOPER: We certainly can. MR. H. COOPER: Absolutely. THE COURT: Wonderful. What else do you want to do today, friends? MR. C. COOPER: I would like to do one thing before we conclude. THE COURT: Sir. MR. C. COOPER: I would like to introduce to the Court my colleagues at counsel table with me. THE COURT: Yes, please. MR. C. COOPER: May I? This is Michael Kirk, my partner. MR. KIRK: Good morning, your Honor. MR. C. COOPER: This is Nicole Moss. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092714 Case 1:19-cv-03377-LAP Document 101-3 Filed 12/20/19 Page 28 of 28 JC29GIUC 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Good morning, ma'am. MR. C. COOPER: And Haley Proctor. We are mindful that we are here with the Court's permission. We are grateful for that and we're honored to be here. THE COURT: Thank you. MR. H. COOPER: Having had the pleasure of being here before your Honor I suppose no introduction of our team is necessary. THE COURT: Not at that table. MR. H. COOPER: I would say I'm proud to have them with me. THE COURT: I saw Mr. Aidala sneak in, in the back. He thought he was below the radar but he wasn't. MR. AIDALA: Sorry, your Honor. THE COURT: Anything else, friends? MR. H. COOPER: Nothing for the plaintiff. THE COURT: Thank you, friends. Good morning. (Adjourned) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00092715