Case 1:15-cv-07433-RWS Document1 Filed 09/21/15 Page 1 of 12
United States District Court Southern District of New York
VIRGINIA L. GIUFFRE,
Plaintiff, CASE NO: V. GHISLAINE MAXWELL, Defendant. i COMPLAINT
Boies Schiller & Flexner LLP 575 Lexington Avenue
New York, NY 10022
(212) 446-2300
Case 1:15-cv-07433-RWS Document1 Filed 09/21/15 Page 2 of 12
Plaintiff, VIRGINIA L. GIUFFRE, formerly known as Virginia Roberts (“Giuffre”), for her Complaint against Defendant, GHISLAINE MAXWELL (“Maxwell”), avers upon personal knowledge as to her own acts and status and otherwise upon information and belief: NATURE OF THE ACTION
1. This suit arises out of Defendant Maxwell’s defamatory statements against Plaintiff Giuffre. As described below, Giuffre was a victim of sexual trafficking and abuse while she was a minor child. Defendant Maxwell not only facilitated that sexual abuse but, most recently, wrongfully subjected Giuffre to public ridicule, contempt and disgrace by, among other things, calling Giuffre a liar in published statements with the malicious intent of discrediting and further damaging Giuffre worldwide.
JURISDICTION AND VENUE
2. This is an action for damages in an amount in excess of the minimum jurisdictional limits of this Court.
a: This Court has jurisdiction over this dispute pursuant to 28 U.S.C. §1332 (diversity jurisdiction) as Giuffre and Maxwell are citizens of different states and the amount in controversy exceeds seventy-five thousand ($75,000), exclusive of interest and costs.
4. This Court has personal jurisdiction over Maxwell. Maxwell resides in New York City, and this action arose, and defamatory statements were made, within the Southern District of New York.
5: Venue is proper in this Court as the cause of action arose within the jurisdiction of
this Court.
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PARTIES 6. Plaintiff Giuffre is an individual who is a citizen of the State of Colorado. 7. Defendant Maxwell, who is domiciled in the Southern District of New York, is not a citizen of the state of Colorado. FACTUAL ALLEGATIONS 8. Virginia Giuffre became a victim of sex trafficking and repeated sexual abuse
after being recruited by Ghislaine Maxwell and Jeffrey Epstein when Giuffre was under the age of eighteen.
9. Between 1999 and 2002, with the assistance and participation of Maxwell, Epstein sexually abused Giuffre at numerous locations including his mansions in West Palm Beach, Florida, and in this District. Between 2001 and 2007, with the assistance of numerous co-conspirators, Epstein abused more than thirty (30) minor underage girls, a fact confirmed by state and federal law enforcement.
10. As part of their sex trafficking efforts, Epstein and Maxwell intimidated Giuffre into remaining silent about what had happened to her.
11. In September 2007, Epstein entered into a Non-Prosecution Agreement (“NPA”) that barred his prosecution for numerous federal sex crimes in the Southern District of Florida.
12, In the NPA, the United States additionally agreed that it would not institute any federal criminal charges against any potential co-conspirators of Epstein.
13. As a co-conspirator of Epstein, Maxwell was consequently granted immunity in the Southern District of Florida through the NPA.
14. Epstein ultimately pled guilty to procuring a minor for prostitution, and is now a
registered sex offender.
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1: Rather than confer with the victims about the NPA, the U.S. Attorney’s Office and Epstein agreed to a “confidentiality” provision in the Agreement barring its disclosure to anyone—including Epstein’s victims. As a consequence, the victims were not told about the NPA.
16. On July 7, 2008, a young woman identified as Jane Doe No. 1, one of Jeffrey Epstein’s victims (other than Giuffre), filed a petition to enforce her rights under the Crime Victims’ Rights Act (““CVRA”), 18 U.S.C. ¥ 3771, alleging that the Government failed to provide her the rights promised in the CVRA with regard to the plea arrangement with Epstein. The litigation remains ongoing.
i. On or about May 4, 2009, Virginia Giuffre—identified then as Jane Doe No. 102—filed a complaint against Jeffrey Epstein in the United States District Court for the Southern District of Florida. The complaint included allegations made by Giuffre that pertained to Maxwell.
18. In pertinent part, the Jane Doe No. 102 complaint described in detail how Maxwell recruited Giuffre (who was then a minor girl) to become a victim of sex trafficking by introducing Giuffre to Jeffrey Epstein. With the assistance of Maxwell, Epstein was able to sexually abuse Giuffre for years until Giuffre eventually escaped.
19. The Jane Doe No. 102 complaint contained the first public allegations made on behalf of Giuffre regarding Maxwell.
20. As civil litigation against Epstein moved forward on behalf of Giuffre and many other similarly-situated victims, Maxwell was served with a subpoena for deposition. Her testimony was sought concerning her personal knowledge and role in Epstein’s abuse of Giuffre
and others.
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21. To avoid her deposition, Maxwell claimed that her mother fell deathly ill and that consequently she was leaving the United States for London with no plans of ever returning. In fact, however, within weeks of using that excuse to avoid testifying, Maxwell had returned to New York.
22. In 2011, two FBI agents located Giuffre in Australia—where she had been hiding from Epstein and Maxwell for several years—and arranged to meet with her at the U.S. Consulate in Sidney. Giuffre provided truthful and accurate information to the FBI about Epstein and Maxwell’s sexual abuse.
23: Ultimately, as a mother and one of Epstein’s many victims, Giuffre believed that she should speak out about her sexual abuse experiences in hopes of helping others who had also suffered from sexual trafficking and abuse.
24. On December 23, 2014, Giuffre incorporated an organization called Victims Refuse Silence, Inc., a Florida not-for-profit corporation.
ao, Giuffre intended Victims Refuse Silence to change and improve the fight against sexual abuse and human trafficking. The goal of her organization was, and continues to be, to help survivors surmount the shame, silence, and intimidation typically experienced by victims of sexual abuse. Giuffre has now dedicated her professional life to helping victims of sex trafficking.
26. On December 30, 2014, Giuffre moved to join the on-going litigation previously filed by Jane Doe 1 in the Southern District of Florida challenging Epstein’s non-prosecution
agreement by filing her own joinder motion.
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2d. Giuffre’s motion described Maxwell’s role as one of the main women who Epstein used to procure under-aged girls for sexual activities and a primary co-conspirator and participant in his sexual abuse and sex trafficking scheme.
28. In January, 2015, Maxwell undertook a concerted and malicious campaign to discredit Giuffre and to so damage her reputation that Giuffre’s factual reporting of what had happened to her would not be credited.
29. As part of Maxwell’s campaign she directed her agent, Ross Gow, to attack Giuffre’s honesty and truthfulness and to accuse Giuffre of lying.
30. On or about January 3, 2015, speaking through her authorized agent, Maxwell issued an additional false statement to the media and public designed to maliciously discredit
Giuffre. That statement contained the following deliberate falsehoods:
(a) That Giuffre’s sworn allegations “against Ghislaine Maxwell are untrue.”
(b) That the allegations have been “shown to be untrue.”
(c) That Giuffre’s “claims are obvious lies.”
31. Maxwell’s January 3, 2015, statement incorporated by reference “Ghislaine Maxwell’s original response to the lies and defamatory claims remains the same,” an earlier statement that had falsely described Giuffre’s factual assertions as “entirely false” and “entirely untrue.”
32. Maxwell made the same false and defamatory statements as set forth above, in the Southern District of New York and elsewhere in a deliberate effort to maliciously discredit Giuffre and silence her efforts to expose sex crimes committed around the world by Maxwell,
Epstein, and other powerful persons. Maxwell did so with the purpose and effect of having
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others repeat such false and defamatory statements and thereby further damaged Giuffre’s reputation.
33. | Maxwell made her statements to discredit Giuffre in close consultation with Epstein. Maxwell made her statements knowing full well they were false.
34. Maxwell made her statements maliciously as part of an effort to conceal sex trafficking crimes committed around the world by Maxwell, Epstein and other powerful persons.
a5: Maxwell intended her false and defamatory statements set out above to be broadcast around the world and to intimidate and silence Giuffre from making further efforts to expose sex crimes committed by Maxwell, Epstein, and other powerful persons.
36. Maxwell intended her false statements to be specific statements of fact, including a statement that she had not recruited an underage Giuffre for Epstein’s abuse. Maxwell’s false statements were broadcast around the world and were reasonably understood by those who heard them to be specific factual claims by Maxwell that she had not helped Epstein recruit or sexually abuse Giuffre and that Giuffre was a liar.
OT; On or about January 4, 2015, Maxwell continued her campaign to falsely and maliciously discredit Giuffre. When a reporter on a Manhattan street asked Maxwell about Giuffre’s allegations against Maxwell, she responded by saying: “I am referring to the statement that we made.” The New York Daily News published a video of this response by Maxwell indicating that she made her false statements on East 65" Street in Manhattan, New York, within
the Southern District of New York.
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COUNT I DEFAMATION
1. Plaintiff Giuffre re-alleges paragraphs 1 - 37 as if the same were fully set forth herein. Maxwell made her false and defamatory statements deliberately and maliciously with the intent to intimidate, discredit and defame Giuffre.
2. In January 2015, and thereafter, Maxwell intentionally and maliciously released to the press her false statements about Giuffre in an attempt to destroy Giuffre’s reputation and cause her to lose all credibility in her efforts to help victims of sex trafficking.
a Maxwell additionally released to the press her false statements with knowledge that her words would dilute, discredit and neutralize Giuffre’s public and private messages to sexual abuse victims and ultimately prevent Giuffre from effectively providing assistance and advocacy on behalf of other victims of sex trafficking, or to expose her abusers.
4, Using her role as a powerful figure with powerful friends, Maxwell’s statements were published internationally for the malicious purpose of further damaging a sexual abuse and sexual trafficking victim; to destroy Giuffre’s reputation and credibility; to cause the world to disbelieve Giuffre; and to destroy Giuffre’s efforts to use her experience to help others suffering as sex trafficking victims.
a Maxwell, personally and through her authorized agent, Ross Gow, intentionally and maliciously made false and damaging statements of fact concerning Giuffre, as detailed above, in the Southern District of New York and elsewhere.
6. The false statements made by Gow were all made by him as Maxwell’s
authorized agent and were made with direct and actual authority from Maxwell as the principal.
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a The false statements that Maxwell made personally, and through her authorized agent Gow, not only called Giuffre’s truthfulness and integrity into question, but also exposed Giuffre to public hatred, contempt, ridicule, and disgrace.
8. Maxwell made her false statements knowing full well that they were completely false. Accordingly, she made her statements with actual and deliberate malice, the highest degree of awareness of falsity.
2. Maxwell’s false statements constitute libel, as she knew that they were going to be transmitted in writing, widely disseminated on the internet and in print. Maxwell intended her false statements to be published by newspaper and other media outlets internationally, and they were, in fact, published globally, including within the Southern District of New York.
10. Maxwell’s false statements constitute libel per se inasmuch as they exposed Giuffre to public contempt, ridicule, aversion, and disgrace, and induced an evil opinion of her in the minds of right-thinking persons.
11. Maxwell’s false statements also constitute libel per se inasmuch as they tended to injure Giuffre in her professional capacity as the president of a non-profit corporation designed to help victims of sex trafficking, and inasmuch as they destroyed her credibility and reputation among members of the community that seeks her help and that she seeks to serve.
12, Maxwell’s false statements directly stated and also implied that in speaking out against sex trafficking Giuffre acted with fraud, dishonesty, and unfitness for the task. Maxwell’s false statements directly and indirectly indicate that Giuffre lied about being recruited by Maxwell and sexually abused by Epstein and Maxwell. Maxwell’s false statements were reasonably understood by many persons who read her statements as conveying that specific
intention and meaning.
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12: Maxwell’s false statements were reasonably understood by many persons who read those statements as making specific factual claims that Giuffre was lying about specific facts.
14. Maxwell specifically directed her false statements at Giuffre’s true public description of factual events, and many persons who read Maxwell’s statements reasonably understood that those statements referred directly to Giuffre’s account of her life as a young teenager with Maxwell and Epstein.
15: Maxwell intended her false statements to be widely published and disseminated on television, through newspapers, by word of mouth and on the internet. As intended by Maxwell, her statements were published and disseminated around the world.
16. Maxwell coordinated her false statements with other media efforts made by Epstein and other powerful persons acting as Epstein’s representatives and surrogates. Maxwell made and coordinated her statements in the Southern District of New York and elsewhere with the specific intent to amplify the defamatory effect those statements would have on Giuffre’s reputation and credibility.
UT Maxwell made her false statements both directly and through agents who, with her general and specific authorization, adopted, distributed, and published the false statements on Maxwell’s behalf. In addition, Maxwell and her authorized agents made false statements in reckless disregard of their truth or falsity and with malicious intent to destroy Giuffre’s reputation and credibility; to prevent her from further disseminating her life story; and to cause persons hearing or reading Giuffre’s descriptions of truthful facts to disbelieve her entirely. Maxwell made her false statements wantonly and with the specific intent to maliciously damage
Giuffre’s good name and reputation in a way that would destroy her efforts to administer her
10
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non-profit foundation, or share her life story, and thereby help others who have suffered from sexual abuse.
18. As a result of Maxwell’s campaign to spread false, discrediting and defamatory statements about Giuffre, Giuffre suffered substantial damages in an amount to be proven at trial.
19. Maxwell’s false statements have caused, and continue to cause, Giuffre economic damage, psychological pain and suffering, mental anguish and emotional distress, and other direct and consequential damages and losses.
20. Maxwell’s campaign to spread her false statements internationally was unusual and particularly egregious conduct. Maxwell sexually abused Giuffre and helped Epstein to sexually abuse Giuffre, and then, in order to avoid having these crimes discovered, Maxwell wantonly and maliciously set out to falsely accuse, defame, and discredit Giuffre. In so doing, Maxwell’s efforts constituted a public wrong by deterring, damaging, and setting back Giuffre’s efforts to help victims of sex trafficking. Accordingly, this is a case in which exemplary and punitive damages are appropriate.
21. Punitive and exemplary damages are necessary in this case to deter Maxwell and others from wantonly and maliciously using a campaign of lies to discredit Giuffre and other victims of sex trafficking.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Giuffre respectfully requests judgment against Defendant Maxwell, awarding compensatory, consequential, exemplary, and punitive damages in an amount to be determined at trial, but in excess of the $75,000 jurisdictional requirement; costs of
suit; attorneys’ fees; and such other and further relief as the Court may deem just and proper.
11
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JURY DEMAND Plaintiff hereby demands a trial by jury on all causes of action asserted within this pleading.
Dated September 21, 2015.
/s/ David Boies
David Boies
Boies Schiller & Flexner LLP 333 Main Street
Armonk, NY 10504
/s/ Sigrid McCawley Sigrid McCawley
(Pro Hac Vice Pending)
Boies Schiller & Flexner LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301
(954) 356-0011
/s/ Ellen Brockman
Ellen Brockman
Boies Schiller & Flexner LLP 575 Lexington Ave
New York, New York 10022 (212) 446-2300
12
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Virginia L. Giuffre,
Plaintiff, 15 cv_7433 ) -against- CORRECTED MOTION FOR ADMISSION Ghislaine Maxwell, PRO HAC VICE Defendant.
Pursuant to Rule 1.3 of the Local Rules of the United States Courts for the Southern and Eastern
Districts of New York, 1 Sigrid S. McCawley _, hereby move this Court
for an Order for admission to practice Pro Hae Vice to appear as counsel for
__ Plaintiff, VirginiaL.Giuffre sin the above-captioned action. | am in good standing of the bar(s) of the state(s) of
Florida and there are no pending disciplinary proceedings against
me in any state or federal court.
Dated; September 25, 2015 Respectfully Submitted,
Applicant Signature Applicant's Name:_Sigrid S.McCawley Firm Name: Boies, Schiller & Flexner LLP
Aitirersy _ 40) Res hate Boulevard Bune 1207
City / State / Zip: _ Fort Lauderdale, FL 33301
Telephone / Fax: Tel: (954) 356-0011 / Fax: (954) 356-0022
Case 1:15-cv-07433-RWS Document6 Filed 09/25/15 Page 2 of 2
Supreme Court of Florida Certificate of Good Standing
I JOHN A. TOMASINO, Clerk of the Supreme Court of the State of Florida, do
hereby certify that
SIGRID STONE MCCAWLEY was admitted as an attorney and counselor entitled to practice law in all the Courts of the State of Florida on November 6, 1997, is presently in good
standing, and that the private and professional character of the attorney
appear to be good.
WITNESS my hand and the Seal of the
Supreme Court of Florida at Tallahassee,
¢@, COUR? Ge
"3 aX f SOS ae aN eA (at ra Ae 4 ? TSS | I<: . a Sued (£8 Clerk of the Supreme Court of Floridt, t33X5p>2=* s, “SOF ES
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JS 44C/SONY CIVIL COVER SHEET REV 4/2014 The JS-44 civil cover sheet and the information contained herein neither replace mor supploment the filing and service of pieadings of other papers 2s sequined Sy law, except as provided by loca! rules of court This form, approved by the Judicial Conference of the United States in September 1974, is required for use of the Clerk of Court tor the ourpese of initiating (he civi! docket sheet.
PLAINTIFFS DEFENDANTS Virginia L. Giulfre Ghislaine Maxwell ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER ATTORNEYS {IF KNOWN)
David Boies
Boies Schitler & Flexner LLP
333 Main Street
Armonk, NY 10504
CAUSE OF ACTION(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSS {DO NOT CITE JUR.SDICTIGNAL STATUTES UNLESS CIVERSITY)
This action involves a defamation claim with diversity jurisdiction. 28 U.S.C.1332
Has lhis action case, or proceeding, or cne essentially the same been previously filed in SDNY az ary time? NdZVes Chhidge Previously Assigned
li yes, was this case Vol.[_] Invol. (_] Dismissed. No [—] Yes [[]_ Ifyes. give date _.. & Case No. Is THIS AN INTERNATIONAL ARBITRATION CASE? No [x] Yes LU] {PLACE AN fx iN ONF BOX ONLY) NATURE OF SUIT TORTS ACTIONS UNDER STATUTES CONTRACT PERSONAL INJURY PERSONALINJURY FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES | | 387 HEALTHCARE? 375 FALSE CLAINS {]110 INSURANCE [ ] 319 AIRPLANE PHARMACEUTICAL PERSONAL [ } 625 DRUG RELATED [ 422 APPEAL } {35 STA () +20 MARINE [] SIS AIRPLANE PRODUCT — INJURY/FRODUCT LIABILITY SEIZURE OF PROPERTY 28 USC 15a REAP PORTIONMENT [] 130 MILLER ACT LABILITY | } 355 PERSONAL INJURY "OT USC 881 { ] 423 WITHDRAWAL [| ]41@ ANTITRUST 7 (1140 NEGOTIABLE IN 320 ASSAULT LISEL & PRODUCT LIABILITY 1 J ego OTHER 253 USC 357 [ ] 430 BANKS & BANKING INSTRUMENT SLANDER | ] 386 ASBESTOS PERSONAL 4 | ] 455 COMMERGE 1} 150 RECOVERY OF [ ] 390 FEDERAL INJURY PRODUCT 1] 469 QEPORTATION OVERFAYMENT & EMPLOYERS' LIABILITY PROPERTY RIGHTS f )A70 RACKETEER INFLU- ENFORCEMENT LIABILITY ENCED & CORRUPT OF JUNGMENT [ ] 340 MAR NE PERSONAL PROPERTY { ] 826 COPYR:GI-TS ORGANIZATION ACT {] 1h MEDICARE ACT = |: 1 345 MAR'NE PRODUCT [ ]83¢ PATENT RICO} | | 192 RECOVERY OF LIABILITY [ } 370 OTHER FRALD [ ] 840 TRADEMARK { ]480 CONSUMER CREDIT DEFAULTED [ ]35¢ MOTOR VEHICLE [1374 TRUTH IN LENDING [ ]490 CABLE/SATELLITE TV STUDENT LOANS =| ) 35 MOTOR VEH:CLE (EXCL VETERANS) PRODUCT LIABILITY SOCIAL SECURITY { ] 850 SECURITIES? 14183 RECOVERY OF [ ] 360 OTHER PERSONAL COMMCDITIES! OVERPAYMENT INJURY [| ]380 OTHER PERSONAL LABOR ( ] €61 HIA (1535!) EXCHANGE OF VETERANS [ 1362 PERSONAL INJURY - PROPERTY OAMAGE { ] 862 BLACK LUNG (323; BENEFITS MED MALPRACTICE {| 1365 PROPERTY DAMAGE [ ] 710 FAIR LABOR | ] 8ES DIWC/DIWW (<05(9)) { } 169 STOCKROLDERS PRODUCT LABILITY STANDARDS ACT { 1864 SSID TITLE XVI SUITS: |) 220 LABORIMGAIT 1 ) 84S RS) (405(9)) £ ] 890 OTHER STATUTORY |} 180 OTHER PRISONER PETITIONS RELATIONS ACTIONS CONTRACT [| ) 463 AUIEN Or P4INEE £ ) 740 RAILWAY LABCR ACT [ | 391 AGRICULTURAL ACTS 1) 195 CONTRACT i] 312 MOTIONS TO (731 FAMILY MEDICAL FEDERAL TAX SUITS PROOUCT ACTIONS UNOER STATUTES VACATE SENTENCE (eave AGT (FMLA) LIABILITY 28 USC 2255 [ ]B/0 TAXES (US Plaintttor | ] 893 ENVIRONMENTAL (.] 195. FRANCHISE CIVIL RIGHTS {| ] $39 HABEAS CORPUS [1780 CTHER LABOR betsndant) MATTERS [ ] 835 DEATH PENALTY LITIGATION { ] 871 1RS-THIRD PARTY { ) 895 SRE eG 5 7‘ he din Gomi a piryyre |) $40 MANDAMUS & OTHER 72> EMPL RET nC: 25 USC 7609 INFORMATION AC Eva88 Sore SE RGHIS HM a SECUR'TY ACT {ERISA) } 896 ARBITRATION Yon-Pnsore’) : BEAU PROPERTY niga esTINeGS eee "} 699 ADMINISTRATIVE Mid to bd : = i EW OF [J210 LAND [1442 EMPLOYMENT PRISONER CIVIL RIGHTS Be oe ahene Leceicn CONDEMNATION — [| 443 HOUSING? { } 462 NATURALIZATION eines A { ] 220 FORECLOSURE ACCOMMODATIONS { 1550 CIVIL RIGHTS. APPLICATION |] 885 CONS TITUTIONALITY OF []230 RENT LEASE & { ]445 AMERICANS WITH | J 655 PRISON CONDITION —[ ] 465 OTHER IMMIGRATION STATE STATUTES EJECTMENT O'SABILITES - [ | $69 CIVIL DETAINEE ACTIONS (24 TORTS TO LAND EMPLOYMENT CONDITIONS GF CONFINEMENT ( }245 TORT PRODUCT =|: 448 AMERICANS SMITH LIABILITY DISAENLITIES -OTHER | } 290 ALL CTHER [ ]448 EOUCATICN
REAL PROPERTY
Check if demanded in complaint:
CHECK IF THISISACLASS ACTION Y A peti is ea POLYOL GYM THIS CAS
DEMAND $7.$75,000_ oTHER JUDGE a DOCKET NUMBER
IS RELATED TOA CIVIL CASE NOW PENDING IN S D.N Y ?
mi
1
Check YES only if demanded in coniptaint JURY DEMAND: XJ YES CNO NOTE: You must also submil at tne time of filing the Statement of Relatedness form (Form IH: 32)
Case 1:15-cv-07433-RWS Document 7 Filed 09/25/15 Page 2 of 2 Case 1:15-cv-07433-RWS Document 2 Filed 09/21/15 Page 2 of 2
(PLACE AN x INONE BOX ONLY) ORIGIN Bd 1 orginal Oo Riiiaveditnam [13 Remanded []4 Reinstatedor [(] 5 Transtered trom [16 Multidistiict (CD 7 Appeal to District Proceecing State Court Gri Reopened (Soecify District) Litigation Judge fron 2 Magistrate Judge CJ @. ali parties represented een AaeReei 9
CL] b. atleast one
Party is pro sa. (PLACE AN x iN ONE BOX ONLY) BASIS OF JURISDICTION IF DIVERSITY, INDICATE (J1US PLAINTIFF (2 U.S.DEFENDANT [[] 3 FEDERAL QUESTION (x]4 DIVERSITY CITIZENSHIP BELOW.
(U.S. NOT A PARTY) CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X) in one box for Plaintiff and one d0x for Defendant)
PTF DEF PTF DEF PTF DEF
CITIZEN OF THIS STATE [}1 [di CITIZEN GR SUBJECT OF A Pyare NCORPORATED and PRINCIPALPLACE []5 [J§ FOREIGN COUNTRY OF BUSINESS IN ANOTHER STATE
CITIZEN OF ANOTHER STATE [xJ}2 [J 2 INCORPORATED os PRINCIPAL PLACE = [ ]4[ ]4 FOREIGN NATION (16 il6
OF BUS NESS IN THIS STATE
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES) Virginia L. Giuffre
1270 J Street
Penrose, CO 81240
County of Fremont
DEFENDANT(S) ADDRESS(ES} AND COUNTY(IES} Ghislaine Maxwell
116 East 65th Street
New York, NY 10065
County of New York
DEFENDANT(S) ADDRESS. UNKNOWN REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME. | HAVE BEEN UNABLE, WITH REASONABLE D:iLIGENCE, TO ASCERTAIN
RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS.
Check one: THIS ACTION SHOULD BEASSIGNED TO: — [_] WHITE PLAINS MANHATTAN {DO NOT check either box i this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)
DATE SIGBATURE OB AJTORNEY OF RECORD ne TO PRACT. ce Wy FHIS DISTRICT pe NO Pro tee ding | ) YES (DATE ADMITTED Mo, Yr, }
RECEIPT ¥ Attorney Bar Code #
Magistrate Judge is to be designated by the Clerk of the Court.
Magistrate Judge is so Designated.
Ruby J. Krajick, Clerk of Court by Deputy Clerk, DATED
UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
® CEMMEneGtt Sil FO OMLEAD akfencgscll Bt D AO 440 (Rev. 12/09) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
Southern District of New York
Virginia L. Giuffre
Plaintiff Vv. Civil Action No. 15-cv-7433
Ghislaine Maxwell
ws > YS YS eS aS
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Ghislaine Maxwell 116 East 65th Street New York, New York 10065
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: David Boies
Boies, Schiller & Flexner LLP 333 Main Street Armonk, New York 10504
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.
CLERK OF COURT
Date: 9/217 2015 /S/ D. Gonzalez
Signature of Clerk or Deputy Clerk
Case 1:15-cv-07433-LAP Document 8 Filed 09/25/15 Page 2 of 2 CaGn$el5-bb-6V-493-RV Dofoventent Fildhl66/89/25/1Bageageo? af 2
AO 440 (Rev. 12/09} Summons ina Civil Action (Page 2)
Civil Action No. 15-cv-7433
PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1))
This summons for (name of individual and title, if any) ¢ he sg lane Maxie was received by me on fdate} Ff i 22] ig :
i ; at, personally served the summons on the individual at (place} Tle “fe rer A mee Esse 6 —
Sr NMA, wy / on date) afer[a S @2-b,.05 0
O IJ left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
CT served the summons on fname of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) 5 OF I returned the summons unexecuted because ;or C Other (specify): My fees are $ for travel and $ for services, for a total of $ 0.00
I declare under penalty of perjury that this information is true.
ne afte fe # Mage
Kew £ 23 Hey
Printed name and title
Server’s address
for Pawn Hivsw Ko, Frepmivers VY 739
Additional information regarding attempted service, etc:
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Virginia L. Giuffre,
Plaintiff, 15 ¢v__7433 __( ) -against- ORDER FOR ADMISSION Ghislaine Maxwell, PRO HAC VICE Defendant.
The motion of SigridS.McCawley ___, for admission to
practice Pro Hac Vice in the above captioned action is granted.
Applicant has declared that he/she is a member in good standing of the bar(s) of the state(s) of
Florida
___; and that his/her contact information is as follows (please print):
ABDC aE er eT ce ses
SN ee cet emeei
Address: _ 401 East Las Olas Boulevard, Suite 1200
City / State / Zip: Fort Lauderdale, Florida 33301
Telephone / Fax: Tel: (954) 356-0011 / Fax: (954) 356-0022
Applicant having requested admission Pro Hac Vice to appear for all purposes as counsel for
_P laintiff Virginia L. Giuffre - - in the above entitled action;
IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing
discipline of attorneys.
Dated:
| USDC AE
Sait
‘ «
Pn | ELECTRONICALLY FILED 1 DOC #: | i| DATE Fi ————
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Case 1:15-cv-07433-RWS Document9 Filed 09/29/15 Page 2 of 3 Case 1:15-cv-07433-RWS Document6 Filed 09/25/15 Page 1 of 2
‘| per Te na mek : es
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK.
Virginia L. Giofire.
~aeainst ‘Soe, af CORRECTED MOTION FOR ADMISSION, ae Gislaine Maxwell, =e PRO HAC VICE = wot” Welurdant
sd Sietes Courts fir the Southern and Fastere
Distriess of New York, ] 9 Sigrid So MecCunwwies J hereby move this Court
Dive cee feted: var tryege cds Spa ticnes Bey blac View te ¢ for an Order fer admission to practice Pro ilac Vice to
arpear aa Caunse: tor
Moalarff Waren: Sudipe +t m ere . feyr Plain \ ede PoGaatts i LAe above-caphoned Qe LEO.
i
bam pi good standing of the bar{s} of the statets) of
orida : : o : oo and there are no peading dlisciniinary proveedings agaist
MHA AY Shite or fod
vont.
Yored: Septentber 25, 2058
Applicant Signature \coticant's Nan: Sigrid So MeCawley Pore Name. Boles. Schuler & Plesner LLP
Address: 70) Cast Las Gias Boulevard, Suite [200
oe, a
©) Fis Port Lauderdale, PL 33301
felephone / Fax: Vel. (934) 336-0001 6 Pax: (954) 356-0022
P-Magi amecawleverbsfip.cem
Case 1:15-cv-07433-RWS Document9 Filed 09/29/15 Page 3 of 3 Case 1:15-cv-07433-RWS Document6 Filed 09/25/15 Page 2 of 2
Supreme Court of Florida Certificate of Good Standing
I JOHN A. TOMASINO, Clerk of the Supreme Court of the State of Florida, do
hereby certify that
SIGRID STONE MCCAWLEY was admitted as an attorney and counselor entitled to practice law in all the Courts of the State of Florida on November 6, 1997, is presently in good
standing, and that the private and professional character of the attorney
appear to be good.
WITNESS my hand and the Seal of the
Supreme Court of Florida at Tallahassee,
Clerk of the Supreme Court of Florida AN
CT 12-2015 CHAE 09 2 AU OHARD OREM ocument 11 FAH 18/1 37883°Rebe 1 of 1 re ae
eo
sewer eeearieran oe tae ae anna c
OCT 12 255 150
= neat [ October 9, 2015 | US De SDNY OO Honorable Robert W. Sweet ate United States District Judge Southern District of New York 500 Pearl Street
New York, NY 10007-13122
Re: Giuffre v. Maxwell, Case No. ]5-cv-07433-RWS Dear Honorable Judge Sweet:
I represent defendant Ghislaine Maxwell in connection with the above-referenced action. I write pursuant to Section 1.E. of Your Honor’s Individual Practice Rules to request an extension of Defendant’s time to answer, move or otherwise respond to Plaintiff's Complaint from October 13, 2015 up to and including November 30, 2015,
We have not previously requested any adjournments or extensions of time in this action. Counsel for Plaintiff has consented to this request.
We thank Your Honor for your attention to this matter,
Very fealy yours, A. Menninger (" LAM/BCR ©
cc! Sigrid 8. McCawley, Esq. Boies, Schiller & Flexner, LLP Counsel for Plaintiff Virginia Giuffre » via facsimile: (954) 356-0022 S
—-
Case 1:15-cv-07433-RWS Document12 Filed 10/13/15 Page 1 of 2
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
VIRGINIA L. GIUFFRE,
Plaintiff, v.
GHISLAINE MAXWELL,
Defendant.
Case No.: 15-cv-07433-RWS
NOTICE OF APPEARANCE
To the Clerk of Court and all parties of record:
PLEASE TAKE NOTICE, that the undersigned hereby appears in the above-captioned
action as counsel for Defendant Ghislaine Maxwell. I certify that I am admitted to practice in
this Court.
Dated: October 9, 2015
Respectfully submitted,
s/ Laura A, Menninger
Laura A. Menninger (LM-1374) HADDON, MORGAN AND FOREMAN, P.C. 150 East 10°" Avenue
Denver, CO 80203
Phone: 303.831.7364
Fax: 303.832.2628
Imenninger @hmflaw.com
Attorney for Ghislaine Maxwell
Case 1:15-cv-07433-RWS Document12 Filed 10/13/15 Page 2 of 2
CERTIFICATE OF SERVICE
I certify that on October 13, 2015, I served this Notice Of Appearance via CM/ECF to the following:
Sigrid S. McCawley
BOIES, SCHILLER & FLEXNER, LLP
401 East Las Olas Boulevard, Suite 1200 Fort Lauderdale, FL 33301
smccawley @bsfllp.com
Fax: (954) 356-0022
s/ Brenda Rodriguez
Brenda Rodriguez
Case 1:15-cv-07433-RWS Document13 Filed 10/30/15 Page 1 of1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x
Giy Ere, Plaintiff, - against - a uf 5 |. ) Civ. a 5
> Defendant, xX Sweet, D.J., The parties to this action, t attorneys, having appeared before this Court at a pretrial conference on » pursuant to Rule 16 of the Federal
Rules of Civil Procedure, pursuant to
if IS HEREBY ORDERED that:
1. All motions are to be made returnable at 12:90 noon on Wednesday and in compliance with the rules of this Court.
2. The parties shall te all fact discovery by wh ( Cc and all expert discovery by The expert report (s) of the party with the burden of proof shall be due of the opposing party’s expert(s). The parties shall file all motions,’ othdr than motions in limine, by this date (or whichever is later), after which no discovery will be conducted and no motion will be entertained without a showing of special circumstances. Plaintiff(s) shall submit a draft of the pretrial order to the defendant(s) on or before the completion of discovery. The parties are advised that this Court is participating in a Pilot Program for initial discovery protocols for employment cases alleging adverse action. See www.fjc.gov.
3. The parties shall, in order to prevent delay or interruption of the trial, have sufficient witnesses. at all times during the trial and shall perpetuate before trial the direct and cross-examination testimony of any essential witness.
4, The parties shall submit to the court trial briefs, a joint proposed pretrial order, and, if applicable, motions in limine and proposed jury charges, voir dire
requests verdict form in accordance with the annexed form and instructions by Gs final pretrial conference will be held at 4:30 pm on that date and a€tyon sh®11 be added to the trial calendar published in the New York Law
Journal. rior/to submission of the final pretrial order, the parties are directed to exchange offers of settlement. The parties are directed to be ready for trial the day after the pretrial order is due and, upon receipt of twenty-four hour telephone notice, on any day thereafter.
5. Adjournments of the dates set forth above will not be granted except for good cause and upon written application made as soon as the grounds for such application are known.
6. Failure to comply with any of the provisions of this order will result in dismissal of the action, entry of a default judgment, or other appropriate sanction.
It is so ordered.
New York, NY Ort 2E4 > 204 ROBERT. SWEET [USDC SDNY 8.0.3.
DOCUMENT ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Serato xX VIRGINIA L. GIUFFRE, PLAINTIFF, V. 15-cv-07433-RWS GHISLAINE MAXWELL, Oral Argument Requested for January
DEFENDANT GHISLAINE MAXWELL’S NOTICE OF MOTION TO DISMISS THE COMPLAINT
PLEASE TAKE NOTICE THAT, upon the accompanying Declaration of Laura A. Menninger, dated November 30, 2015, and the exhibits thereto and the accompanying Memorandum of Law, dated November 30, 2015, any other matters of which the Court may take judicial notice, and upon all prior pleadings and proceedings in this action, other documents on file in this action, and any oral argument of counsel, Defendant Ghislaine Maxwell (“Maxwell’’) will move this Court, before the Honorable Robert W. Sweet, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York, Courtroom 18C, for an Order pursuant to Federal Rule of Civil Procedure 12(b)(6) dismissing the Complaint of Plaintiff Virginia Giuffre in its entirety
and granting such other and further relief as the Court deems just and proper.
Dated: November 30, 2015
Respectfully submitted,
s/ Laura A. Menninger
Laura A. Menninger
HADDON, MORGAN AND FOREMAN, P.C. 150 East 10" Avenue
Denver, CO 80203
Phone: 303.831.7364
Fax: 303.832.2628 Imenninger@hmflaw.com
Attorneys for Ghislaine Maxwell
CERTIFICATE OF SERVICE
I certify that on November 30, 2015, I electronically filed this DEFENDANT GHISLAINE MAXWELL’S NOTICE OF MOTION TO DISMISS THE COMPLAINT with the Clerk of Court using the CM/ECF system which will send notification to the following:
Sigrid S. McCawley BOIES, SCHILLER & FLEXNER, LLP 401 East Las Olas Boulevard, Ste. 1200 Ft. Lauderdale, FL 33301 smccawley @bsfllp.com s/ Brenda Rodriguez
Brenda Rodriguez
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ssh Sa Pee SIS Sahat Sates I Ra ius Xx VIRGINIA L. GIUFFRE,
PLAINTIFF, V.
15-cv-07433-RWS
GHISLAINE MAXWELL,
DEFENDANT. eas UL oD X
GHISLAINE MAXWELL’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT
Laura A. Menninger, Esq.
HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue
Denver, CO 80203
Tel: 303.831.7364
Dated: November 30, 2015
Table of Contents
I. MS.MAXWELL’S STATEMENTS ARE PRIVILEGED ..........cecceeceeseeseeseeneeeeeeeenee 9 A. The Self-Defense Privilege Protects Ms. Maxwell’s Statements... ce eeeeeteeeees 9 B. The Pre-Litigation Privilege Protects Ms. Maxwell’s Statements ............eeeeeeeeeee 14
Il. PLAINTIFF FAILED TO PLAUSIBLY PLEAD DEFAMATION .........ceeeeeeeees 17 A. Viewed In Context, the Statements are Non-Actionable ......0..... eee eeeeeeeseeeeneeeeeeees 18
B. The Complaint Does Not Allege to Whom, Where or in What Manner the January
De SEALE MIME TIE WAS VU aha zis rive evarza ses ace Ate ene Eau ee EAE orcas 22
C. Plaintiff Has Not Properly Pled Special Damages ...0........ecccceeeesceceeeeeceeeeeeeneeeeenes 23
a. The Alleged Defamatory Statement is Not Defamatory Per Se ..........ccccceeeeees 23
b. Failure to Allege Special Damages Warrants Dismissal .........0...ceeceeeeeeseeeeeeees 24
COIN SON oa scecest ees agus tee gy seed Pa cgnneetic as muscu teucceae sto as teae ean ggoen oem dene a coneteeiee 25
Cases
Abrams v. United States, 250 U.S. 616, 630 (1919)... eeeeeeeeseesseessssssssssessersrseteeees 17 Adelson v. Harris, 973 F. Supp.2d 467, 477 (S.D.N.Y. 2013)... ..eeeceeececeseeeeeeneeeeeneeeeenees 7 Armstrong v. Simon & Schuster, Inc., 625 N.Y .S.2d 477 (1995) ...cccecssccccesssccceeesesteeeeeeseees 7 Ashcroft Vv. fqval. 129 S206 1937, L949 (2009) iveccctelsccedascitseaeeieatenncsbe els soa taeseubieeeieucts 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) ......ceeecccccccesssceceesesseeeeeeeseeeeeeees 7 Biro v. Conde Nast, 883 F.Supp.2d 441, 457 (S.D.N.Y. 2012) oe eeeseeeeseeceenteeeeees AD Caplan v. Winslet, 218 A.D.2d 148, 153 (1st Dep’t 1996) 0... eee cceseeeseeceseeeeeeeesteeneees 13 Celle v. Fillipino Reporter Enters, Inc., 209 F.3d 163 (2d Cir. 2000) ........ccceeccceceeesseeees 17
Club Valencia Homeowners Ass’n, Inc. v. Valencia Associates, 712 P.2d 1024 (Colo.
PRIN UO rela eeu otia ik a acta ela be ca tateae eta tats aula ta ceetu eda cee ie acey taco ateceeaes 13 Cohen v. Stevanovich, 772 F.Supp.2d 416, 423 (S.D.N.Y. 2010) oo... eeeeceeseceeneeeeneeeees o Collier v. Possum Cereal Co., Ltd., 134 N.Y.S. 847, 853 (1st Dep’t 1912) oe 9 Couloute, Jr. v. Rynarz, No. 11 CV 5986 (HB), 2012 WL 541089, (S.D.N.Y. 2012) ..... 17 Cruz v. Marchetto, No. 11 Civ. 8378, 2012 WL 4513484 (S.D.N.Y. 2012) .......... 7, 20, 21 Culver v. Merrill Lynch & Co., 1995 US Dist. LEXIS 10017 (S.D.N.Y. 1995)... 13 Deutsche Asset Mgmt, Inc. v. Callaghan, No. 01 Civ 4426 CBM, 2004 WL 758303...... 16 Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (st Dep’t 1999) oo... ceteeereeereeee 8,18
Edwards v. Great Northern Ins. Co., No. 03 CV 2947 (NG) (RML), 2006 WL 2053717,
CEATDSIN, Veo SU digs 20 DOG) tata ec teclo lets tasters eostieaa teceah Mba iaalgsincestuies Aeateca ecomsbesaeAgceiar ns 18 Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541 (4th Cir. 1994) oo... eeeeeees 8, 11 Fowler v. New York Herald, 172 N.Y.S. 423 (1% Dep’t 1918) .c.ccccccccsssssssssssesesesesesesesesees 8
ili
Frechtman v. Gutterman, 979 N.Y.S.2d 58 (1st Dep’t 2014)... eee ceeceesseceteeeeeeeesteeneees 14
Front Inc; v. Khalil, 24-N Y¥i30-7 13 720 (20 5 ics cess feaaniioeannhadscaideaiansnueee tase tia saladaiadoes 13 Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F.Supp.2d 405 (S.D.N.Y. 2009) 0.0... 8 Gertz v. Robert Welch, Inc., 418 U.S. 323, 325 (1974)... ccccccccccccccseceseeeseseseseseseeeeess 17
Hawkins v. City of New York, No. 99 Civ. 11704 (RWS), 2005 WL 1861855 (S.D.N.Y.
UE A, DODD ) siersensiersascvuwneneeaie enon ww aren be een a ia 20, 21, 23 Hoesten v. Best, 821 N.Y.S.2d 40 (1st Dep't 2006) .0..... eee eeeceeseeeeceeeeeceeeeeeeeneeceeaeeees 12 Independent Living Aids, Inc. v. Maxi-Aids, Inc., 981 F.Supp. 124 (E.D.N.Y. 1997)...... 19
International Publishing Concepts, LLC v. Locatelli, 9 N.Y .S.3d 593, 2015 N.Y. Slip Op. 50049 (N.Y. Supe C tans, (55-2015) sancti cu teiia eee were, Set eeraeeanet; 14
J.P.R. Cafeteria, Inc. v. Kingsborough Community College of City University of New
York, 847 N.Y.S.2d 902 (N.Y. Sup. Ct. Aug. 21, 2007) eee eseeceeeceeeceeeceseeeseeeseeees 21 Kane v. Orange Cnty. Publ’n, 232 A.D.2d 526, 527 (2d Dept. 1996)... eee eeeeteceerteeees 8 Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994) wu... ccccccccccececeeseseseeeeeeeeeeeeeseeeeeeeeeees 17 Kforce, Inc. v. Alden Personnel, Inc., 288 F.Supp.2d 513, 516 (S.D.N.Y. 2003) ...... 16, 21 Kirk v. Heppt, 532 F.Supp.2d 586 (S.D.NLY. 2008) o..csccccetecctisecscdecsesteonsesasavsstesaeouctosecess 14 Krepps v. Reiner, 588 F.Supp.2d 471, 483 (S.D.N.Y. 2008) ........ ce eeecceeeseeeeeeneeceeneeeeeneeeeenes 7 Liberman v. Gelstein, 80 N.Y.2d 429, 590 (N.Y. 1992) ou... cccccceceseseseseseseseseseseseseseees 22 McNamee v. Clemens, 762 F.Supp.2d 584, 601 (E.D.N.Y. 2011) wo. eee eeeneeeeenteeeeneees 19 Mencher v. Chesley, 85 N.Y.S.2d 431 (N.Y. Sup. Ct. 1948) occ eeeecesececeeneeeeeneeeeeneeeees 9 Orenstein v. Figel, 677 F.Supp.2d 706, 711 (S.D.N.Y. 2009) 0... eeeceeeececeeneeeeeneeeeeneeeees 8 Preston v. Hobbs, 146 N.Y.S. 419 (1° Dep't 1914) ..cccccccssscscsssssseseseseseesesesesesessssssssseeees 9
iv
Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F.Supp.2d 489,
SHON EY. DOLD cc cavctacaoitet rain daticthelaceadietarceateht reaanelats athatads sates atl eas Miatsatlatad ited 22 Sexter v. Warmflash, P.C. v. Margrabe, 828 N.Y.S.2d 315 (1st Dep’t 2007) .......... ee 14 Shenkman v. O’Malley, 157 N.Y.S.2d 290, 297-98 a" Dep (19S G)westieicsaoereauanVereescnon: 8 Siegel v. Metropolitan Life Ins. Co., 32 N.Y.S.2d 658 (1" Dep’t 1942) .c.cccccceceesesesesees 8 Thai v. Cayre Group, Ltd., 726 F.Supp.2d 323, 330 (S.D.N.Y. 2010) 0... eeeeeeeeeteeeeteees 23 Thai v. Cayre Grp., Ltd., 726 F. Supp. 2d 323, 330 (S.D.N.Y. 2010) 0... eeeeeesteeeeteeee 16 Thompson v. Bosswick, 855 F.Supp.2d 67, 77 (S.D.N.Y. 2012)... ceeceeeececeesteeeennees Py 22 TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1182-83 do" Cit: 2O0T \adeiiewateleeasiene 9
Treppel v. Biovail Corp., No. 03 Civ. 3002 (PKL), 2005 WL 2086339, at *7 (S.D.N.Y.
PU SUZ 00D Vs seisucts coueeatarersicat ean sity sustarneral ete tnd arcesesty nobel etna eernindl tamoton 7 U.S. SE.C. v. Power, 525 F. Supp.2d 415, 418 (S.D.N.Y. 2007)... eeeececeseecesneeeeeneeeeeees 3 Wanamaker v. Columbian Rope Co., 713 F.Supp.533, 545 (S.D.N.Y. 1989)... eee 18 Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 62 (2d Cir. 1993) .eeeccccccsssssteeeeeesseeees 11 Williams v. Burns, 463 F.Supp. 1278, 1282 (D. Colo. 1979)... eeececeseeeceeeceeeeeeeeeneeeees 9 Yuan v. Rivera, 1998 WL 63404, at *5 (S.D.N.Y. Feb. 17, 1998)... cccccceeeeeeeeeeee 12 Zerr v. Johnson, 894 F. Supp. 374, 376 (D. Colo. 1995) oo... eeeeceeceeeeeeeceeeeeceeneeeeeneeeees 16
INTRODUCTION
The Plaintiff in this case falsely and maliciously launched a media campaign several years ago in the United Kingdom accusing Defendant Ghislaine Maxwell of serious and criminal sexual abuse from 1999-2002. Plaintiff repeated those allegations in litigation pleadings to which Ms. Maxwell was not a party and which since have been stricken as “immaterial and impertinent.” Those pleadings were widely circulated to the public by various media outlets in the United States and abroad, further generating interest in Plaintiffs spurious claims. Plaintiff’s allegations of sexual abuse extend beyond just Ms. Maxwell and encompass many notable public figures, such as Prince Andrew and Harvard Law Professor Alan Dershowitz, as well as un-named “numerous American politicians, powerful business executives, foreign presidents, a well-known Prime Minister, and other world leaders.” Plaintiffs targeting of such notable public figures has served only to enhance the media spotlight on the false accusations directed at Ms. Maxwell.
In response to Plaintiffs published claims, Ms. Maxwell (like Prince Andrew and Professor Dershowitz), issued general denials to the allegations. Those two denials form the basis of this defamation action: Plaintiff claims it defamatory for Ms. Maxwell to have issued statements through her London agent that Plaintiff’s allegations “are untrue,” “shown to be untrue” and “obvious lies.”
Long-settled New York law renders denials such as Ms. Maxwell’s privileged under the law and requires dismissal of this defamation action. As one commentator wrote in 1881, “If I am attacked in a newspaper, I may write to that paper to rebut the
1
charges, and I may at the same time retort upon my assailant, when such retort is a necessary part of my defense, or fairly arises out of the charges he has made against me.” William Blade Odgers, A Digest of the Law of Libel and Slander (1* Am. ed. Bigelow 1881). Because Ms. Maxwell’s denials were proportionate, relevant and not excessively publicized replies to Plaintiffs claims, rendered without malice, she is entitled to the privilege of self-defense and this Complaint should be dismissed. Moreover, because the denials when viewed in context demonstrate that they were pre-litigation demands to the British newspapers to cease and desist, they likewise are entitled to the litigation privilege.
Finally, the Complaint falls woefully short of a well-pled defamation claim. New York law makes clear that general denials, as compared to specific defamatory denials, are non-actionable in defamation. Plaintiff also neglected to state when, to whom and in what manner the statements were made and she omitted any special damages or facts establishing defamation per se.
Each of these reasons forms a separate and independent basis to dismiss the Complaint pursuant to Rule 12(b)(6). Ms. Maxwell seeks this Court’s assistance in serving as a gatekeeper to dismiss this spurious defamation claim.Be clear: Maxwell absolutely denies VR’s claims made about her in pleadings filed in cases to which she was not a party and in paid media interviews to trashy British publications.
“General denials are not actionable” in defamation. General denials issued as a part of a
cease and desist to the news organizations publishing the false and salacious accusations are
privileged. No special damages and no defamation per se.
FACTUAL ALLEGATIONS!
Plaintiff has repeatedly and falsely accused Ms. Ghislaine Maxwell of sexual abuse occurring between 1999 and 2002. Since 2009, Plaintiff has set forth these false claims in pleadings filed in various federal civil actions in Florida. Compl. { 8-21, 26-27. Ms. Maxwell was not a party to any of those litigations: not the criminal case against Mr. Epstein (Compl.
{ 14), any non-prosecution agreement between Mr. Epstein and the U.S. Attorney’s Office (Compl. J] 11-13), the litigation concerning the Crime Victim’s Rights Act (CVRA) still pending in U.S. District Court for the Southern District of Florida (Compl. {fff 15-16), and not Plaintiff's 2009 civil suit against Mr. Epstein (Compl. {| 17-21). No criminal charges were ever brought against Ms. Maxwell, and Plaintiff never sought to join Ms. Maxwell to any of her civil matters involving Mr. Epstein.
Plaintiff's accusations against Ms. Maxwell were not confined to legal proceedings, however. Beginning in or around March 2011, Plaintiff granted “exclusive” interviews to the British press, using her real name, during which she repeated her false allegations against Ms. Maxwell and also levied accusations against countless prominent public figures such as Prince Andrew, Harvard Law professor Alan Dershowitz, and “a well-known businessman (whose pregnant wife was asleep in the next room), a world-renowned scientist, a respected liberal politician and a foreign head of state.” See Declaration of Laura A. Menninger (“Menninger
Decl.”’) Ex. A, at 3.
, This statement of facts is based on (1) the allegations set forth in the Complaint; and (2) documents referenced in the Complaint, but which were not attached to the pleading. U.S. S.E.C. v. Power, 525 F. Supp.2d 415, 418 (S.D.N.Y. 2007) (J. Sweet) (On a motion to dismiss, “[t]he Court may also consider any documents...incorporated by reference into the complaint.”). Further, pursuant to Fed. R. Civ. P. 12(d), if the motion is treated as one for summary judgment, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”
In response to Plaintiffs 2011 British tabloid interviews, on March 9, 2011 a “Statement on Behalf of Ghislaine Maxwell” was issued by Devonshires Solicitors (“2011 Statement’). Menninger Decl. Ex. B.’ The 2011 Statement provides in its entirety:
Ghislaine Maxwell denies the various allegations about her that have appeared recently in the media. These allegations are all entirely false.
It is unacceptable that letters sent by Ms. Maxwell’s legal representatives to certain newspapers pointing out the truth and asking for the allegations to be withdrawn have simply been ignored.
In the circumstances, Ms. Maxwell is now proceeding to take legal action against those newspapers.
“T understand newspapers need stories to sell copies. It is well known that certain
newspapers live by the adage, ‘why let the truth get in the way of a good story.’
However, the allegations made against me are abhorrent and entirely untrue and I
ask that they stop,” said Ghislaine Maxwell.
‘““A number of newspapers have shown a complete lack of accuracy in their
reporting of this story and a failure to carry out the most elementary investigation
or any real due diligence. I am now taking action to clear my name,” she said. Plaintiff did not bring suit against Ms. Maxwell for defamation based on the 2011 Statement.
More than three years later, on December 30, 2014, Plaintiff moved under Rule 21 to join the 2008 CVRA litigation in the U.S. District for the Southern District of Florida (“Joinder Motion”). Compl. ¥] 16, 26, 27. Plaintiff included in her Joinder Motion “lurid details” concerning her supposed sexual abuse by Ms. Maxwell and other non-parties to that CVRA action, including professor Alan Dershowitz, “numerous American politicians, powerful business executives, foreign presidents, a well-known Prime Minister, and other world leaders.”
Menninger Decl. Ex. C at 4-5. On April 7, 2015, U.S. District Court Judge Marra denied
Plaintiff's Joinder Motion, ordered the portions of the Joinder Motion pertaining to non-parties
q Although the Complaint does not explicitly mention the 2011 Statement, it appears Plaintiff believes it to be the “additional” statement referenced on paragraphs 30 and 31 based on her production of the statement as a part of her Rule 26 disclosures.
4
such as Ms. Maxwell stricken as “immaterial and impertinent,” and restricted the documents mentioning those “lurid details” from public access. Jd.; Menninger Decl. Ex.D. Despite the court’s attempt to shield the false statements, the bell could not be un-rung. The same day the Joinder Motion was filed, British and U.S. press began publishing numerous stories based on its contents. See, e.g., Politico, “Woman Who Sued Convicted Billionaire Over Sex Abuse Levels Claims at his Friends.” (Dec. 31, 2014).
According to the Complaint, it was on January 3, 2015, a few days after the Joinder Motion was publicly filed, that Ms. Maxwell is alleged to have “spoken through her authorized agent” to “issue an additional false statement to the media and public.” Compl. § 30. According to the Complaint, this January 3, 2015 Statement “contained the following deliberate falsehoods”: (a) Plaintiff's sworn allegations “against Ghislaine Maxwell are untrue,” (b) the allegations have been “shown to be untrue;” and (c) Plaintiff's “claims are obvious lies.” Id. The January 3 Statement also “incorporated by reference” an “original response to the lies and defamatory claims” made by Ms. Maxwell, which response purportedly had described Plaintiff's allegations as “entirely false” and “entirely untrue.” Compl. § 31. Copies of the entire January 3 Statement and the “original response” were not included in or attached to the Complaint. The Complaint also did not detail where the January 3 Statement was made, to whom it was made, nor any factual assertion regarding its publication by any news media.
The Complaint supplies one additional purportedly defamatory statement. According to Plaintiff, on January 4, 2015, “a reporter on a Manhattan street” “asked Ms. Maxwell about [Plaintiffs] allegations” and Ms. Maxwell “responded” with the phrase: “I am referring to the
statement that we made” (“January 4 Statement’). Compl. §/ 37. This video was published by
; Available at http://www.politico.com/blogs/under-the-radar/2014/12/woman-who-sued-convicted- billionaire-over-sex-abuse-levels-claims-at-his-friends-200495 (accessed on November 30, 2015).
5
the New York Daily News. (Id.) Indeed, although not detailed in the Complaint, the New York Daily News website contains a video entitled “Ghislaine Maxwell declines comment on
allegations she is a madam.”
The filmed portion of the encounter begins with Ms. Maxwell stating that “I wish you a happy new year and thank you so much;” whatever is said prior to that statement was not recorded. A voice then inquires, “so you’re basically not commenting, is that...”; Ms. Maxwell’s response, perhaps “I’m referring to the statement that was made," is barely audible. Another person questions, “is any of that true?” Ms. Maxwell then responds “C’mon guys” and walks away. According to the Complaint, this “response” demonstrates Ms. Maxwell’s “continued...campaign to falsely and maliciously discredit” Plaintiff. Compl. §[ 37.
The Complaint does not allege damages in detail. It generically asserts that Plaintiff has suffered “economic damage, psychological pain and suffering, mental anguish and emotional distress, and other direct and consequential damages.” Compl. Count 1 § 19. Further, Plaintiff claims she “incorporated an organization called Victims Refuse Silence, Inc., a Florida not-for- profit corporation” on December 23, 2014, approximately 10 days before the January 3 Statement. Compl. {ff 24-25. Plaintiff's role with the corporation, her profession, and any basis for Ms. Maxwell to even know of the corporation’s existence are not alleged, but the Complaint baldly asserts that the January 3 and 4 Statements “tended to injure [Plaintiff] in her professional capacity as the president of a non-profit corporation designed to help victims of sex trafficking.” Compl. Claim 1, { 11.
ARGUMENT To survive dismissal, “a complaint must contain sufficient factual matter...to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
. Available at http://www.nydailynews.com/news/world/alleged-madame-accused-supplying-prince- andrew-article-1.2065505 (accessed November 30, 2015).
6
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Plausibility” means the claim must be supported by facts that establish more than “a sheer possibility that a defendant has acted unlawfully.” Cruz v. Marchetto, No. 11 Civ. 8378, 2012 WL 4513484, at *3 (S.D.N.Y. Oct. a, 2012) (quoting Cohen v. Stevanovich, 772 F.Supp.2d 416, 423 (S.D.N.Y. 2010)).
In the defamation context, the Court acts as a gatekeeper and should dismiss claims in which the challenged statements are not “reasonably susceptible of a defamatory meaning.” Krepps v. Reiner, 588 F.Supp.2d 471, 483 (S.D.N.Y. 2008) (Sweet, J.) (citing Treppel v. Biovail Corp., No. 03 Civ. 3002 (PKL), 2005 WL 2086339, at *7 (S.D.N.Y. Aug. 30, 2005)). As courts in this district have recognized, there is “particular value” to resolving defamation claims at the pleading stage, as protracted litigation can have a chilling effect on the exercise of constitutionally protected freedoms. Biro v. Conde Nast, 883 F.Supp.2d 441, 457 (S.D.N.Y. 2012) (quoting Armstrong v. Simon & Schuster, Inc., 625 N.Y.S.2d 477, 481 (N.Y. 1995).
I. MS. MAXWELL’S STATEMENTS ARE PRIVILEGED*
To succeed on a claim for libel, or defamation based on written statements, pursuant to New York law, a plaintiff must establish the “elements [of] a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a
negligence standard, and, it must either cause special harm or constitute defamation per se.”
. Under New York’s choice-of-law rules for defamation actions, the general rule is that “the state of the plaintiff's domicile (in this case, Colorado) will usually have the most significant relationship to the case” and therefore that state’s law will govern. Adelson v. Harris, 973 F. Supp.2d 467, 477 (S.D.N.Y. 2013) (internal quotations omitted). However, in multistate cases such as this in which the alleged defamatory statement was published nationally, there is only a presumptive rule that the law of plaintiff's domicile applies. Jd. That presumption may not hold when some other state has a more significant relationship to the issues or the parties. Id. Here, because Ms. Maxwell is a resident of New York, and one of the purported statements was made in New York, this state has arguably a more substantial relationship to the alleged tort than does Colorado. Nonetheless, the laws of Colorado and New York are substantially similar. For these reasons, Ms. Maxwell asks the Court to apply New York law, but will note any differences between the two laws when applicable.
Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (1st Dep’t 1999) (emphasis added). “[I]n light of the incorporation of a lack of privilege into the elements of a defamation claim,” a Court may properly dismiss a defamation such a claim pursuant to Rule 12(b)(6) where a qualified privilege is established. Orenstein v. Figel, 677 F.Supp.2d 706, 711 (S.D.N.Y. 2009); see also Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F.Supp.2d 405 (S.D.N.Y. 2009).
Ms. Maxwell’s Statements are privileged both under the New York self-defense privilege and the pre-litigation privilege and the Complaint should therefore be dismissed.
A. The Self-Defense Privilege Protects Ms. Maxwell’s Statements
“Every man has a right to defend his character against false aspersion. It may be said that this is one of the duties that he owes to himself and to his family. Therefore communications made in fair self-defense are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, when such retort is a necessary part of my defense, or fairly arises out of the charges he has made against me.” William Blake Odgers, A Digest of the Law of Libel and Slander (\st Am. ed. Bigelow 1881).
New York, along with numerous other jurisdictions® and the Restatement (Second) of Torts, recognizes a qualified privilege to respond in self-defense to verbal defamatory attacks levied by another upon the speaker. See, e.g., Kane v. Orange Cnty. Publ’n, 232 A.D.2d 526, 527 (2d Dept. 1996) (“[S]ince the open letter was the [defendant’s] response to unfavorable publicity against him—publicity concededly generated ‘with the cooperation of plaintiffs’—it was covered by a qualified privilege.”); Shenkman v. O’Malley, 157 N.Y.S.2d 290, 297-98 (1st Dep’t 1956); Siegel v. Metropolitan Life Ins. Co., 32 N.Y.S.2d 658 (1st Dep’t 1942); Fowler v.
New York Herald, 172 N.Y.S. 423 (1 Dep’t 1918); Preston v. Hobbs, 146 N.Y.S. 419 (1st Dep’t
: See Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 155-60 & n.19 (4th Cir. 1994) (collecting cases). 8
1914); Mencher v. Chesley, 85 N.Y.S.2d 431 (N.Y. Sup. Ct. 1948) (“The pertinent authorities hold that a person subjects his own motives to discussion when he makes a public attack upon another. Legitimate self-defense is not limited to a mere denial of the charges, but it may include a proper counterattack in the forum selected by the plaintiff”); see also Restatement (Second) of Torts § 594 cmt. k (1977) (“A conditional privilege exists under the rule stated in this Section when the person making the publication reasonably believes that his interest in his own reputation has been unlawfully invaded by another person and that the defamatory matter that he publishes about the other is reasonably necessary to defend himself. The privilege here is analogous to that of self-defense against battery, assault or false imprisonment . . . Thus the defendant may publish in an appropriate manner anything that he reasonably believes to be necessary to defend his own reputation against the defamation of another, including the statement that his accuser is an unmitigated liar.”).’
In Collier v. Possum Cereal Co., Ltd., 134 N.Y.S. 847, 853 (1st Dep’t 1912), the self- defense privilege was explained:
The important question is whether the defendant had the right to impugn the motives of its assailant, if it did so honestly without malice and for the sole purpose of repelling the assault upon it, and not with the view of injuring the plaintiff. One who makes a public attack upon another subjects his own motives to discussion. It is a contradiction in terms to say that the one attacked is privileged only to speak the truth, and not to make a counter attack, or that legitimate self-defense consists only in denial of the charge or a statement of what is claimed to be the truth respecting its subject-matter. One in self-defense is not confined to parrying the thrusts of his assailant. Of course, the counter attack must not be unrelated to the charge, but surely the motives of the one making it
: Although the Colorado appellate courts apparently have not yet ruled on the issue of self-defense privilege, the 10" Circuit has deemed it a “safe presumption” that Colorado Supreme Court would adopt the various provisions of the Restatement (Second) of Torts (1977) as part of “its common law of defamation” based on its decisions and Uniform Jury Instructions. See TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1182-83 qo" Cir. 2007); see also Williams v. Burns, 463 F.Supp. 1278, 1282 (D. Colo. 1979) (recognizing qualified privilege defense for protecting one’s interest).
9
are pertinent. The plaintiff selected the forum for the dispute, and
in that forum it would certainly tend to repel, or minimize the
harmful tendency of the charges to show that the one making them
was actuated by an improper motive. See also Sack, Robert D., Sack on Defamation: Libel, Slander and Related Problems (Practicing Law Inst., Apr. 2015 ed.) at Kindle Loc. 20357-20370 (“A person also has a right to defend himself or herself from charges of unlawful activity... The right to defend oneself against defamation is a recognized interest. An individual is privileged to publish defamatory matter in response to an attack upon his or her reputation; the speaker is given more latitude in such a situation than if the statements were not provoked.”).
Each of the Statements attributed to Ms. Maxwell and her representatives regarding Plaintiff was issued in self-defense. Plaintiff ignited this controversy by asserting in the British press her public accusations that Ms. Maxwell had committed sexual abuse. Menninger Decl. Ex. A. (Plaintiff's interview with Daily Mail) Plaintiff further fanned the flames by filing in U.S. federal court on December 30, 2014 “immaterial and impertinent” “lurid details” in a public pleading which again accused Ms. Maxwell of committing sexual abuse. Menninger Decl. Ex. C. Given her many previous dealings with the media on this topic, Plaintiff clearly filed those public pleadings with knowledge (or more probably an intention) that such materials would be published by the press. Compl. {J 26, 27. Ms. Maxwell’s January 3 Statement, according to the
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Complaint, states that the allegations “against Ghislaine Maxwell are untrue,’” the claims are “obvious lies,” have been “shown to be untrue,” and the “claims are all obvious lies.”” Each attributed statement responds directly to allegations and claims made by Plaintiff. Compl. { 31. Likewise to the extent the claimed statement that “Ghislaine Maxwell’s original response to the
lies and defamatory claims remains the same” (Compl. § 32) refers to an earlier statement
describing Plaintiffs “factual assertions as ‘entirely false’ and ‘entirely untrue,” those also
10
respond directly to allegations and claims made by Plaintiff.8 And the J anuary 4 Statement refers to another “statement” and is therefore entitled to the same privileges as any other “statement.”
Nor has Plaintiff demonstrated that the self-defense privilege was “‘abused” so as to remove the defense. According to the Second Circuit (interpreting New York law), once the defendant has proved that she is entitled to a qualified privilege, there arises a rebuttable presumption of good faith that may constitute a complete defense. In order to rebut this presumption, the plaintiff must demonstrate two things: (1) that the statement was false, and (2) that the defendant abused its qualified privilege. Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 62 (2d Cir. 1993) (citations omitted). With regard to self-defense, the “privilege may be lost...if the reply: (1) includes substantial defamatory matter that is irrelevant or non-responsive to the initial statement; (2) includes substantial defamatory material that is disproportionate to the initial statement; (3) is excessively publicized; or (4) is made with malice in the sense of spite or ill will.” Sack, supra; Restatement (Second) of Torts, §§ 599, 603-605A (1977).
Here, Plaintiff has not—and cannot—establish that the privilege was lost. Each of the
statements attributed to Ms. Maxwell is relevant, directly responsive, and proportional to
99 66 99 66
Plaintiff's accusations. That the statements are “untrue,” “obvious lies,” “shown to be untrue” or were “denied” are each the type of statements that the self-defense privilege seeks to protect. Foretich, at 1560 (“To be responsive, a reply’s contents must clearly relate to its supposed objective—blinding the initial attack and restoring one’s good name. Statements that simply deny the accusations, or directly respond to them, or express one’s impressions upon first hearing
them are certainly responsive.”); Restatement (Second) of Torts § 594 cmt. k (“The defendant
may publish...the statement that his accuser is an unmitigated liar.”). Further, the statements
8 bors : , The January 4 Statement similarly refers to an earlier statement. Compl. 7 37 (“I am referring to the statement that we made.”’))
11
contain no substantial defamatory material, much less a disproportionate amount. Plaintiff has not alleged to whom the statements were made and thus cannot show that the supposed Maxwell statements were “excessively publicized.” In any event, given the viral circulation of Plaintiff's allegations against Ms. Maxwell, as any cursory internet search can attest, it would be impossible to argue that Ms. Maxwell’s statements were “excessively publicized” relative to the accusations to which they were responsive.
Finally, Plaintiff offers no allegations to support her conclusory assertion that the Statements were made with “malice in the sense of spite or ill will.” To sufficiently plead “actual malice” the plaintiff must set forth “non-conclusory allegations that support a plausible inference of actual malice.” Biro v. Conde Nast, 2014 WL 4851901 at *2. Bare allegations that the defendant knew or should have known that the statements were false is insufficient. Id.” To establish malice, a defamed plaintiff must show...that such malicious motivation was the one and only cause for the publication.” Hoesten v. Best, 821 N.Y.S.2d 40 (1st Dep't 2006). Given the content and context of the Statements, there are no grounds to conclude that a malicious motivation was the cause of their publication. The January 3 Statement concludes that “Miss Maxwell denies allegations of an unsavory nature which have appeared in the British press and elsewhere and reserves her right to seek redress at the repetition of such claims.” Menninger Decl. Ex. E. The clear motivation for the Statement was to deny the allegations and to place British newspapers on notice that they may be sued for repeating Plaintiffs false claims. Nothing in the Statement evinces a sense that it was published out of spite or ill will towards Plaintiff. The Complaint’s repeated use of the word “malice” and “ill-will” are nothing more
than conclusory allegations based on surmise, conjecture and suspicion and do not suffice to
- Also, merely repeating the same conclusory allegation, as done in the Complaint, is equally insufficient. Yuan v. Rivera, No. 96 Civ. 6628 (HB) (LB), 1998 WL 63404, at *5 (S.D.N.Y. Feb. 17, 1998) (“This conclusory allegation, repeated throughout the complaint, falls shy of [stating a claim.]”).
12
establish malice. See Culver v. Merrill Lynch & Co., 94 CIV. 8124 (LBS), 1995 WL 422203, at *6 (S.D.N.Y. July 17, 1995) (“[A] complaint must contain more than conclusory allegations based upon surmise, conjecture and suspicion.’’).
The self-defense privilege thus applies and is reason enough to dismiss the Complaint.
B. The Pre-Litigation Privilege Protects Ms. Maxwell’s Statements
Statements made by attorneys and parties pertinent to good faith anticipated litigation are conditionally privileged.'° Reasoning that “[w]hen litigation is anticipated, attorneys and parties should be free to communicate in order to reduce or avoid the need to actually commence litigation . ..Communication during this pre-litigation phase should be encouraged and not chilled by the possibility of being the basis of a defamation suit.” Front, Inc. v. Khalil, 24 N.Y.3d 713, 720 (N.Y. 2015).'' The Court of Appeals in Khalil expressly declined to apply the “general malice standard” to the pre-litigation privilege. Instead, the court held the qualified privilege is lost only where the party opposing dismissal “proves that the statements were not pertinent to a good faith anticipated litigation.” Jd. The Court of Appeals then upheld the dismissal of a defamation complaint premised upon pre-litigation letters including a demand and cease-and-desist notice because the statements contained in these documents were privileged.
In cases preceding Khalil, New York appellate courts made clear the litigation privilege covers statements made in connection to “pending or contemplated litigation,” Caplan v.
Winslet, 218 A.D.2d 148, 153 (1st Dep’t 1996) (emphasis added), including “all pertinent
0 Colorado law also recognizes a privilege for communications made “in reference to the subject matter of the proposed or pending litigation” and therefore, Ms. Maxwell’s Statements are privileged whether this Court applies New York or Colorado law. See Club Valencia Homeowners Ass’n, Inc. v. Valencia Associates, 712 P.2d 1024, 1027 (Colo. App. 1985) (“The purpose of this privilege...is to afford litigants the utmost freedom of access to the courts to preserve and defend their rights...’).
In England, where all statements except the January 4 Statement one were made, the litigation privilege is broader than in the United States. As Justice Cardozo recognized, there the privilege exists whether the statements are relevant to the judicial proceedings or not. Andrews v. Gardiner, 224 N.Y. 440, 445 (N.Y. 1918).
13
communications among the parties, counsel, witnesses and the court,” regardless of “[w]hether a statement was made in or out of court, was on or off the record, or was made orally or in writing.” Frechtman v. Gutterman, 979 N.Y.S.2d 58 (1st Dep’t 2014) (quoting Sexter v. Warmflash, P.C. v. Margrabe, 828 N.Y.S.2d 315 (1st Dep’t 2007)). In International Publishing Concepts, LLC v. Locatelli, 9 N.Y.S.3d 593, 2015 N.Y. Slip Op. 50049 at *3-4 (N.Y. Sup. Ct. Jan. 15, 2015), letters and emails which detailed likely litigation and an intent to sue were extended the same pre-litigation privilege although sent to two non-parties who were only potentially affected by the litigation or witnesses to it. See also Kirk v. Heppt, 532 F.Supp.2d 586 (S.D.N.Y. 2008) (“The privilege is broad, and embraces anything that may possibly or plausibly be relevant to the litigation.”) (internal citations omitted).
Ms. Maxwell’s 2011 Statement, incorporated by reference into the January 3 Statement, was issued by Devonshires Solicitors in London and explicitly sought to place the British tabloids on notice that litigation against them was forthcoming should they persist in printing Plaintiff's falsehoods. Menninger Decl. Ex. B. The general denial of the first paragraph (“Ghislaine Maxwell denies the various allegations about her that have appeared recently in the media. These allegations are all entirely false.”’) is followed by four paragraphs directly threatening litigation against newspapers:
It is unacceptable that letters sent by Ms. Maxwell’s legal representatives to certain newspapers pointing out the truth and asking for the allegations to be withdrawn have simply been ignored.
In the circumstances, Ms. Maxwell is now proceeding to take legal action against those newspapers.
“T understand that newspapers need stories to sell copies. It is well known that certain newspapers live by the adage, ‘why let the truth get in the way of a good story.’ However, the allegations made against me are abhorrent and entirely untrue and I ask that they stop,” said Ghislaine Maxwell.
14
‘““A number of newspapers have shown a complete lack of accuracy in their reporting of this story and a failure to carry out the most elementary investigation or any real due diligence. Iam now taking action to clear my name,” she said.
Td.
A statement issued by attorneys, asking the newspapers to cease and desist publication of Plaintiff's false allegations, stating an intent to “take legal action against those newspapers,” pointing out the lack of accuracy in reporting and duly diligent reporting, and expressing again an intent to “take[e] action to clear” her name all demonstrate that the statement was “pertinent to good faith anticipated litigation” and should be afforded a litigation privilege. The newspapers were the potential parties to an action for repetition of the falsehoods, not some third-parties unaffiliated with potential claims held by Ms. Maxwell. Cf. Kirk, 532 F.Supp.2d at 594 (statements to malpractice insurance carrier entitled to privilege).
The January 3 Statement, issued by the same spokesperson as the 2011 Statement, likewise represents a statement “pertinent to” anticipated good-faith litigation. Following another general denial (i.e., the “allegations are untrue’), the statement goes on to say that they are “obvious lies” and “should be treated as such and not publicized as news, as they are defamatory. Ghislaine Maxwell’s original response to the lies and defamatory statements remains the same. Maxwell strongly denies allegations of an unsavoury nature, which have appeared in the British press and elsewhere and reserves her right to seek redress at the repetition of such claims.” Menninger Decl. Ex. E. These statements are pertinent to anticipated litigation against the press who was reporting Plaintiff’s falsehoods and should be afforded the same qualified privilege. See Locatelli, supra at *4 (“While such an injunction has not yet been sought, that fact should not be outcome determinative. Rather, it appears to have been intended
at the time that these letters and emails were written...’’).
15
Finally, the January 4 Statement, in response to a request for comment as she left her apartment, “I am referring to the statement that was made,” should be afforded the same privilege as any undefined “statement” to which it referred.
Il. PLAINTIFF FAILED TO PLAUSIBLY PLEAD DEFAMATION
Under either New York or Colorado law, to state a cause of action for defamation, a plaintiff must prove: (1) defendant made a defamatory statement of fact concerning the plaintiff; (2) defendant published the statement to a third party; (3) defendant acted with the requisite fault; (4) the statement was false; and (5) resulting injury to the plaintiff. Kforce, Inc. v. Alden Personnel, Inc., 288 F.Supp.2d 513, 516 (S.D.N.Y. 2003); Zerr v. Johnson, 894 F. Supp. 374, 376 (D. Colo. 1995). Regarding injury, plaintiffs must prove special damages—meaning economic or financial loss—unless the defamation falls within a category of defamation per se. Kforce, Inc., 288 F. Supp.2d at 516; Thai v. Cayre Grp., Ltd., 726 F. Supp. 2d 323, 330 (S.D.N.Y. 2010) (defining special damages). Defamation per se constitutes a statement “which tends to disparage a person in the way of his office, profession or trade.” Id. To be per se actionable, there must therefore be a direct link between the statement and the plaintiff's particular profession. Id.
Although state law applies to the merits of defamation claims, Rule 8 of the Federal Rules of Civil Procedure governs the pleading requirements in federal court. Under Rule 8, defamation allegations must be “simple, concise and direct,” allowing the defendant sufficient notice of the communications complained of to allow the defendant to defend him or herself. Deutsche Asset Mgmt, Inc. v. Callaghan, No. 01 Civ 4426 CBM, 2004 WL 758303, at *12 (S.D.N.Y. April 7, 2004). Importantly, to meet this standard, plaintiff must specify who made the statements, when they were made, to whom they were made and in what context they were
made. Id. 16
Here, the defamation claim is fatally deficient for three independent reasons: (1) when viewed in context, the statements are not actionable defamatory statements; (2) the Complaint does not allege to whom or where the statements were made; and (3) the Complaint lacks either allegations of special damages or facts from which defamation per se could be established. Each of these three faults, standing alone, is sufficient to warrant dismissal for failure to state a claim.
A. Viewed In Context, the Statements are Non-Actionable
The Complaint improperly contains only excerpts of Ms. Maxwell’s Statements, thereby depriving the Court of the ability to adequately determine whether the Statements are actionable. The Supreme Court has long recognized the inherent difficulty in deciding defamation claims given the delicate balance between “the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 325 (1974). On the one hand, the law of defamation is designed to “redress and compensate individuals who suffered serious harm to their reputations due to the careless or malicious communications of others.” Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994). On the other hand, the First Amendment protects “society’s interest in encouraging and fostering vigorous public debate.” Id. (citing Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting)).
Due to the complexity of these competing interests, it is essential for courts to resolve as a matter of law whether the particular words alleged to be defamatory are in fact defamatory— i.e. designed to cause reputational injury. See Celle v. Fillipino Reporter Enters, Inc., 209 F.3d 163, 177 (2d Cir. 2000). To do so, defamatory statements must be considered in the context of the entire communication and the circumstances in which they were written. Jd. at 178; see also Keohane, 882 P.2d at 1299. As one court aptly stated, “Courts will not strain to find defamation where none exists.” Couloute, Jr. v. Rynarz, No. 11 CV 5986 (HB), 2012 WL 541089, at *5
(S.D.N.Y. Feb. 17, 2012). 17
In this case, Plaintiff is essentially asking this Court to “strain to find defamation” based on only snippets of Ms. Maxwell’s January 3 and January 4 Statements provided in the Complaint. See Compl. { 30. Her failure to provide the context within which the Statements were delivered alone warrants dismissal. Dillon v. City of New York, 261 A.D.2d 34, 39-40 (1st Dep’t 1999) (plaintiffs failure to set forth the entirety of the alleged defamatory statement resulted in only vague and conclusory allegations requiring dismissal); Edwards v. Great Northern Ins. Co., No. 03 CV 2947 (NG) (RML), 2006 WL 2053717, at *5 (E.D.N.Y. July 21, 2006) (dismissing defamation claim for plaintiffs failure, among other things, to plead the context in which the statements were made); Wanamaker v. Columbian Rope Co., 713 F.Supp.533, 545 (S.D.N.Y. 1989) (same).
When Ms. Maxwell’s statements are actually viewed in context, it becomes clear why Plaintiff only provided excerpts. The Complaint describes Ms. Maxwell’s Statements as an attack on Plaintiff's honesty and truthfulness and a “concerted and malicious campaign to discredit Giuffre.” Compl. 28, 29. In reality, the statements are far from an attack by Ms. Maxwell. When read in context and as set forth above, it is clear that the January 3 Statement was issued in self defense and in anticipation of good-faith litigation against the news media. The January 3 Statement appears, inter alia, in a telegraph article entitled “Prince Andrew denies having relations with ‘sex slave’ girl.” Menninger Decl. Ex. E. The 12-page article contains denials by Prince Andrew and Alan Dershowitz. Buried among those allegations is the following response by Ms. Maxwell’s spokesman:
The allegations made against Ghislaine Maxwell are untrue. Miss Maxwell strongly denies allegations of an unsavory nature, which have appeared in the British press and elsewhere and reserves her
right to seek redress at the repetition of such old defamatory claims.
18
Menninger Decl. Ex. E, at 2. As discussed above, such a statement, which was unequivocally made in response to repeated reputation-harming allegations, is protected by both the privilege of self-defense and the pre-litigation privilege and therefore is not actionable.
Further, general denials such as the January 3 Statement are not actionable as defamatory statements. See McNamee v. Clemens, 762 F.Supp.2d 584, 601 (E.D.N.Y. 2011) (“general denials of accusations aren’t actionable’’); Independent Living Aids, Inc. v. Maxi-Aids, Inc., 981 F.Supp. 124, 128 (E.D.N.Y. 1997) (epithet “liar,” in context, where it reflects a mere denial of accusations, was personal opinion and rhetorical hyperbole). The context surrounding the January 3 Statement demonstrates it was a general denial made in self-defense and pre-litigation and therefore not actionable as a defamation claim.
Likewise, when viewed in context, it is equally clear that the January 4 Statement is not an actionable statement of fact. The Complaint avers that “Maxwell continued her campaign to falsely and maliciously discredit” Plaintiff “when a reporter on a Manhattan street asked Maxwell” about the allegations and she “responded” by saying “I am referring to the statement that we made.” Compl. § 37. It also alleges that the New York Daily News "published a video" of “this response by Maxwell.” Yet the video found on the New York Daily News website of this encounter reveals substantially more context. See supra at__. First of all, Ms. Maxwell is accosted by the reporters as she emerged from an apartment on East 65th Street. The video is entitled accurately enough “Ghislaine Maxwell declines comment on allegations she is a
9912
madam.”’~ The filmed encounter begins with Ms. Maxwell stating that “I wish you a happy new
year and thank you so much.” A voice then inquires, “so you’re basically not commenting, is
i Available at http://www.nydailynews.com/news/world/alleged-madame-accused-supplying-prince- andrew-article-1.2065505 (accessed November 30, 2015).
19
that...”; her response, “I’m referring to the statement that was made,” is barely audible. Another person questions, “is any of that true?” Ms. Maxwell then responds “C’mon guys” and walks away.
The argument that the January 4 Statement is actionable defamation borders on frivolous. There are not even any questions which give the “interview” context, i.e., what the reporters said just before the camera clip begins, what “allegations” Ms. Maxwell was “responding” to. Certainly nothing in the context of the video mentions Plaintiff or her allegations. Any reasonable listener would understand the verbal video clip together with the heading “Ghislaine Maxwell declines comment on allegations she is a madam” to be just that—a declination to comment. The “statement that was made” is not even contextualized. Which statement? Made when and to whom? Even the Complaint characterizes the verbal words as a “response” to questions from a reporter. Even a strained reading of the allegations concerning the January 4 Statement does not demonstrate a defamatory meaning of and concerning Plaintiff, and any claim based thereon should be dismissed."
B. The Complaint Does Not Allege to Whom, Where or in What Manner the January 3 Statement was Made
It is long settled that “[f]ailure to state the particular person or persons to whom the allegedly slanderous or libelous comments were made as well as the time and manner in which the publications were made warrants dismissal.” Hawkins v. City of New York, No. 99 Civ. 11704 (RWS), 2005 WL 1861855, at *18 (S.D.N.Y. Aug. 4, 2005); see also Cruz, 2012 WL 4513484, at *4 (dismissing a defamation claim for failure to specifically allege the “when, where
or in what manner the statements were made’).
13s : 3,3 : : Without the January 4 Statement to the New York Daily News reporter, it is entirely unclear that this case has any nexus to the United States, much less New York.
20
In Hawkins, the Complaint generally alleged that the defendants made false representations of fact about the plaintiff to “other supervisors of [p]laintiff with [the] NYPD.” Id. This Court held that by not identifying the individuals to whom the statement was allegedly made the claim was “fatally defective.” Id. Likewise, in J.P.R. Cafeteria, Inc. v. Kingsborough Community College of City University of New York, 847 N.Y.S.2d 902 (N.Y. Sup. Ct. Aug. 21, 2007), the defendant alleged in a counterclaim that the plaintiff made libelous and slanderous statements to employees and agents of his employer and the media. Id. at *5. Again, because the counterclaim did not identify the particular persons to whom the defamatory comments were made, it was dismissed. Id.; see also Cruz, 2012 WL 4513484, at *4 (dismissing a complaint containing conclusory allegations that defendant made statements that ended up in the headlines and quoted in the media). Here, as in Hawkins, the Complaint does not allege to whom the January 3 Statement was made. Instead, it merely contains the general allegation that it was “issued...to the media and public.” Compl. § 30. This precedent establishes that merely identifying a group or organization to whom the statement was published, such as “the media” or “the NYPD” is insufficient. Thus, because the Complaint only identifies the “media and public” as the recipient of the January 3 Statement, the pleading is insufficient.
C. Plaintiff Has Not Properly Pled Special Damages
a. The Alleged Defamatory Statement is Not Defamatory Per Se
Plaintiff also fails to properly establish either defamation per se or special damages. The pleading is therefore defective. Thompson v. Bosswick, 855 F.Supp.2d 67, 77 (S.D.N.Y. 2012); Kforce, 288 F.Supp.2d at 516. Defamation per se is limited in scope and is only applicable when there is a direct link between “a particular profession and a particular disreputable vice of that profession.” Id. While explaining defamation per se, this Court quoted the following passage
from Prosser and Keeton on the Law of Torts § 112, at 791 (Sth ed. 1984): 2
[I]t is actionable without proof of damage to say of a physician that he is a butcher..., of an attorney that he is a shyster, of a school teacher that he has been guilty of improper conduct as to his pupils, of a clergyman that is the subject of scandalous rumors, of a chauffeur that he is habitually drinking, of a merchant that his credit is bad or that he sells adulterated goods, of a public officer that he has accepted a bribe or has used his office for corrupt purposes...since these things discredit [one] in his chosen calling.
The New York Court of Appeals, elaborating on this same concept, further noted that the defamatory “statement must be made with reference to a matter of significance and importance for [the plaintiff's profession, trade or office], rather than a more general reflection upon the plaintiff's character or qualities.” Liberman v. Gelstein, 80 N.Y.2d 429, 590 (N.Y. 1992). “The statement must be targeted at the specific standards of performance relevant to the plaintiffs business and must impute conduct that is ‘of a kind incompatible with the proper conduct of the business, trade, profession or office itself.’” Thompson, 855 F.Supp.2d at 77 (quoting Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F.Supp.2d 489, 550 (S.D.N.Y. 2011)).
Here, it is impossible to determine a link between the January 3 or 4 Statements and Plaintiff's profession, because no profession is alleged. The only reference in the Complaint to Plaintiffs “profession” is in paragraphs 24 and 25 where she describes incorporating the Victims Refuse Silence, Inc. organization. Importantly, she allegedly incorporated that organization on December 23, 2014, approximately 10 days before the January 3 Statement. Compl. { 24. Further, other than stating the intent and goals of this newly incorporated organization, she has not described any actions taken by the organization or provided any indication that the organization is currently operating nor detailed her “occupation” within the organization.
Given the close temporal proximity between the creation of Plaintiff's organization and
the issuance of the Statements, it strains credulity to suggest that Ms. Maxwell even knew about
22
the organization or Plaintiff's supposed profession attendant thereto. If Ms. Maxwell had never heard of Victims Refuse Silence—which is likely—it is equally impossible to suggest that she directed any statements towards Plaintiff's role therein. Even accepting Plaintiff's allegations as true, the January 3 Statement is at most a general reflection upon Plaintiffs character or qualities. More accurately, the Statement can only be characterized as a reaction to certain specific allegations made by Plaintiff towards Ms. Maxwell. According to clear precedent set by this Court and the New York Court of Appeals, the Statement therefore is not defamation per se.
b. Failure to Allege Special Damages Warrants Dismissal
Because the January 3 Statement is not per se actionable even accepting the Plaintiff's allegations as true, the Court then must scrutinize the Complaint for allegations of special damages. Special damages are generally considered financial or economic damages that are “causally related to the alleged acts.” Hawkins, 2012 WL 4513484, at *19. Special damages “must be fully and accurately stated, with sufficient particularity to identify actual losses...The particularity requirement is strictly applied, as courts will dismiss defamation claims for failure to allege special damages with the requisite degree of specificity.” Thai v. Cayre Group, Ltd., 726 F.Supp.2d 323, 330 (S.D.N.Y. 2010). Plaintiff has not and cannot claim special damages as a result of Ms. Maxwell’s alleged defamatory statements. Instead, her allegations of damages are vague and conclusory and provide no factual basis to establish a causal connection to the alleged defamation. See Compl. { 19 (“Maxwell’s false statements have caused, and continue to cause, Giuffre economic damage...”). This obvious pleading defect also mandates dismissal.
CONCLUSION
For the reasons stated above, the Complaint fails to state a claim for which relief
can be granted. Ms. Maxwell therefore respectfully requests that this Court dismiss the
23
Complaint with prejudice. In addition, in light of Plaintiff’s failure to show any factual basis for her claim, Ms. Maxwell requests permission to move for attorneys’ fees for the filing of this motion and any subsequent action necessary to prevent from further attempts by Plaintiff to direct additional unfounded and legally insufficient claims against Ms. Maxwell.
Dated: November 30, 2015.
Respectfully submitted,
s/ Laura A. Menninger
Laura A. Menninger, Esq.
HADDON, MORGAN AND FOREMAN, P.C. 150 East 10" Avenue
Denver, CO 80203
Phone: 303.831.7364
Fax: 303.832.2628
Imenninger @hmflaw.com
Attorney for Ghislaine Maxwell
CERTIFICATE OF SERVICE
I certify that on November 30, 2015, I electronically filed this Ghislaine Maxwell’s Memorandum of Law in Support of her Motion to Dismiss with the Clerk of Court using the CM/ECF system which will send notification to the following:
Sigrid S. McCawley
BOIES, SCHILLER & FLEXNER, LLP
401 East Las Olas Boulevard, Ste. 1200 Ft. Lauderdale, FL 33301
smccawley @bsfllp.com
s/ Brenda Rodriguez
Brenda Rodriguez
24
Case 1:15-cv-07433-RWS Documenti16 Filed 12/01/15 Page 1 of 2
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
sca Ba X VIRGINIA L. GIUFFRE, PLAINTIFF, Vs 15-cv-07433-RWS GHISLAINE MAXWELL, DEFENDANT. ree See een ee eee x
DECLARATION OF LAURA A. MENNINGER IN SUPPORT OF DEFENDANT GHISLAINE MAXWELL’S MOTION TO DISMISS COMPLAINT
I, Laura A. Menninger, declare as follows:
1. I am an attorney at law duly licensed in the State of New York and admitted to practice in the United States District Court for the Southern District of New York. Iam a member of the law firm Haddon, Morgan and Foreman. P.C., counsel of record for Defendant Ghislaine Maxwell (“Maxwell”) in this action. I respectfully submit this declaration in support of Maxwell’s Motion to Dismiss the Complaint filed in this action by Plaintiff Virginia L. Giuffre.
2 Attached hereto as Exhibit A is a true and correct copy of the article, “Prince Andrew and the 17-year-old Girl His Sex Offender Friend Flew to Britain to Meet Him,” Daily
Mail.Com, Mar. 2, 2011, available at http://www.dailymail.co.uk/news/article-1361039/Prince-
Andrew-girl-17-sex-offender-friend-flew-Britain-meeet-him.html (last visited Nov. 30, 2015).
Case 1:15-cv-07433-RWS Document16 Filed 12/01/15 Page 2 of 2
3. Attached hereto as Exhibit B is a true and correct copy of “Statement on Behalf of
Ghislaine Maxwell,” PR Hub, Mar. 9, 2011, available at http://pr.gaeatimes.com/statement-on-
behalf-of-ghislaine-max well-42551/ (last visited Nov. 30, 2015).
4. Attached hereto as Exhibit C is a true and correct copy of Order Denying Petitioner’s Motion to Join Under Rule 21 and Motion to Amend Under Rule 15, Jane Doe 1 and Jane Doe 2 v. U.S.A., Case No. 08-cv-80736-KAM (S.D. Fla. Apr. 15, 2008) (Doc. No. 324).
a, Attached hereto as Exhibit D is a true and correct copy of Supplemental Order, Jane Doe 1 and Jane Doe 2 v. U.S.A., Case No. 08-cv-80736-KAM (S.D. Fla. Apr. 15, 2008) (Doc. No. 325).
6. Attached hereto as Exhibit E is a true and correct copy of “Prince Andrew denies having relations with ‘sex slave’ girl,” The Telegraph, Jan. 3, 2015, available at
http://www.telegraph.co.uk/news/uknews/theroyalfamily/11323872/Prince-Andrew-
denies-having-relations-with-sex-slave-girl.html (last visited Nov. 30, 2015).
I declare under penalty of perjury that the foregoing is true and correct. Executed
on November 30, 2015 in Denver, Colorado.
s/ Laura A. Menninger Laura A. Menninger
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 1 of 26
EXHIBIT A
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 2 of 26
Prince Andrew and girl, 17, who sex offender friend flew to Britain to meet him | Daily Mail Online
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Prince Andrew and the 17-year-old girl his |»s+/ we [eneryourseaen | sex offender friend flew to Britain to meet
him
By SHARON CHURCHER
UPDATED: 08:02 EST, 2 March 2011
101
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+ Virginia Roberts reveals she is ‘Jane Doe 102’ In Jeffrey Epstein case
« Mother-of-three spent four years as millionaire's personal masseuse
« She describes being flown across world to meet Prince Andrew
- Epstein trained her ‘as a prostitute for him and his friends’
As the UK's special representative for international trade, the Duke of York holds an important position, requiring sound judgement and widespread respect.
But those qualities have been thrown into question since photographs of Prince Andrew with his billionaire financier friend Jeffrey Epstein, a convicted child-sex offender who was jailed for 18 months for soliciting underage prostitutes, appeared last weekend,
Today, however, even more serious doubts are cast on his suitability afer a woman at the centre of the Epstein case revealed to The Mail on Sunday that she had, as a 17-year-old employed by Epstein, been flown across the world to be introduced to the Prince,
hitodAwww.dailymail.co.uk/news/article- 1361039/Prince-Andrew-girl- 17-sex-offender-friend-flew-Britain-meet-him html
Firat meeting: Prince Andrew puts his arms around 17-year-old Virginia, centre
On one of those occasions Virginia Roberts was subsequently pald $15,000 (£9,400). Her shocking account of her four years as Epstein’s personal masseuse is supported by court decuments, an eyewitness, photographs and flight details of Epstein’s private jets.
One picture, said to have been taken by Epstein during Andrews first encounter with the girl in March 2001 and published today by The Mail on Sunday, shows the Prince with his arm around her waist.
This is not the first time the Duke of York’s judgment and choice of associates have been questioned. He appears to relish the company of super-rich off billionalres from the Middle East, North Africa and the former Soviet Union.
The peculiar sale of his former marital home to a Kazakh businessman for £15 million after it had languished unsoki for five years at £12 million has never been satisfactorily explained.
In the recent leak of American diplomatic cables it was revealed that he had criticised an official corruption investigation into the huge ALYamamah arms deal between Britain and Saudi Arabia, while he Is also sald to be close to Saif Al-Islam Gaddafi, son of the beleaguered Libyan president, and may have had a role in the early release of Lockerbie bomber Abdelbaset Al Megrahi.
But ft is Andrew's friendship with Epstein, whom Wh j | eon th e streets I ,
he has known since at least 2000, and with Epstein’s confidante Ghislaine Maxwell, daughter sl e pt with men for money. I was a
of the late disgraced newspaper baron Robert paedophile’s dream
Maxwell, that gives most concern.
He was first seen with the pair on holiday in Thailand, and was pictured cavorting with Ghislaine at a Halloween fetishthemed party in Manhattan,
The photograph that appeared last weekend shows the prince strolling through Central Park with 58-year-old Epstein. Andrew was said to have spent four days at his New York mansion in December, when he was joined by other distinguished guests, induding Woody Allen, at a dinner.
It is by no means the first New York soiree Andrew has attended as Epstein’s guest.
A lengthy profie of the financier in Vanity Fair magazine some years ago reported that Andrew was a quest at a cocktail party thrown by Epstein and Maxwell packed with young Russian models, ‘Some guests were horrified,‘ said the article's author, Vicky Ward,
it should not be forgotten that Epstein Is a registered sex offender afer recently completing his
Prince Andrew and girl, 17, who sex offender friend flew to Britain to meet him | Daily Mail Online
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httovAwww.dailymail.co.uk/news/article- 136103%Prince-Andrew-girl- 17-sex-offender-friend-flew- Britain-meet-him htm]
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 4 of 26
Prince Andrew and girl, 17, who sex offender friend flew to Britain to meet him | Daily Mail Online
sentence for offences relating to child prostitution.
However, he avoided trial on more serious charges that carried a potential life sentence. And no one reading The Mail on Sunday's interview with the woman who was prepared fo testify against him can be in any doubt of the seriousness of the charges.
Epstein, a Wail Street money manager who once counted Bill Clinton and Donald Trump among his friends, became the subject of an undercover investigation in 2005 after the stepmother of a 14-year old girl claimed she was paid $200 (£125) to give him an ‘erotic massage’.
The subsequent FBI probe uncovered at Jeast 20 girls levelling sexual allegations against him. Eventually, Epstein struck a ‘plea bargain’ with prosecutors ~ a practice not permitted under British law— under which he was allowed to plead guilty to two relatively minor charges.
Police claim that his donations to politidans and his ‘dream team’ of influential lawyers deterred prosecutors from bringing more serious charges of sex-tralicking. The deal certainly kept the names of alot of Epstein’s famous friends out of an embarrassing court case.
However, an unusual part of the agreement was that Epstein’s alleged viclims were allowed to bring civil proceedings against him.
He has so far made 17 out-of-court settlernents, and some cases are ongoing. One of these girls was to have been 2 key wilness for ihe prosecution had the case gone to irial. She was just 15 years old when she was drawn into Epstein's exploitative world in 1998.
in ber civil writ against him, under the pseudonym Jane Doe 102’ she alleged that her duties included being ‘sexually exploited by Epstein’s adult male peers including royalty’.
Now, horrified by the evidence of Epstein and Andrew enjoying each other's company in New York, Jane Doe 102 has agreed to waive ber anonymity and ell for the first time her deeply disturbing story.
Her real name is Virginia Robaris and she now lives in Australia, where she is a happily married mother of three.
Over the course of a week during which she spoke at length to The Mail on Sunday, she appeared sometimes vulnerable, and sometimes steely, but always quietly resolute and consistent.
Revisiting evenis from a past that she had hoped she had left behind, Virginia occasionally buried her face in. her hands.
Some recollections ~ and, for reasons of taste, not all the details can be included here — caused her to flush with shame. 'l’m telling you things that even my husband didn't know,’ she said.
Virginia, who has undergone counselling to try to come-to terms with her past, is honest about her initiation into Epstein’s depraved world.
She was a troubled teenager, whose slender figure, delicate comploxion, hesitant voice and soulful blue eyes made her look young for her years.
Bom in Sacramento, California, in August.1983, Virginia spent her early years on a small ranch an the West Coast of America.
This seemingly idylic childhood ended when she was sexually Molested by a man close to her farnily.
The fallout from that led to her parents temporarily splitting up. Blarning herself, Virginia began fo get into trouble Aged 71, she was sent to live with an aunt but repeatedly ran away.
Living on the streeis, she was beaten up and slept with at feast two older men in return for food, ‘I was a paedophile’s dream,’ she says.
Three years tater, she was reunited with her family and started a new life with her father who had moved to Palm Beach,
Florida, where he was maintenance manager at Donald Trump's country club, Mar-a-Lego. Virginia got a part-time job as a changing room assistant ~which is where, soon after her 15th birthday, she met Ghislaine Maxwell, who invited her to work as Epstein’s personal masseuse.
A new Hite: Virgina, now a mother-of-three, In Austral
‘bwas wearing my uniform — a white miniskirt and a skin-light white polo iop ~ when | was approached by Ghislaine, Virginia says.
4 told her | wanted fo become a masseuse and she said she worked for a very wealthy gentleman who was looking for a tavelling masseuse.
I'd get training and be paid well. Virginia’s father gave his blessing, beheving his daughter was being handed the opportunity to learn a skill and to work for a wealthy and respectable emplayer.
He drove her io Epstein’s pink mansion on the Palm Beach waterfront — he also owns a nine-storey home in New York, the cily's biggest private residence: a 7,500-ace ranch called Zorro’ in New Mexico and Lille Saint James, a private 70- acre atoll in the US Virgin tslands.
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nittp:/ www dailymail,co.uk/news/article- 1361039/Prince-Andrew-girl- 17-sex-offender-friend-flew-Britain- meet- him. hiral
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 5 of 26
Prince Andrew and girl, 17, who sex offender friend flew to Britain to meet him | Daily Mail Online
Virginia says: ‘Ghisiaine said | was to start immediately and that someone would drive me home.
My father Jeft and | was told to go upstairs.’ She was led by another woman through Epstein’s bedroom into a massage room where he lay face down naked on a table.
He staried {o interviewed Virginia. This was unconventional, but Viginia had no suspicions. Presumably, she thought, this was how the wealthy conducted their business.
Epstein elicited the information that Virginia had been a runaway, and was no longer 6 virgin.
Virginia was then told to start massaging Epstein, under the instructions of the woman who had shown her in. The massage quickly developed into a sexual encounter.
Virginia was uncomfortable, but reluctant te deny such important people, My face was red with embarrassment,’ she says. ‘But | felt under immense pressure to please them.
The whole time it was going on, they were promising me the world, that I'd travel with Jeffrey on his private jet ond have a well-paid profession.’ Afterwards, she was given two $100 bills and told to return the next day.
That was the beginning of the four years she spent with Epstein. For three of those years, she was under Florida’s age of consent, which is 18.
Virginia was fascinated by his life story; the son of a humble New York City parks worker, he was a teacher before becoming a Wall Street broker and friends with the upper echelons of the political, financial and academic establishment,
As a confused teenager, Virginia easily fell into the practice of sexually gratifying him for money. He guaranteed her a minimum of $200 each time she gave him what he called an’eratic massage.’
Virginia said: ‘| would always receive the money immediately. He would give me the cash from a wad he carried in a black duffel bag or an assistant paid me.
‘And, because of the way Epstein had warped her sensibilities, every time she took the cash, Virginia felt even more indebted to him. Secretly, he was also preparing her for an even more disturbing role.
‘Basically, | was training to be a prostitute for him
and his friends who shared his interest in young Epstei n had trained me girls,’ she says: ‘After about two years, he started
to ask me to “entenain’” his friends.’ to do whatever men
it started when Epstein called Virginia at the Pam Wanted. I told myself | Beach apartment he had rented for her. « was special
She recalls: ‘He sald, “I've got a good friend and} need you to fly to the island to- entertain him, massage him and make him fee! how you make me feel.”
He didn’t spell out what | had to do. He didn't have to. ‘He'd trained me to do whatever a man warited, | was shocked but } told mysell he was sharing me around because he trusted me and | was special,
i was worried, but ] would do-anything lo keep Jeffrey happy and fo keep my place as his number one girl.
He would keep telling me how lucky | was with the life | was leading and the money | was making. It was easy to fall into his grasp.
“The way Il usually worked was {'d be sent io meet a man on the private Isiand Jefilrey owned in the Caribbean. or at his ranch in New Mexico. which was really isolated.’ She was ‘given’ to men ranging in age from their 40s fo their 60s.
They included a well-known businessman (whose pregnant wife was asleep in the next room). a world-renowned scientist, a respecied Sberal politician and a foreign head of state.
None appeared to think the arrangernent was unusual, Virginia says there were many other girls jn Epstein’s circle and that she was paid extra money to help recruit them.
‘They would lounge around the Palm Beach house, the ranch or the island, nude or topless,’ she says. ‘But | was one of the very few he trusted as “special” and chosen to “entertain” his friends.”
Virginia took the sedative Xanax to detach herself from sordid reably. ‘il was an escape drug,’ she says. ‘It made me calm and helped me forget about what | had to do, | was up to eight pills a day.’
Epstein had no objection te Virginia's use of prescription drugs, no doubi recognising that they made her even more malleable. ‘I didn't want to go back to the life I'd had before’ she says.
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httpyAwww.dailymail.co.uk/news/arlicle- 1361039/Prince-Andrew-ginl- 17-sex-offender-friend-flew- Britain-meet-him html
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 6 of 26
Prince Andrew and girl, 17, who sex offender friend flew to Britain to meet him | Dally Mail Online
‘That made me totally obedient.’ Despite the fact that Epstein was, essentially, her pimp, this Efe now seemed normal to Virginia. || felt that he and Ghislaine really cared for me,’ she sald.
‘We'd do family things, like watch Sex And The City and eat popcorn, ‘A lot of it was very glamorous, | met famous friends of his such as Al Gore and Heidi Klum and Naomi Campbell. He introduced me as his “travelling masseuse.”
Some people mistook me for his daughter. “Nhen we were in New York or Palm Beach, Ghislaine and | would shop all day,
Jeffrey bought me jewellery = diamonds were his favourite — and wonderful furniture. He was paying me very well because I'd give him sex whenever he wanted it’
She was, she says, delighted when Epstein invited her to accompany him on a six-week trip in 2001.
‘He said we'd be going to Europe and North Africa to meet architects and interior decorators because he wanted to redo his New Mexico house,
| threw my arms around him and gave him a peck on the cheek,’ They flewto Paris, then Spain, then Tangier.
Finally, they went to London. ‘After we landed, we drove straight to Ghislaine’s house,' says Virginia. ‘I was given.a small upstairs bedroom, The following morning, Ghislaine came in.
She was chirpy and jumped on the bed saying, “Get up, sleepyhead, You've got a big day. We've gat to go shopping. You need a dress as you're going to dance with a Prince tonight.”
‘She sald | needed to be “smiley” and bubbly becatise he was the Queen’s son. Ghislaine arid | went to Burberry, where she bought me a £5,000 bag, and to a few other designer
stores where we bought a couple of dresses, a pair of embroidered jeans and a pink singlet, perfume and make-up,
We got back to Ghislatne’s house at around 4pm andl ran straight upstairs to shower and dress.
When E went downstairs, Ghislaine and Jeffrey were in the lounge. There was a knock at the door. Ghislaine led Andrew in and we kissed each other on the cheek. ‘Ghislaine served tea from a sno pot and biscuits, She knew Sarah Ferguson and they talked fondly about Andrews ‘daughters,
Then Ghislaine asked Andrew how old he thought I was and he guessed 17 and they all laughed. Ghislaine made a joke that 1 was getting too old for Jeffrey.
She said, "He'll soon have fo trade her in.” It was wadely known that he liked young girls.’ The four of them went out to dinner and on to Tramp.nightclub where, she says, Andrew danced with her.
‘After about an hout-and-a-half, we drove back to Ghislaine’s.
All of us went upstairs and | asked Jeffrey to snap a picture of me with the Prince, | wanted something to show my Mom, Ghislaine and Jeffrey left us after that, and laler Andrew left.
‘In the morning, Ghislaine said, “You did well, He had fun”. We flew straight back to the States.’ The Mail on Sunday has confirmed that the tycoon’s jet flew to Paris on March 6, 2001, continuing to Granada, Tangier and London, before returning to New York.
On the last Jeg.of the trip, Virginia was paid about $15,000 (£9,400) by Epstein, ‘It was amazing money, more than I'd ever made on a trip with him before,
He didn’t say there was any special reason, but | felt like I'd done everything he wanted. He was Very pleased,’
There is no suggestion that there was any sexual contact between Virginia and Andrew, or that
Andrew knew that Epstein paid herio have sex help me forget what I had to with his friends,
do. It made me calm. However, the Prince must have been aware of Epstein's conviction when he stayed with him in New York in December.
Virginia says she met Andrew for a second time around Easter 2001 at Epstein's Manhattan mansion.
‘When I got to the mansion, | was told, “Get ready, You are meeting someone in the office” - which is what they called the library. Andrew was sitting there in a big leather armchair.
Counselling: Virginia at her mother's home at Pakn Beach #11998
I took eight pills a day to
Ghislaine had just given him a present, a big toy that was his Spitting Image puppel. ‘He was smiling ear-lo-ear. Ha looked like a kid whose parents were taking him to Disney World.
A beautiful girl called Johanna Sjoberg who worked for Jeffrey was sitting on Andrew's knee.
Ghislaine guided me over to Andrew and | think he recognised me, though I don’t know if he remembered my name,
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‘Viove you all: Zayn fiskk breaks month long Twitter sBence as he thanks fans in first tweets since quitting One Direction He's gone solo
Berets
Debkghtod Harper Beckham grins broadly at LAX airport white in the arms of her doting dad David. with her three brothers in tow David with his brood
hitovAwww dailymail.co.uk/news/article- 1361039Prince-Andrew-girl- 17-sex-offender- friend flew- Britain-meet-him.htmi
Beckhams win batty te stay cool David and Victoria got go ahead to install atr-con to five bedrooms, gym and wine cellar at thelr $47 migion mansion
Snakeskin on a panel Lady Gaga alithers into LAX is reptile print coat. with her two precious pupples In tow She knows how to stand out of a crowd
Rita Ors goes from casual te dam as sho shanges out of patchwork jeans and Into a lecy black dress for Bye TY performance Brigsh singer in NY
Kolly Clarkson hits the AGM Awards ina figurs« hagging floral dress as she presents the Milbstone prize te her ‘egendary’ mathor-in« law Reba McEntire
Sho's a tineless beauty! New mother Binks Lively looks stunning ina scarkt gown as she attends The Age Of Adaline’s NYC premiere
Organtser: Ghislaine Maxwoll looks on as Andrew put his arm around Virginia. Robort Maxwell's daughter
invited her te work as Epstein’s personal masseuse soon after her 15th birthday Blake Lively hits her
act te preenneiont movie's after-party ina
We kissed on the cheek and Ghislaine placed me on his other knee,’ Johanna spoke to The Mail on a aera se
Sunday three years ago about this incident, which took place when she was 21. Reynolds jokes that ho's She sald: ‘Ghistaine put the puppet's hand on Virginia's breast, then Andrew put his hand on my a of her onscreen breast. Itwas a great joke. Everybody laughed.’ After this, Virginia was paid, by Epstein, around ve interes)
$400 (£250)." cca
She met Andrew for the third and final time on Epstein's Caribbean island, Lite Saint James, cal ae Storgio Virginia was never under the British legal age of consent when she met Andrew. She was 17 during Arman! says women the first two encounters and 18 at the third, should look towards
Cate Blanchett for
By now, however, Epstein, had started to hint inspiration about
that she was getting ‘too old’ for him. growing old gracefuly But during one trip to the island, Epstein and
Ghislaine made their most astonishing The world's her oyster: proposition, and one which repulsed her. ‘They pea oe cade said Jeffrey wanted me to have his child,’ she cee ise 7 sho ariloe says. in LA... following
retiremant from catwakk
‘They said | was part of their family and Iwas modaifing
beautiful,young, loyal and nurturing and woukd be a great mother,
/ First class departure! They said | woukl have to sign a contract aoojueth Pahrow poke relinquishing rights to the chiki and consenting city chic In striped
to Jeffrey having as many relationships as he aweater and cropped
jeans as she jets out of
liked. In return | would have my own mansion in New York
Palm Beach and a large monthly payment, a
percentage of his income,’ Seen
This, finally, was a wake-up call to Virginia and Firat lady of try! she. began to see the way in which she had Bede Lamsbant anger been groomed. atthe AGMAwardsin 4 ‘lt was a smack in the face,’ she says. ‘I finally ee as a
tealised this wasn’t ever going to be a real relationship but | knew if | refused, I'd be thrown back on the streets, So I said, “I'm too young. | wantio get my massage credentials, then maybe we'lldo it’,
The tycoon took her at her word and, for her
pack of country’s biggest names
Hotel Hell! Gordon Ramsay reveals he caught hal fice from
49th birthday in August 2002, flew her to eae Thailand where he enralled her in a massage daughter course, Celebrity chefs woes Shortly after arriving there, she met an
Beck to schoak
Australian martial arts expert called Robert. They fell in love and, just ten days later, married
P heads back home to in a Buddhist ceremony. England with his family
‘| called Jeffrey and told him I'd fallen madly in inna following the ‘beat love,’ Virginia says. ‘I was hoping he’d be Easterever delighted, But he said, “Have a nice fife,” and hung up on me.’ The couple now have two sons, aged Hung out with Atist pats five and four, and a daughter who recently turned one.
Brooklyn Beckham, 16,
http ww.dailymail.co.uk/news/article- 1361039/Prince- Andrew-girl- 17-sex- offender-friend-flew-Britain-meet-him him!
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 8 of 26
Prince Andrew and girl, 17, who sex offender friend flew to Britain to meet him | Daily Mail Online
‘The first few months afier | married Robert were the worst,’ she says. ‘I couldn't bring myself to tell him much. No man wants to know his wife has been traded out.
‘| felt very alone. | was having panic attacks and seeing a psychiatrist and was on anti-depressants.
‘ Virginia was beginning to put her Epstein days behind her when, three years ago, she was phoned by the FBI,
‘They said they had found photos of me at Jeffrey's Palm Beach house,’ she says, ‘(Epstein had] hidden cameras watching me the entire time even when I was in the bathroom, | was so embarrassed.
‘| told the FBI that my true purpose was sexual. They told me everything he did was Illegal because | was under age.' (The age of consent in Florida is 18).
"They sald that if it had to go to trial, they'd need me because Id lived with him and that made me a key witness, | was very afraid, because he had so much power, but eventually | agreed to testify,
| was glad he'd finally been found out. He shoukin't be hurting other girls. Following Epstein’s arrest, investigators are believed to have found a list of men’s names on his computer and asked him whether they had been ‘treated’ to sexual encounters with his menage of minors.
‘He took the Fifth Amendment, refusing to answer, indicating that if he were to answer the question, it could be incriminating,’ a source told The Mail on Sunday,
Epstein struck a deal resulting in what commentators characterised as a ‘slap on the wrist’ for him, and ended up serving 13 months of his sentence, much of it in a Eberal work-release programme Lawyer Brad Edwards, who represented several of Epstein’s victims, said: ‘Rather than punish him the way they would an average Joe, they sent a dear message that with enough money and power and influence, the system can be bought,’
Virginia was spared her the humiliation of having to go before a jury, and has kept her feelings bottled up until last weekend's photograph of Andrew with Epstein triggered distressing memories,
Virginia says: ‘I am appalled. To me, it’s saying, “We are above the law.” But Jeffrey Is a monster,’ Last night, neither Epstein, Ghislaine Maxwell nor Prince Andrew would comment on Virginia’s story.
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Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 9 of 26
EXHIBIT B
c 0/43
Cas Statement on ase TAR hi
33-RWS Pocument 16-1 Filed 12/01/15 Page 10 of 26
aine Maxwell Page | of 2 Share this PR Hub © Subscribe by Email... page ‘Breallag News | Entertainment tL Sains 1B Business | Polities I Science ~ TeAhtioloiay Odd News i Health | Law More
Statement on Behalf of Ghislaine
Maxwell
BY DEVONSHIRES SOLICITORS, PRNE WEDNESDAY, MARCH 9, 2011
LONDON, March 10, 2011 - Ghislaine Maxwell denies the
various allegations about her
that have appeared recently in the media. These allegations
are all entirely false.
It is unacceptable that letters sent by Ms Maxwell's legal representatives to certain newspapers pointing out the truth
and asking for
the allegations to be withdrawn have simply been ignored.
In the circumstances, Ms Maxwell is now proceeding to take
legal action against those newspapers.
"IT understand newspapers need stories to sell copies. It is well known that certain newspapers live by the adage, "why
let the truth get
in the way of a good story." However, the allegations made
against me are
abhorrent and entirely untrue and | ask that they stop," said
Ghislaine Maxwell,
"A number of newspapers have shown a complete lack of
accuracy
in their reporting of this story and a failure to carry out the
most
elementary investigation or any real due diligence. I am now
taking action to clear my name," she said.
Media contact:
Ross Gow
Acuity Reputation Tel: +44-203-008-7790 Mob: +44-7778-755-251
Email; ross@acuityreputation.com
Media contact: Ross Gow, Acuity Reputation, Tel: +44-203- 008-7790, Mob: +44-7778-755-251, Email: ross at
acuityreputation.com
: Filed under: Government and Policy, Law, Media
Tags: Devonshires Solicitors, London, March 10, United Kingdom
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http://pr.gaeatimes.com/statement-on-behalf-of-ghislaine-maxwell-4255 |/
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EXHIBIT C
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO.:08-CV-80736-KAM JANE DOE 1 and JANE DOE 2, Petitioners, vs. UNITED STATES OF AMERICA, Respondent.
/
ORDER DENYING PETITIONERS’ MOTION TO JOIN UNDER RULE 21 AND MOTION TO AMEND UNDER RULE 15
This cause is before the Court on Jane Doe 3 and Jane Doe 4’s Corrected Motion Pursuant to Rule 21 for Joinder in Action (“Rule 21 Motion”) (DE 280), and Jane Doe | and Jane Doe 2’s Protective Motion Pursuant to Rule 15 to Amend Their Pleadings to Conform to Existing Evidence and to Add Jane Doe 3 and Jane Doc 4 as Petitioners (“Rule 15 Motion”) (DE 311). Both motions are ripe for review. For the following reasons, the Court concludes that they should be denied.
I. Background
This is an action by two unnamed petitioners, Jane Doe 1 and Jane Doe 2, seeking to prosecute a claim under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. (DE 1). Generally, they allege that the respondent Government violated their rights under the CVRA by failing to consult with them before negotiating a non-prosecution agreement with Jeffrey Epstein, who subjected them to various sexual crimes while they were minors. (Id.). Petitioners initiated
this action in July 2008. (id.).
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On December 30, 2014, two other unnamed victims, Jane Doe 3 and Jane Doe 4, moved to join as petitioners in this action pursuant to Federal Rule of Civil Procedure 21. (DE 280). Petitioners (Jane Doe | and Jane Doe 2) support the Rule 21 Motion. (Id, at 11). Jane Doe 3 and Jane Doe 4 argue that they “have suffered the same violations of their rights under the [CVRA] as the” Petitioners, and they “desire to join in this action to vindicate their rights as well.” (Id. at 1). The Government vehemently opposes joinder under Rule 21. (DE 290). The Government argues that Rule 15 is the proper procedural device for adding parties to an action, not Rule 21. (Id. at 1).
“[OJut of an abundance of caution,” Petitioners filed a motion to amend their petition under Rule 15, conforming the petition to the evidence and adding Jane Doe 3 and Jane Doe 4 as petitioners. (DE 311 at 2). The Government opposes the Rule 15 Motion as well. (DE 3 14). Among other things, the Government argues that amending the petition to include Jane Doe 3 and Jane Doe 4 should be denied because of their undue delay in seeking to join the proceedings, and the undue prejudice that amendment will cause. (Id.).
After considering the parties’ submissions and the proposed amended petition, the Court finds that justice does not require amendment in this instance and exercises its discretion to deny the amendment.
IJ. Discussion
“The decision whether to grant leave to amend a complaint is within the sole discretion of the district court.” Laurie v. Ala. Ct. Crim. Apps., 256 F.3d 1266, 1274 (11th Cir. 2001). “The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Justice does
not require amendment in several instances, “includ[ing] undue delay, bad faith, dilatory motive
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on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.’” Laurie, 256 F.3d at 1274 (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)). In addition to considering the effect of amendment on the parties, the court must consider “the importance of the amendment on the proper determination of the merits of a dispute.” 6 Wright & Miller, Fed. Prac. & Fed. P. § 1488, p. 814 3d ed. 2010). Justice does not require amendment where the addition of parties with duplicative claims will not materially advance the resolution of the litigation on the merits. See Herring v. Delta Air Lines, Inc., 894 F.2d 1020, 1024 (9th Cir. 1989).
A. Rule 21 Motion
Jane Doe 3 and Jane Doe 4’s first attempt to join in this proceeding was brought under Rule 21. (DE 280). “If parties seek to add a party under Rule 21, courts generally use the standard of Rule 15, governing amendments to pleadings, to determine whether to allow the addition.” 12 Wright & Miller, Fed. Prac. & Fed. P., p. 432 (3d ed. 2013); see also Galustian v. Peter, 591 F.3d 724, 729-30 (4th Cir. 2010) (collecting cases and noting that Rule 15(a) applies to amendments seeking to add parties); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (“A motion to add a party is governed by Fed. R. Civ. P. 15(a)....”).
Rule 21, “Misjoinder and Non-joinder of Parties,” provides the court with a tool for correcting the “misjoinder” of parties that would otherwise result in dismissal. Fed. R. Civ. P. 21. Insofar as Rule 21 “relates to the addition of parties, it is intended to permit the bringing in of a person, who through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable.” United States v. Com.
Bank of N. Am., 31 F.R.D. 133, 135 (S.D.N.Y. 1962) (internal quotation marks omitted).
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In their Rule 21 Motion, Jane Doe 3 and Jane Doe 4 do not claim that they were omitted from this proceeding due to any “inadvertence” or “mistake” by Petitioners; rather, they seek to join this proceeding as parties that could have been permissively joined in the original petition under Rule 20 (“Permissive Joinder of Parties”). As courts generally use the standards of Rule 15 to evaluate such circumstances, the Court will consider the joinder issue as presented in the Rule 15 Motion.! The Court will consider the arguments presented in the Rule 21 Motion as if they are set forth in the Rule 15 Motion as well. Because the arguments are presented in the Rule 15 Motion (and because the Court is denying the Rule 15 Motion on its merits, as discussed below), the Rule 21 Motion will be denied. |
The Court also concludes that portions of the Rule 21 Motion and related filings should be stricken from the record. Pending for this Court’s consideration is a Motion for Limited Intervention filed by Alan M. Dershowitz, who seeks to intervene to “strike the outrageous and impertinent allegations made against him and [to] request[] a show cause order to the attorneys that have made them.” (DE 282 at 1). The Court has considered Mr. Dershowitz’s arguments, but it finds that his intervention is unnecessary as Federal Rule of Civil Procedure 12(f) empowers the Court “‘on its own” to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Petitioners’ Rule 21 Motion consists of relatively little argumentation regarding why the
Court should permit them to join in this action: they argue that (1) they were sexually abused by
' The Court notes that, regardless of which motion it considers, the same standard governs the addition of parties under Rule 21 and Rule 15. See Goston v. Potter, No. 08-cv-478 FJS ATB, 2010 WL 4774238, at *5 (N.D.N.Y. 2010) (citing Bridgeport Music, Inc. v. Universal Music Grp., Inc., 248 F.R.D. 408, 412 (S.D.N.Y. 2008)).
4
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Jeffrey Epstein, and (2) the Government violated their CVRA rights by concealing the non- prosecution agreement with them. (DE 280 at 3; see id. at 7-8). However, the bulk of the Rule 21 Motion consists of copious factual details that Jane Doe 3 and Jane Doe 4 “would prove” “[i]f allowed to join this action.” (Id. at 3, 7). Specifically, Jane Doe 3 proffers that she could prove the circumstances under which a non-party introduced her to Mr. Epstein, and how Mr. Epstein sexually trafficked her to several high-profile non-party individuals, “including numerous prominent American politicians, powerful business executives, foreign presidents, a well-known Prime Minister, and other world leaders.” (Id. at 3-6). She names several individuals, and she offers details about the type of sex acts performed and where they took place. (See id. at 5).
At this juncture in the proceedings, these lurid details are unnecessary to the determination of whether Jane Doe 3 and Jane Doe 4 should be permitted to join Petitioners’ claim that the Government violated their rights under the CVRA. The factual details regarding with whom and where the Jane Does engaged in sexual activities are immaterial and impertinent to this central claim (i.e., that they were known victims of Mr. Epstein and the Government owed them CVRA duties), especially considering that these details involve non-parties who are not related to the respondent Government. These unnecessary details shall be stricken.
The original Rule 21 Motion (DE 279) shall be stricken in its entirety, as it is wholly superseded by the “corrected” version of the Rule 21 Motion (DE 280). From the corrected Rule 21 Motion, the Court shall strike all factual details regarding Jane Doe 3 between the following
sentences: “The Government then concealed from Jane Doe #3 the existence of its NPA from
2 Jane Doe 4’s proffer is limited to sexual acts between Mr. Epstein and herself. (See DE 280 at 7-8).
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Jane Doe #3, in violation of her rights under the CVRA” (id, at 3); and “The Government was well aware of Jane Doe #3 when it was negotiating the NPA, as it listed her as a victim in the attachment to the NPA” (id. at 6). As none of Jane Doe 4’s factual details relate to non-parties, the Court finds it unnecessary to strike the portion of the Rule 2] Motion related to her circumstances. Regarding the Declaration in support of Petitioners’ response to Mr. Dershowitz’s motion to intervene (DE 291-1), the Court shall strike paragraphs 4, 5, 7, 11, 13, 15, 19 through 53, and 59, as they contain impertinent details regarding non-parties. Regarding the Declaration of Jane Doe 3 in support of the Rule 21 Motion (DE 310-1), the Court shall strike paragraphs 7 through 12, 16, 39, and 49, as they contain impertinent details regarding non- parties. Jane Doe 3 is free to reassert these factual details through proper evidentiary proof, should Petitioners demonstrate a good faith basis for believing that such details are pertinent to a matter presented for the Court’s consideration.
As mentioned, Mr. Dershowitz moves to intervene “for the limited purposes of moving to strike the outrageous and impertinent allegations made against him and requesting a show cause order to the attorneys that have made them.” (DE 282 at 1). As the Court has taken it upon itself to strike the impertinent factual details from the Rule 21 Motion and related filings, the Court concludes that Mr. Derschowitz’s intervention in this case is unnecessary. Accordingly, his
motion to intervene will be denied as moot.’ Regarding whether a show cause order should
> This also moots Mr. Dershowitz’s Motion for Leave to File Supplemental Reply in Support of Motion for Limited Intervention. (DE 317). Denying Mr. Dershowitz’s motion to intervene also renders moot Petitioners’ motion (DE 292) to file a sealed document supporting its response to Mr. Dershowitz’s motion. It will accordingly be denied as moot, and DE 293 (the sealed response) will be stricken from the record.
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issue, the Court finds that its action of striking the lurid details from Petitioners’ submissions is sanction enough. However, the Court cautions that all counsel are subject to Rule 11’s mandate that all submissions be presented for a proper purpose and factual contentions have evidentiary support, Fed. R. Civ. P. 11(b)(1) and (3), and that the Court may, on its own, strike from any pleading “any redundant, immaterial, impertinent, or scandalous matter,” Fed. R. Civ... 120): B. Rule 15 Motion
Between their two motions (the Rule 21 Motion and Rule 15 Motion), Jane Doe 3 and Jane Doe 4 assert that “they desire to join in this action to vindicate their rights [under the CVRA] as well.” (DE 280 at 1). Although Petitioners already seek the invalidation of Mr. Epstein’s non-prosecution agreement on behalf of all “other similarly-situated victims” (DE 189 at 1; DE 311 at 2, 12, 15, 18-19), Jane Doe 3 and Jane Doe 4 argue that they should be fellow travelers in this pursuit, lest they “be forced to file a separate suit raising their claims” resulting in “duplicative litigation” (DE 280 at 11). The Court finds that justice does not require adding new parties this late in the proceedings who will raise claims that are admittedly “duplicative” of the claims already presented by Petitioners.
The Does’ submissions demonstrate that it is entirely unnecessary for Jane Doe 3 and Jane Doe 4 to proceed as parties in this action, rather than as fact witnesses available to offer relevant, admissible, and non-cumulative testimony. (See, ¢.g., DE 280 at 2 (Jane Doe 3 and Jane Doe 4 “are in many respects similarly situated to the current victims”), 9 (“The new victims will establish at trial that the Government violated their CVRA rights in the same way as it violated the rights of the other victims.”), 10 (Jane Doe 3 and Jane Doe 4 “will simply join in
motions that the current victims were going to file in any event.”), 11 (litigating Jane Doe 3 and
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Jane Doe 4’s claims would be “duplicative’”); DE 298 at 1 n.1 (“As promised . . . Jane Doe No. 3 and Jane Doe No. 4 do not seek to expand the number of pleadings filed in this case. If allowed to join this action, they would simply support the pleadings already being filed by Jane Doe No. 1 and Jane Doe No. 2.”); DE 311 at 5 n.3 (“[A]II four victims (represented by the same legal counsel) intend to coordinate efforts and avoid duplicative pleadings.”), 15 (Jane Doe 3 and Jane Doe 4 “challenge the same secret agreement _i.e., the NPA that the Government executed with Epstein and then concealed from the victims. This is made clear by the proposed amendment itself, in which all four victims simply allege the same general facts.”)). As the Does argue at length in their Rule 15 Motion, Jane Doe 1’s original petition “specifically allege[s] that the Government was violating not only her rights but the rights of other similarly-situated victims.” (DE 311 at 2). The Court fails to see why the addition of “other similarly-situated victims” is now necessary to “vindicate their rights as well.” (DE 280 at 1).
Of course, Jane Doe 3 and Jane Doe 4 can participate in this litigated effort to vindicate the rights of similarly situated victims _ there is no requirement that the evidentiary proof submitted in this case come only from the named parties. Petitioners point out as much, noting that, regardless of whether this Court grants the Rule 15 Motion, “they will call Jane Doe No. 3 as a witness at any trial.” (DE 311 at 17.7). The necessary “participation” of Jane Doe 3 and Jane Doe 4 in this case can be satisfied by offering their properly supported and relevant, admissible, and non-cumulative testimony as needed, whether through testimony at trial
(see DE 280 at 9) or affidavits submitted to support the relevancy of discovery requests" (see
‘ The non-party Jane Does clearly understand how to submit affidavits. (See DEs 291-1, 310-1).
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id. at 10). Petitioners do not contend that Jane Doe 3 and Jane Doe 4’s “participation in this case” can only be achieved by listing them as parties.
As it stands under the original petition, the merits of this case will be decided based on a determination of whether the Government violated the rights of Jane Doe 1, Jane Doe 2, and all “other similarly situated victims” under the CVRA. Jane Doe 3 and Jane Doe 4 may offer relevant, admissible, and non-cumulative evidence that advances that determination, but their participation as listed parties is not necessary in that regard. See Herring, 894 F.2d at 1024 (District court did not abuse its discretion by denying amendment where “addition of more plaintiffs... would not have affected the issues underlying the grant of summary judgment.”); cf. Arthur v. Stern, 2008 WL 2620116, at *7 (S.D. Tex. 2008) (Under Rule 15, “courts have held that leave to amend to assert a claim already at issue in [another lawsuit] should not be granted if the same parties are involved, the same substantive claim is raised, and the same relief is sought.”).> And, as to Jane Doe 4 at least, adding her as a party raises unnecessary questions about whether she is a proper party to this action.°
Petitioners also admit that amending the petition to conform to the evidence — by including references to the non-prosecution agreement itself is “unnecessary” as the “existing petition is broad enough to cover the developing evidence in this case.” (DE 311). The Court
> The Court expresses no opinion at this time whether any of the attestations made by
Jane Doe 3 and Jane Doe 4 in support of their motion will be relevant, admissible, and non- cumulative.
° The Government contends that Jane Doe 4 is not a true “victim” in this case because she was not known at the time the Government negotiated the non-prosecution agreement, and accordingly she was not entitled to notification rights under the CVRA. (See DE 290 at 10). Any “duplicative” litigation filed by Jane Doe 4 would necessarily raise the issue of whether she has standing under the CVRA under these circumstances.
9
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agrees, and it concludes that justice does not require amending the petition this late in the proceedings. II. Conclusion Accordingly, it is hereby ORDERED AND ADJUDGED as follows: the Rule 21 Motion (DE 280) is DENIED; the Rule 15 Motion (DE 311) is DENIED; Intervenor Dershowitz’s Motion for Limited Intervention (DE 282) and Motion for Leave to File Supplemental Reply in Support of Motion for Limited Intervention (DE 317) are DENIED AS MOOT; Petitioners’ Motion to Seal (DE 292) is DENIED AS MOOT; the following materials are hereby STRICKEN from the record: ° DE 279, in its entirety. ° DE 280, all sentences between the following sentences: “The Government then concealed from Jane Doe #3 the existence of its NPA from Jane Doe #3, in violation of her rights under the CVRA” (DE 280 at 3); and “The Government was well aware of Jane Doe #3 when it was negotiating the NPA, as it listed her as a victim in the
attachment to the NPA” (DE 280 at 6).
° DE 291-1, paragraphs 4,5, 7, 11, 13, 15, 19 through 53, and 59.
° DE 310-1, paragraphs 7 through 12, 16, 39, and 49. . DE 293, in its entirety. DONE AND ORDERED in chambers at West Palm Beach, Palm Beach County,
Florida, this 6" day of April, 2015. pe KENNETH A. MARRA United States District Judge
10
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 22 of 26
EXHIBIT D
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 23 of 26
Case 9:08-cv-80736-KAM Document 325 Entered on FLSD Docket 04/07/2015 Page 1of1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO.:08-CV-80736-KAM JANE DOE 1 and JANE DOE 2, Petitioners, vs. UNITED STATES OF AMERICA, Respondent.
/
SUPPLEMENTAL ORDER
This cause is before the Court on its Order Denying Petitioners’ Motion to Join Under Rule 21 and Motion to Amend Under Rule 15. (DE 324). In accordance with the portion of that Order striking materials from the record (see id. at 10), the Court informs the parties of the following: The affected docket entries (DEs 279, 280, 291-1, 293, and 310-1) shall be restricted from public access on the docket in their entities. Docket entries 279 and 293, which were stricken in their entirety, shall remain so restricted. Regarding the docket entries of which portions were stricken (DEs 280, 291-1, and 310-1), Petitioners may re-file those documents omitting the stricken portions. The re-filed documents must conform to the originally filed documents in all respects, but with the stricken portions omitted.
DONE AND ORDERED in chambers at West Palm Beach, Palm Beach County,
Florida, this 7" day of April, 2015.
a foo LE ie
KENNETH A. MARRA — United States District Court
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 24 of 26
EXHIBIT E
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 25 of 26
11/30/2015 Prince Andrew denies having relations with ‘sex slave’ girl - Telegraph
Prince Andrew denies having relations with ‘sex slave’ girl
Buckingham Palace issues an unprecedented statement denying the Duke of York slept with Virgina Roberts, the girl at the centre of the ‘sex slave' court case
By Robert Mendick, and Rob Crilly in New York
10:49PM GMT 03 Jan 2015
The Duke of York last night emphatically denied sleeping with the woman at the centre of an alleged sex-slave scandal.
Prince Andrew had been accused in court documents, lodged in the United States, of sexually abusing a 17-year-old girl, Virginia Roberts, who was allegedly supplied to him by friend and convicted sex offender, Jeffrey Epstein.
But in an unprecedented statement, Buckingham Palace, insisted that the claims were categorically untrue.
Following a day of bruising headlines, a spokesman for Buckingham Palace said: “Tt is emphatically denied that HRH The Duke of York had any form of sexual contact or relationship with Virginia Roberts. The allegations made are false and without any foundation.”
Lawyers acting for the Duke of York have privately accused Mrs Roberts of embarking on a “speculative fishing expedition” in an attempting to ensnare him
in the under-age sex scandal.
As well as accusing him of having slept with her, papers lodged by her Jegal team, go on to accuse the Prince of lobbying the US authorities (o ensure Epstein
was given a “more favourable plea” bargain following a series of sex abuse allegations against him. In 2008, Epstein was jailed for 18 months after pleading guilty to one state charge of soliciting prostitution. Several other charges were dropped.
Mrs Roberts’ lawyers are now seeking “documents regarding Epstein’s lobbying efforts to persuade the government to give him a more favourable plea
arrangement and/or non-prosecution agreement, including efforts on his behalf by Prince Andrew.” The Telegraph can disclose that lawyers acting for the Duke of York have examined the 13-page motion submitted in the Florida courts.
It is understood the lawyers view the claim of lobbying as “a speculative fishing expedition”. They are understood to believe that her lawyers do not have proof
that lobbying was conducted by the Prince, but want to see if any paperwork that supports such a claim actually exists.
On Friday Buckingham Palace took the highly unusual step of “categorically” denying the allegations made by the woman — who at that stage was only
identified as Jane Doe 3 in the court documents. The initial statement read: “Any suggestion of impropriety with under-age minors is categorically untrue.”
But Palace officials last night decided to go further still and meet the scandal head with a statement that not only addressed the issue of sex, but also named the
complainant.
Attempts to shore up the Prince’s reputation were helped by an interview given by Alan Dershowitz. the Harvard law professor and criminal defence lawyer who represented Epstein. Mr Dershowitz has also been accused by Jane Doe 3 of having “sexual relations” with her “on numerous occasions while she was a
minor, not only in Florida but also on private planes, in New York, New Mexico. and the US Virgin Islands”. Mr Dershowitz told BBC Radio 4’s Today programme the claims against him were false. He said: “My only feeling is if she’s lied about me, which I know to
http:/Avww.telegraph.co.uk/news/uknews/ther oyalfamily/11 323872/Prince-Andrew-denies-having-relations-with-sex-slave-girl.htm! 1/2
Case 1:15-cv-07433-RWS Document 16-1 Filed 12/01/15 Page 26 of 26
41/30/2015 Prince Andrew denies having relations with 'sex slave’ girl - Telegraph
an absolute certainty she has, she should not be believed about anyone else. We know she’s lied about other public figures including a former prime minister and others who she claims to have participated in sexual activities with, so I think it must be presumed all her allegations against Prince Andrew were false as
well.”
Ghislaine Maxwell, the daughter of Robert Maxwell, also denied allegations that she had acted as a “madame for Epstein” and “facilitated Prince Andrew's
acts of sexual abuse”. Her spokesman said: “The allegations made against Ghislaine Maxwell are untrue.
“Miss Maxwell strongly denies allegations of an unsavoury nature, which have appeared in the British press and elsewhere and reserves her right to seek
redress at the repetition of such old defamatory claims.”
Ina statement released through her lawyers to The Guardian, the alleged victim responded to the denials. “These types of aggressive attacks on me are exactly
the reason why sexual abuse victims typically remain silent,” she said. “I’m not going to be bullied back into silence.”
Reta eae
© Copyright of Telegraph Media Group Limited 2015
http:/Avww.telegraph.co.uk/news/uknews/ther oyalfamily/11323872/Prince-Andrew-denies-having-relations-with-sex-slave-girl -Atml 2/2
Case 1:15-cv-07433-RWS Document17 Filed 12/01/15 Page1of3
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ee eee XxX VIRGINIA L. GIUFFRE, PLAINTIFF, V. 15-cv-07433-RWS GHISLAINE MPOs wert, Oral Argument Requested for January
DEFENDANT GHISLAINE MAXWELL’S NOTICE OF MOTION FOR A STAY OF DISCOVERY PENDING DECISION ON DEFENDANT’S MOTION TO DISMISS
PLEASE TAKE NOTICE THAT, upon the accompanying Memorandum of Law, dated November 30, 2015, including Exhibit A attached hereto, and upon all prior pleadings and proceedings in this action, other documents on file in this action, and any oral argument of counsel, Defendant Ghislaine Maxwell (“Maxwell”) will move this Court, before the Honorable Robert W. Sweet, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York, Courtroom 18C, for an Order
pursuant to Federal Rule of Civil Procedure 26(c) staying discovery during the pendency
of Maxwell’s Motion to Dismiss.
Case 1:15-cv-07433-RWS Document17 Filed 12/01/15 Page 2 of 3
Dated: November 30, 2015
Respectfully submitted,
s/ Laura A. Menninger
Laura A. Menninger
HADDON, MORGAN AND FOREMAN, P.C. 150 East 10" Avenue
Denver, CO 80203
Phone: 303.831.7364
Fax: 303.832.2628 Imenninger@hmflaw.com
Attorneys for Ghislaine Maxwell
Case 1:15-cv-07433-RWS Document17 Filed 12/01/15 Page 3of3
CERTIFICATE OF SERVICE
I certify that on November 30, 2015, I electronically filed this DEFENDANT GHISLAINE MAXWELL’S NOTICE OF MOTION FOR A STAY OF DISCOVERY PENDING DECISION ON DEFENDANT’S MOTION TO DISMISS with the Clerk of Court using the CM/ECF system which will send notification to the following:
Sigrid S. McCawley
BOIES, SCHILLER & FLEXNER, LLP
401 East Las Olas Boulevard, Ste. 1200 Ft. Lauderdale, FL 33301
smccawley @bsfllp.com
s/ Brenda Rodriguez
Brenda Rodriguez
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 1of13
United States District Court Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS
Ghislaine Maxwell,
Defendant.
PLAINTIFF’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT GHISLAINE MAXWELL
Plaintiff, by and through her undersigned counsel, hereby propounds Plaintiffs First Request for Production of Documents pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure to the Defendant Ghislaine Maxwell. The responses are due at the offices of Boies, Schiller & Flexner LLP, 401 East Las Olas Boulevard, Suite 1200, Fort Lauderdale, Florida 33301, within thirty (30) days of service hereof.
DEFINITIONS
Wherever they hereafter appear the following words and phrases have the following meanings:
1. “Agent” shall mean any agent, employee, officer, director, attorney, independent contractor or any other person acting, or purporting to act, at the discretion of or on behalf of another.
De “Correspondence” or “communication” shall mean all written or verbal communications, by any and all methods, including without limitation, letters, memoranda,
and/or electronic mail, by which information, in whatever form, is stored, transmitted or
Exhibit A
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 2 of 13
received; and, includes every manner or means of disclosure, transfer or exchange, and every disclosure, transfer or exchange of information whether orally or by document or otherwise, face-to-face, by telephone, telecopies, e-mail, text, modem transmission, computer generated message, mail, personal delivery or otherwise.
3. “Defendant” shall mean the defendant Ghislaine Maxwell and her employees, representatives or agents.
4, “Document” shall mean all written and graphic matter, however produced or reproduced, and each and every thing from which information can be processed, transcribed, transmitted, restored, recorded, or memorialized in any way, by any means, regardless of technology or form. It includes, without limitation, correspondence, memoranda, notes, notations, diaries, papers, books, accounts, newspaper and magazine articles, advertisements, photographs, videos, notebooks, ledgers, letters, telegrams, cables, telex messages, facsimiles, contracts, offers, agreements, reports, objects, tangible things, work papers, transcripts, minutes, reports and recordings of telephone or other conversations or communications, or of interviews or conferences, or of other meetings, occurrences or transactions, affidavits, statements, summaries, opinions, tests, experiments, analysis, evaluations, journals, balance sheets, income statements, statistical records, desk calendars, appointment books, lists, tabulations, sound recordings, data processing input or output, microfilms, checks, statements, receipts, summaries, computer printouts, computer programs, text messages, e-mails, information kept in computer hard drives, other computer drives of any kind, computer tape back-up, CD-ROM, other computer disks of any kind, teletypes, telecopies, invoices, worksheets, printed matter of every kind and description, graphic and oral records and representations of any kind, and electronic
“writings” and “recordings” as set forth in the Federal Rules of Evidence, including but not
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 3 of 13
limited to, originals or copies where originals are not available. Any document with any marks such as initials, comments or notations of any kind of not deemed to be identical with one without such marks and is produced as a separate document. Where there is any question about whether a tangible item otherwise described in these requests falls within the definition of “document” such tangible item shall be produced.
a “Employee” includes a past or present officer, director, agent or servant, including any attorney (associate or partner) or paralegal.
6. “Including” means including without limitations.
Te “Jeffrey Epstein” includes Jeffrey Epstein and any entities owned or controlled by Jeffrey Epstein, any employee, agent, attorney, consultant, or representative of Jeffrey Epstein.
8. Person(s)” includes natural persons, proprietorships, governmental agencies, corporations, partnerships, trusts, joint ventures, groups, associations, organizations or any other legal or business entity.
0, “You” or “Your” hereinafter means Ghislaine Maxwell and any employee, agent, attorney, consultant, related entities or other representative of Ghislaine Maxwell.
INSTRUCTIONS
1. Unless indicated otherwise, the Relevant Period for this Request is from July 1999 to the present. A Document should be considered to be within the relevant time frame if it refers or relates to communications, meetings or other events or documents that occurred or were created within that time frame, regardless of the date of creation of the responsive Document.
2. This Request calls for the production of all responsive Documents in your
possession, custody or control without regard to the physical location of such documents.
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 4of13
3. If any Document requested was in any defendant’s possession or control, but is no longer in its possession or control, state what disposition was made of said Document, the reason for such disposition, and the date of such disposition.
4. For the purposes of reading, interpreting, or construing the scope of these requests, the terms used shall be given their most expansive and inclusive interpretation. This includes, without limitation the following:
a) Wherever appropriate herein, the singular form of a word shall be interpreted as plural and vice versa.
b) “And” as well as “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope hereof any information (as defined herein) which might otherwise be construed to be outside the scope of this discovery request.
c) “Any” shall be understood to include and encompass “all” and vice versa.
d) Wherever appropriate herein, the masculine form of a word shall be interpreted as feminine and vice versa.
e) “Including” shall mean “including without limitation.”
a If you are unable to answer or respond fully to any document request, answer or respond to the extent possible and specify the reasons for your inability to answer or respond in full. If the recipient has no documents responsive to a particular Request, the recipient shall so State.
6. Unless instructed otherwise, each Request shall be construed independently and
not by reference to any other Request for the purpose of limitation.
99 66 99 66
Ts The words “relate,” “relating,” “relates,” or any other derivative thereof, as used herein includes concerning, referring to, responding to, relating to, pertaining to, connected with, comprising, memorializing, evidencing, commenting on, regarding, discussing, showing,
describing, reflecting, analyzing or constituting.
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 5of13
8. “Identify” means, with respect to any “person,” or any reference to the “identity” of any “person,” to provide the name, home address, telephone number, business name, business address, business telephone number and a description of each such person’s connection with the events in question.
o. “Identify” means, with respect to any “document,” or any reference to stating the “identification” of any “document,” provide the title and date of each such document, the name and address of the party or parties responsible for the preparation of each such document, the name and address of the party who requested or required the preparation and on whose behalf it was prepared, the name and address of the recipient or recipients to each such document and the present location of any and all copies of each such document, and the names and addresses of all persons who have custody or control of each such document or copies thereof.
10. =‘ In producing Documents, if the original of any Document cannot be located, a copy shall be produced in lieu thereof, and shall be legible and bound or stapled in the same
manner as the original.
11. | Any copy of a Document that is not identical shall be considered a separate document. 12. If any requested Document cannot be produced in full, produce the Document to
the extent possible, specifying each reason for your inability to produce the remainder of the Document stating whatever information, knowledge or belief which you have concerning the portion not produced.
13. If any Document requested was at any one time in existence but are no longer in existence, then so state, specifying for each Document (a) the type of document; (b) the types of
information contained thereon; (c) the date upon which it ceased to exist; (d) the circumstances
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 6 of 13
under which it ceased to exist; (e) the identity of all person having knowledge of the circumstances under which it ceased to exist; and (f) the identity of all persons having knowledge or who had knowledge of the contents thereof and each individual’s address.
14. All Documents shall be produced in the same order as they are kept or maintained by you in the ordinary course of business.
IS. You are requested to produce all drafts and notes, whether typed, handwritten or otherwise, made or prepared in connection with the requested Documents, whether or not used.
16. Documents attached to each other shall not be separated.
17: Documents shall be produced in such fashion as to identify the department, branch or office in whose possession they were located and, where applicable, the natural person in whose possession they were found, and business address of each Document’s custodian(s).
18. If any Document responsive to the request is withheld, in all or part, based upon any claim of privilege or protection, whether based on statute or otherwise, state separately for each Document, in addition to any other information requested: (a) the specific request which calls for the production; (b) the nature of the privilege claimed; (c) its date; (d) the name and address of each author; (e) the name and address of each of the addresses and/or individual to whom the Document was distributed, if any; (f) the title (or position) of its author; (g) type of tangible object, e.g., letter, memorandum, telegram, chart, report, recording, disk, etc.; (h) its title and subject matter (without revealing the information as to which the privilege is claimed); (1) with sufficient specificity to permit the Court to make full determination as to whether the claim of privilege is valid, each and every fact or basis on which you claim such privilege; and (j) whether the document contained an attachment and to the extent you are claiming a privilege as
to the attachment, a separate log entry addressing that privilege claim.
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 7 of 13
19. If any Document requested herein is withheld, in all or part, based on a claim that such Document constitutes attorney work product, provide all of the information described in Instruction No. 19 and also identify the litigation in connection with which the Document and the information it contains was obtained and/or prepared.
20. Plaintiff does not seek and does not require the production of multiple copies of identical Documents.
al, This Request is deemed to be continuing. If, after producing these Documents, you obtain or become aware of any further information, Documents, things, or information responsive to this Request, you are required to so state by supplementing your responses and
producing such additional Documents to Plaintiff.
DOCUMENTS REQUESTED
DOCUMENT REQUEST NO. 1
All documents relating to communications with Jeffrey Epstein from 1999 — present.
DOCUMENT REQUEST NO. 2
All documents relating to communications with Virginia Roberts Giuffre from 1999 — present.
DOCUMENT REQUEST NO. 3
All documents relating to communications with Andrew Albert Christian Edward, Duke of York (a.k.a. Prince Andrew) from 1999 — present.
DOCUMENT REQUEST NO. 4
All documents relating to communications between you and Jeffrey Epstein regarding any female under the age of 18 from the period of 1999 — present.
DOCUMENT REQUEST NO. 5
All documents relating to massages, including but not limited to any documents reflecting recruiting or hiring masseuses, advertising for masseuses, flyers created for distribution at high schools or colleges, and records reflecting e-mails or calls to individuals relating to massages.
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 8 of 13
DOCUMENT REQUEST NO. 6
All documents relating to communications with any of the following individuals from 1999 — present: Emmy Taylor, Sarah Kellen, Eva Dubin, Glen Dubin, Jean Luc Brunel, and Nadia Marcinkova.
DOCUMENT REQUEST NO. 7
All video tapes, audio tapes, photographs or any other print or electronic media relating to females under the age of 18 from the period of 1999 — present.
DOCUMENT REQUEST NO. 8
All documents relating to your travel from the period of 1999 — present, including but not limited to, any travel on Jeffrey Epstein’s planes, commercial flights, helicopters, passport records, records indicating passengers traveling with you, hotel records, and credit card receipts.
DOCUMENT REQUEST NO. 9
All documents identifying passengers, manifests, or flight plans for any helicopter or plane ever owned or controlled by you or Jeffrey Epstein or any associated entity from 1999 — present.
DOCUMENT REQUEST NO. 10
All documents relating to payments made from Jeffrey Epstein or any related entity to you from 1999 — present, including payments for work performed, gifts, real estate purchases, living expenses, and payments to your charitable endeavors including the TerraMar project.
DOCUMENT REQUEST NO. 11
All documents relating to or describing any work you performed with Jeffrey Epstein, or any affiliated entity from 1999 —present.
DOCUMENT REQUEST NO. 12
All confidentiality agreements between you and Jeffrey Epstein or any entity to which he is related or involved or such agreements which are or were in your possession or control related to any other employee of Jeffrey Epstein, or any associated entity.
DOCUMENT REQUEST NO. 13
All documents from you, your attorneys or agents to any law enforcement entity, or from any law enforcement entity to you or any of your representatives, related to any cooperation, potential charge, immunity or deferred prosecution, or which relates to suspected or known criminal activity.
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 9 of 13
DOCUMENT REQUEST NO. 14
All documents relating to travel of any female under the age of 18 from the period of 1999 — present.
DOCUMENT REQUEST NO. 15
All video tapes, audio tapes, photographs or any other print or electronic media taken at a time when you were in Jeffrey Esptein’s company or inside any of his residences or aircraft.
DOCUMENT REQUEST NO. 16
All computers, hard drives or copies thereof for all computers in operation between 1999 — 2002.
DOCUMENT REQUEST NO. 17
All documents relating to communications with you and Ross Gow from 2005 — present.
DOCUMENT REQUEST NO. 18
All video tapes, audio tapes, photographs or any other print or electronic media relating to Virginia Roberts Guiffre.
DOCUMENT REQUEST NO. 19
All documents relating to your deposition scheduled in the matter of Jane Doe v. Epstein, 08- 80893, United States Southern District of Florida.
DOCUMENT REQUEST NO. 20
All documents relating to any credit cards used that were paid for by Jeffrey Epstein or any related entity from 1999 — present.
DOCUMENT REQUEST NO. 21
All telephone records associated with you, including cell phone records from 1999 — present.
DOCUMENT REQUEST NO. 22
All documents relating to calendars, schedules or appointments for you from 1999 — present.
DOCUMENT REQUEST NO. 23
All documents relating to calendars, schedules or appointments for Jeffrey Epstein from 1999- present.
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 10 of 13
DOCUMENT REQUEST NO. 24
All documents relating to contact lists, phone lists or address books for you or Jeffrey Epstein from 1999 — present.
DOCUMENT REQUEST NO. 25
All documents relating to any hospital records for Virginia Roberts Guiffre.
DOCUMENT REQUEST NO. 26
All documents relating to any passport or license for Virginia Roberts Guiffre.
DOCUMENT REQUEST NO. 27
All documents relating to any gifts or monetary payments provided to Virginia Roberts Guiffre by you, Jeffrey Epstein or any related entity.
DOCUMENT REQUEST NO. 28
All documents relating to Virginia Robert’s employment or work as an independent contractor with you, Jeffrey Epstein or any related entity.
DOCUMENT REQUEST NO. 29
All documents identifying any individuals to whom Virginia Roberts provided a massage.
DOCUMENT REQUEST NO. 30
All documents relating to any employee lists or records associated with you, Jeffrey Epstein or any related entity.
DOCUMENT REQUEST NO. 31
All documents relating to Victoria Secret, models or actresses, who were ever in the presence of you or Jeffrey Epstein or Virginia Roberts between 1999 and 2005.
DOCUMENT REQUEST NO. 32
All documents related to communications with or interaction with Alan Dershowitz from 1999 to present. DOCUMENT REQUEST NO. 33
All travel records between 1999 and the present reflecting your presence in: (a) Palm Beach,
Florida or immediately surrounding areas; (b) 9 E. 71* Street, New York, NY 10021; (c) New Mexico; (d) U.S. Virgin Islands; (e) any jet or aircraft owned or controlled by Jeffrey Epstein.
10
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 11 of 13
DOCUMENT REQUEST NO. 34
All documents reflecting your ownership or control of property in London between the years 1999 and 2002.
DOCUMENT REQUEST NO. 35
All documents reflecting your or Jeffrey Epstein’s membership or visits to the Mar-a-Lago Club in Palm Beach Florida between the years 1999 and 2002.
DOCUMENT REQUEST NO. 36
All documents you rely upon to establish that (a) Giuffre’s sworn allegations “against Ghislaine Maxwell are untrue.” (b) the allegations have been “shown to be untrue.”; and (c) Giuffre’s “claims are obvious lies.”
DOCUMENT REQUEST NO. 37
All documents reflecting communications you have had with Bill or Hillary Clinton (or persons acting on their behalf), including all communications regarding your attendance at Chelsea’s Clinton’s wedding ceremony in 2010.
DOCUMENT REQUEST NO. 38
All documents reflecting contact with you by any law enforcement or police agency, including any contact by the FBI, Palm Beach Police Department, or West Palm Beach Police Department.
DOCUMENT REQUEST NO. 39
All documents reflecting training to fly a helicopter or experience flying a helicopter, including any records concerning your operation of a helicopter in the U.S. Virgin Islands.
11
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 12 of 13
Dated: October 27, 2015
By: /s/ David Boies
David Boies
Boies Schiller & Flexner LLP 333 Main Street
Armonk, NY 10504
/s/ Sigrid McCawley Sigrid McCawley
(Pro Hac Vice Pending)
Boies Schiller & Flexner LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301
(954) 356-0011
Ellen Brockman
Boies Schiller & Flexner LLP 575 Lexington Ave
New York, New York 10022 (212) 446-2300
12
Case 1:15-cv-07433-RWS Document17-1 Filed 12/01/15 Page 13 of 13
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 27th day of October, 2015, I served the attached document PLAINTIFF’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT GHISLAINE MAXWELL via Email to the following counsel of record.
Laura A. Menninger, Esq.
HADDON, MORGAN & FOREMAN, P.C. 150 East 10" Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: Imenninger@hmflaw.com
/s/ Sigrid S. McCawley
Sigrid S. McCawley
13
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
VIRGINIA L. GIUFFRE,
PLAINTIFF, : V. 15-cv-07433-RWS
GHISLAINE MAXWELL,
DEFENDANT.
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A STAY OF DISCOVERY PENDING DECISION ON DEFENDANT’S MOTION TO DISMISS
Defendant Ghislaine Maxwell, through her attorney Laura A. Menninger of the law firm Haddon, Morgan and Foreman, P.C., hereby respectfully submits this Memorandum of Law in support of her Motion to Stay Discovery during the pendency of her Motion to Dismiss.
LEGAL STANDARD
Rule 26(c) of the Federal Rules of Civil Procedure grants courts broad discretion to stay discovery “for good cause shown.” Spencer Trask Software and Info. Servs., LLC v. RPost Int'l Ltd., 206 F.R.D. 367, 368 (S.D.N.Y 2002). Good cause may be shown where a party (1) has filed a dispositive motion; (2) the stay is for a short period of time; and (3) the opposing party will not be prejudiced by the stay. Jd. Additional factors courts may consider are breadth of discovery sought and the burden of responding to it as well as the strength of the dispositive
motion forming the basis for the stay application. Id.
ARGUMENT
I. Ms. Maxwell’s Motion to Dismiss Provides “Good Cause” to Stay Discovery A. The Pending Motion Cites Multiple, Independent Grounds for Dismissal
A stay of discovery is particularly appropriate where, as here, a pending motion to dismiss has “substantial arguments for dismissal of many, if not all, of the claims asserted.” Spinelli v. National Football League, No. 13-cv-7398 (RWS), 2015 WL 7302266, at *2 (S.D.N.Y. Nov. 17, 2015) (Sweet, J.). Here, Plaintiff's Complaint consists of a single defamation claim. In her motion to dismiss, Ms. Maxwell offers multiple grounds for dismissal of the entire action, none of which are “unfounded in the law.” Johnson v. New York Univ. Sch. of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002). Ms. Maxwell respectfully refers the Court to her Memorandum of Law in Support of Motion to Dismiss wherein she argues as grounds for dismissal both that the Complaint has various pleading deficiencies and that the alleged defamatory statements are protected by not one, but two, applicable privileges. Courts in this district have stayed discovery under similar circumstances. See e.g., Integrated Sys. and Power, Inc. v. Honeywell Int'l, Inc., No. 09 CV 5874 (RPP), 2009 WL 2777076, at *1 (S.D.N.Y. Sept. 1, 2009) (“granting a stay upon noting that [defendant] has put forth in its motion multiple, independent arguments for dismissal...”).
While the Court will ultimately decide the merits of Ms. Maxwell’s motion, the presence of multiple, independent grounds for dismissal, warrants a stay of discovery.
B. The Requested Stay is for a Short Period of Time
Pursuant to Rule 6.1(b) of the Local Rules of this Court, briefing on the Motion to Dismiss is scheduled to be completed on Monday, December 28. Accordingly, any delay in the commencement of discovery will last for the time it takes the Court to rule on the Motion to
Dismiss. Such a short stay is unlikely to prejudice the Plaintiff. See id. When balanced against
the breadth of discovery required in this case, as detailed below, considerations of judicial efficiency weigh in favor of a stay. Jd. (granting a stay upon noting that doing so “could avoid the need for costly and time-consuming discovery”).
C. The Nature of the Complaint Necessarily Calls for a Wide-Breadth of Discovery
The allegations in the Complaint raise factual questions that stretch across multiple decades, from as early as 1999 to the present, and involve hundreds of individuals. Compl. { 9. Discovery, therefore, necessarily will be burdensome. Lengthy discovery is inherent in defamation actions because it is well-settled that in any such claim, “truth is an absolute, unqualified defense.” Jewell v. NYP Holdings, Inc., 23 F. Supp.2d 348, 366 (S.D.N.Y. 1998). Here, because the alleged defamatory statements consist of Ms. Maxwell’s denial of the multiple, and complex allegations levied against her by the Plaintiff concerning events that allegedly occurred 17 years ago, a wide breadth of discovery will be needed to address the veracity of each allegation. The sheer number of depositions that will be required alone will be a tremendous burden on the parties’ resources. This Court has granted a stay of discovery in a recent case involving similarly complex factual questions. Spinelli, 2015 WL 7302266, at *2.
Plaintiff's Rule 26 disclosures and First Request for Production of Documents to Defendant Ghislaine Maxwell amply illustrate this point. In her Rule 26 disclosures, Plaintiff lists as potential witnesses 94 individuals and four categories of people, such as “all staff at the Mar-a-Largo Club during 1999.” As to the 94 individuals, she provides one phone number for one witness and counsel’s contact information for two witnesses and the two parties. The remaining 89 individuals’ addresses and phone numbers are “unknown at this time.”
In her First Request for Production of Documents, Plaintiff seeks records from the
“period of July 1999 to the present” of broad categories such as:
e All documents relating to your travel from the period 1999 — present,” (No. 8);
e All computers, hard drives or copies thereof for all computers in operation between 1999 — 2002,” (No. 16);
e All telephone records associated with you, including cell phone records from 1999 — present.” (No. 21);
e All documents relating to calendars, schedules or appointments for you from 1999 — present,” (No. 22).
See Motion for Stay, Ex. A. Given the strength of Ms. Maxwell’s Motion to Dismiss, the burden of responding to such expansive requests is unjustifiable.
I. In the Alternative, Ms. Maxwell Requests Additional Time to Respond to Plaintiff’s Discovery Requests.
In the alternative, if this Court declines to grant an order staying discovery, for the same reasons stated above, Ms. Maxwell respectfully requests additional time within which to respond and/or object to Plaintiff's First Request for Production of Documents to Defendant Ghislaine Maxwell, served on October 27, 2015. The original date by which Ms. Maxwell was to respond to Plaintiff's First Request for Production is today, November 30, 2015. Ms. Maxwell has not made any previous requests for an extension of this deadline. Counsel for the Plaintiff has neither consented nor refused consent to this request. Finally, this extension will not affect any other scheduled dates.
CONCLUSION
As detailed above, good cause exists to justify a stay of discovery pending Ms. Maxwell’s motion to dismiss. The motion is dispositive and well founded in law, the stay is of short duration, and the expected discovery is broad and burdensome. For these reasons, Ms. Maxwell respectfully requests that this Court stay discovery in this action until this Court reaches its decision on the motion to dismiss, or in the alternative, that Ms. Maxwell be granted
additional time to respond and/or object to Plaintiffs First Request for Production.
Dated: November 30, 2015.
Respectfully submitted,
s/ Laura A. Menninger
Laura A. Menninger (LM-1374) HADDON, MORGAN AND FOREMAN, P.C. 150 East 10°" Avenue
Denver, CO 80203
Phone: 303.831.7364
Fax: 303.832.2628
Imenninger @hmflaw.com
Attorney for Ghislaine Maxwell
CERTIFICATE OF SERVICE
I certify that on November 30, 2015, I electronically filed this Motion for a Stay of
Sigrid S. McCawley
BOIES, SCHILLER & FLEXNER, LLP 401 East Las Olas Boulevard, Ste. 1200 Ft. Lauderdale, FL 33301 smccawley @bsfllp.com
Discovery Pending Decision on Defendant’s Motion to Dismiss with the Clerk of Court using the CM/ECF system which will send notification to the following:
s/ Brenda Rodriguez
Brenda Rodriguez
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 1 of 26
United States District Court Southern District of New York
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-RWS V. Ghislaine Maxwell,
Defendant.
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STAY
BOIES, SCHILLER & FLEXNER LLP
Sigrid McCawley (Pro Hac Vice) Boies, Schiller & Flexner LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
Boies, Schiller & Flexner LLP 333 Main Street
Armonk, NY 10504
Ellen Brockman
Boies, Schiller & Flexner LLP 575 Lexington Ave
New York, New York 10022 (212) 446-2300
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 2 of 26
TABLE OF CONTENTS
Page TABLE OP AUTHORITIES wisiscsusags ascicaintevcnsgnaaccaasnduceihos a0ncaans sinsaaipacddaeanniteaa saeieatetacsuanaentanaaces il I. BACK GROUND ws sisssncssatedaghcacesapssaness pu sieeaansannsenaierians sauces gh vaepianaadabanenanians maeaneaiass 1 I. PRPRCTCIIVITE IN I -cscg sec tessasensacyosani anesdataqeaeaassasauaexastonrw ie iv aance a ontnceiasba oseentecadtonan toons 6 A. Defendant Has Not Met Her Burden To Show Good Cause For PA Stay INDISGOVENY «. coesassssnceasdecateuass sac seein tani suncsoisendeswdsnasceayisndesoninieassdunneosntancnins 6 B. Ms. Giuffre’s Claim Is Meritorious And Defendant Has Not Made An Adequate Showing To Defeat The Claim. 0.0.0... ccc ceccecceeseceteeeteeeeeeeeseeenaeens 7 1. The Qualified “Self-Defense” Privilege Does Not Protect The Publication Of Deliberately False Statements... ees eeeeeeseeeeees 8 2: The Qualified Pre-Litigation Privilege Does Not Protect Mass Publication Of Deliberately False Statements For The PUEpOSE OT HArassIiG iit, <.ccesvesessdeanecaessicnedanesanvvecusancdaccevaranessuureavomeanchianssiees 9 3. The Complaint Properly Alleges Defamatory Statements. ........0..... eee 10 C Defendant Has Not Shown “Undue Burden”. 000.0... ceceeceeseeseeeeeeeeceeeenseeneeeeeeeeees 15 D. There Is Substantial Prejudice To Ms. Giuffre In Staying Discovery................... 18 IC SOU cass cesses pues pc sev cc asad css eve pesca me meses 19
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 3 of 26
TABLE OF AUTHORITIES
Cases
Bank of New York v. Meridien Biao Bank Tanzania, Ltd., EA PW IDS 3S: (SIN VOT i ton cantuaedeurctecceesnatdec nant unsendeeredeePesarienacteautioeeanetacecueiceneueandicl
Barrett v. Forest Labs., Inc.,
No. 12-CV-5224 (RA), 2015 WL 4111827 (S.D.NY. July 8, 2015) oo... eeeceeerseteceseeneeeeees Brach v. Congregation Yetev Lev D'Satmar, Inc.,
265 A.D, 2d 360, 696 N.Y.S. 2d 496 (2d Dep't, 1999). cccsscssccsassssvcssesacsansasecteassessanssaesevacssanes 12 Brooks v. Macy's, Inc.,
No. 10 CIV 5304 (BSJ/HBP), 2010 WL 5297756 (S.D.N.Y. Dec. 21, 2010) occ eeeeeeeeees 16
Celle v. Felipino Reporter Enterprises Inc. ZOD A MGS (20 Cit, ZOOOY seca sh te cciesnavessaesini caters estca susseducteuhy sesucswnaissnaotea Mepseuelanaesnatcuneentetsnnss 11
Chesney v. Valley Stream Union Free Sch. Dist., OO Be TUS CE IY ce 2G iota a atest cence aad c ce cebale atu ttecsc ada ctatieaetectacatacerctacens
Davis v. Boeheim, 24 WY 3d 262, 22 NE. 3 999 (2014) siclcttats bitscinwieautanensnanantete iamenuningaieaninttedinae 13
Dunn v. Albany Med. Coll., No. 09-CV-1031 (LEK/DEP), 2010 WL 2326137 (N.D.N.Y. May 5, 2010)... eeeeeseseeteens 19
Edwards v. National Audubon Society, Inc., SSOP 2 UG (20 Cir NO 7 7) osccusictenccuteenedesasnonnsnasinuscceaieeceaenunshesaboinesaddeessdeucsetebascnccssousereaseenden 2
Front v. Khalil, ZAI Ye Od) 715: (2015 ).x: ctsstivateavsdavawa area en eae ned eee ed
Geordiadis v. First Boston Corp., 1G 7 PRD, 24 SDN, Y 2 19 9G )rssincetecessvcasatanavencisiccanpbatocstasea teva chanexssashocuepearexteshanteasalanccaaascee 19
Harris v. Hirsh, 161 A.D, 2d 452, 53: N.Y.S. 20 735 (1st Dept 1990), sincsasisvesssacesnaveceasensseisnscasscesucssesvannssncsrennsans
Howard v. Galesi, MOE ER Dj SON V2 TOD nts cana yecalunsivacensacedacunsca sinus pneualinmnnverrsbaveornnaadsiantcuedewntevecntias 15
Howard v. Gutterman, DBR 3 I US EIN LY 1980) :accacccasasasanssatocwanniasencecavenniaaesbuiease ceed nae 19
ii
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 4 of 26
In re Chase Manhattan Corp. Securities Litigation, No. 90 Civ. 6092 (LMM), 1991 WL 79432 (S.D.N.Y. May 7, 1991) oo... eeeescseeseeeeneeseeees bs
Integrated Sys. And Power Inc. v Honeywell Int'l Inc., No, 09: CV 35874 (RPP), 2009 WL 2777076 (S.D.N-Y. Sept. 15.2009) cccssssesecesssndesieiardensiavbecsass |
Josei-Delerme v. Am. Gen. Fin. Corp., No. 08 Civ. 3166, 2009 WL 497609 (E.D.N.Y. Feb. 26, 2009) .....eccceeceseescseeeeceeeeeeeeeeeeeeenees -
Kaminester v. Weintraub, 131 A.D. 2d 440, 516 NLY.S. 2d 234 (1987)....csssssessscsessonssssscensssnnsosvesssssnsssuncssassanssvcdessoonsonsecs 12
Kermichi v. Weissman,
IS AsD.d 142. NG Ya8:.90. LOSUN. Ye Apes Dive 201A cscascsonsencsardinascrainsneaestiedexmmaicermeestens 8
Mase v. Reilly, 200 ALD As4, 201 SLY S410 App. Div: 1923 ) ivacssnndaciesleaadciseeerianaemeuen Maeemetania 12
McNamee v. Clemens, TOD FSi 2d SAE IYO igen acaesth Suds sepia sd eetate ase ad shacuidedcdinsds aiataetcebtpdacciadetaucs 11
Mills v. Polar Molecular Corp., MEW OCCA, 99 Sy) sexstace elie ccsiciasiton onan chces encbinsnuae seve sasseinceaaesatuswabaecsasecatoveaseneceuctennenentae: 7
Mirabella v. Turner Broadcasting Systems, Inc., No. 01 Civ. 5563 (BSJ), 2003 WL 21146657 (S.D.N.Y. May 19, 2003) ........eseeseeseereeeeeeeeeeees 8
Moran vy. Flaherty, Na.92 Cry; 3200,,1992- WL 276913 (8. N.Y. Sept, 25 1992 cies ccaspasicateienreicedeeacaecrshecsd 6
Morien v. Munich Reins. Am., Inc., 270 FB 269 (Conti, 2 O10 ) ics ccctessscccsasscatatad Saenianseiesasstanasdsaaistens tabeambinigiedsmeaanseteiet nade 7
Salgado v. City of New York, No. 00 CIV. 3667 (RWS), 2001 WL 88232 (S.D.N.Y. Feb. 1, 2001) oo... eeeeceecceseeeeteereeeeenees 6
Seung Jin Lee v. Tai Chul Kim, 16 Misc, 3d 1118(A), 847 N.Y.S..20d 899 (Sup. Ct, 2007) sssscscssrsscevassveracserevetenudionrsasareoereasivedes 2
Spinelli, v. National Football League, No. 13 CIV. 7398 (RWS), 2015 WL 7302266 (S.D.N.Y. Nov. 17, 2015) cece 6, 17, 18
Teicher v. Bellan, TPM 2d 247, 16d IGS 2 B42 (1959 ) suciciectsncsicetsahshntiasdtaussbshectawidhonasiainatstansabaaocmmadenal 8
Usov v. Lazar, No. 13 CIV. 818 (RWS), 2013 WL 3199652 (S.D.N.Y. June 25, 2013)... eceecceeeetteeeeeees 6
iii
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 5 of 26
Waltzer v. Conner, No. 83 CIV. 8806 (SWK), 1985 WL 2522 (S.D.N.Y. Sept. 12, 1985) ...cccecceeseeceeteeeees 16, 17
Weldy v. Piedmont Airlines, Inc., DB 2d 12 Cit 190 3 Vas cacxavertereteanseesvoanteraiud accented 8
Worldhomecenter.com, Inc. v. M.J. Resurrection, Inc., No, 11-CIV..3371 (RWS), 2012 WL 12922 (S.D.N.Y. Jan. 3, 2012) sdcsscisss cascdassiiassedisdesantisacvion 7
Other Authorities
Rodney A. Smolla, Vol. 1, Law of Defamation § 8:63 (2d ed. 2014)... eee ccceceseceteeeeeeeenees 8,9 Rodney A. Smolla, Vol. 1, Law of Defamation § 8:64 (2d ed. 2014)... eee ccceceteceteeeeeeeenees 8,9 Robert D. Sack, Sack On Defamation: Libel, Slander, and Related
Problemis-6 9.3: (40 6a, 2015), .c2c<csasbissconxatassequsaiensaanaxcsubnsncasenianaaneneanadcarsuswyieonocaseumaveancens 8, 9 Robert D. Sack, Sack On Defamation: Libel, Slander, and Related
Problenis-6 9.3.1 (4thed, 2015). ccesccsnusiaiieinendad en eee ae 8,9 Restatement (Second) of orig’ S G00 (1977 ) asccsncssivasnssaniantavaaiesnsssameauanareoneaseunedyeeanonseseenaarsacwnees 8,9 Restatement (Second) Of Kars G05 (1977 ) snccrnssexezonssajauavaiaratecspnnansdornsnndacccanansenaanerarensis 8,9
1V
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 6 of 26
Plaintiff, Virginia L. Giuffre, by and through her undersigned counsel, hereby files this Opposition to Defendant’s Motion to Stay, and in support thereof, states as follows:
I. BACKGROUND
This is a single-count defamation case, turning on whether Defendant defamed Ms. Giuffre by calling her a liar when Ms. Giuffre publicly reported the sexual abuse she suffered as a minor child. Ms. Giuffre has propounded narrowly tailored discovery that goes to the heart of the defamation, but rather than respond, Defendant has moved for a stay of all discovery pending her Motion to Dismiss.
Defendant’s public, defamatory attack on Ms. Giuffre is an unabashed effort to bully this sexual assault victim into silence. This is an old story. Defendant is calling Ms. Giuffre a “liar” to deflect attention from her own conduct. Defendant’s main argument is that discovery should be stayed because Defendant will be successful on her Motion to Dismiss as her defamatory statements are protected by certain qualified privileges. The case law is clear that the qualified privileges do not apply if a speaker deliberately published a false defamatory statement or if the statements are outside the scope of the qualified privilege because their purpose was to bully, harass, and intimidate. Ms. Giuffre is entitled to discovery to prove that not only were the Defendant’s defamatory statements false, but also that she knew they were false.
The publicly-available information convincingly proves that Defendant’s statement that she was not involved in the abuse of Ms. Giuffre is false. Overwhelming evidence — including documents, witness testimony, and even photographs of Defendant - not only clearly corroborate Ms. Giuffre’s report of the sex abuse, but also, importantly, show Defendant’s deep and
persistent participation. And obviously, because Defendant herself was helping orchestrate the
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 7 of 26
sexual abuse of Ms. Giuffre, her statements attacking Ms. Giuffre were not negligently uttered but deliberately made.
The evidence begins with the fact that the Federal Bureau of Investigation (FBI) and the U.S. Attorney’s Office for the Southern District of Florida identified Ms. Giuffre as a sexual assault victim of Jeffrey Epstein. See Declaration of Sigrid McCawley at Exhibit 1, Government’s September 9, 2008 Victim Notification Letter. Indeed, Epstein entered into a non- prosecution agreement with the federal authorities obligating him to pay restitution for his crimes against Ms. Giuffre. That agreement also protected any “co-conspirators” from prosecution.
The remaining question, then, is whether the Defendant was involved in this sexual abuse. Again, publicly-available evidence (well known to Defendant) reveals that she was at the heart of Epstein’s sex trafficking. Defendant cannot dispute that she recruited Ms. Giuffre at the young age of fifteen (15) to come “massage” Jeffrey Epstein at his Palm Beach mansion. Publicly available flight logs from convicted pedophile’ Jeffrey Epstein’s private jets show the Defendant flying close to 360 times and at least 20 of those fights were with Jeffrey Epstein and Ms. Giuffre, when she was a minor child’. See Decl. of Sigrid McCawley at Composite Exhibit 2, Flight Logs from Jeffrey Epstein’s Plane.°
While the Defendant attempts to argue that this victim’s claims are unbelievable because she is accusing prominent and wealthy people of sexual abuse, the Defendant provides no
explanation for why she had Ms. Giuffre, who was a minor child at the time, in the Defendant’s
' Jeffrey Epstein’s criminal case numbers were 2006-cf-009454A XX XMB and 2008-cf- 009381 AXXXMB.
* Over 30 underage victims of Jeffrey Epstein gave statements to the Palm Beach police during their investigations. One female stated she was recruited to come to Jeffrey Epstein’s home by Ghislaine
Maxwell. See Decl. of Sigrid McCawley at Composite Exhibit 5, Palm Beach Police Reports dated March 14, 2005 and July 28, 2006.
* Only a fraction of Jeffrey Epstein’s private jet flight logs are publically available making these numbers simply a snapshot of the actual flights.
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 8 of 26
London home, late at night with Prince Andrew’s arm wrapped around her bare waist — all shown with the Defendant smiling in the background. Despite the photographic evidence corroborating Ms. Giuffre’s account, Defendant is quick to publicly denounce Ms. Giuffre — a liar. See Decl. of Sigrid McCawley at Exhibit 3 (picture of Prince Andrew, Ghislaine Maxwell and Virginia Roberts Giuffre 17 years old at the time of the picture); see also Decl. of Sigrid McCawley at Exhibit 4, Alfredo Rodriguez July 29, 2009 Dep. Tr. at 200 - 202 (testimony regarding the close connection between Defendant Maxwell, Prince Andrew and Jeffrey Epstein).
During the investigation of Jeffrey Epstein, certain household staff were deposed. Alfredo Rodriguez, who was Jeffrey Epstein’s household manager, testified that the Defendant frequently stayed in Jeffrey Epstein’s home and assisted with bringing in young girls to act as “masseuses”’ for Jeffrey Epstein.
Q. “Okay. Going back to where we started here was, does Ghislaine Maxwell have knowledge of the girls that would come over to Jeffrey Epstein’s house that are in roughly the same age group as C. and T. (minor children) and to have a good time as you put it?
A. Yes.
Q. And what was her involvement and/or knowledge about that?
A. She knew what was going on.”
See Decl. of Sigrid McCawley at Exhibit 4, Alfredo Rodriguez July 29, 2009 Dep. Tr. at 176- 177. See also Decl. of Sigrid McCawley at Exhibit 4, Alfredo Rodriguez July 29, 2009 Depo Tr. at 96-101 (noting that high school age girls come to the home where Jeffrey Epstein and Ms. Maxwell reside). Juan Alessi, another household employee, also testified that young girls were regularly present at Jeffrey Epstein’s home where Ghislaine Maxwell resides. See Decl. of Sigrid McCawley at Exhibit 6, Juan Alessi September 8, 2009 Dep. Tr. at 10-18, 21-23.
Specifically, Juan Alessi informed the Palm Beach Police Detective as follows: “Alessi stated
that towards the end of his employment, the masseuses were younger and younger. When asked
3
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 9 of 26
how young, Mr. Alessi stated they appeared to be sixteen or seventeen years of age at most.” (emphasis added.) See Decl. of Sigrid McCawley at Composite Exhibit 5, Palm Beach Police Incident Report at p. 57.
On November 21, 2005, the Palm Beach Police Department took a sworn statement from house employee Juan Alessi in which he revealed that girls would come over to give “massages” and he observed Ms. Maxwell going upstairs in the direction of the bedroom quarters. See Decl. of Sigrid McCawley at Exhibit 7, November 21, 2005 Sworn Statement at 10. He also testified that after the massages, he would clean up sex toys that were kept in “Ms. Maxwell’s closet.” Jd. at 12-13. He added that he and his wife were concerned with what was going on at the house (/d. at 14) and that he observed girls at the house, including one named “Virginia.” Jd. at 21.
Defendant also had naked pictures of girls performing sexual acts on her computer according to Mr. Rodriguez. See Decl. of Sigrid McCawley at Exhibit 4, Alfredo Rodriguez August 7, 2009 Dep. Tr. at 311-312.
Q. “Did they appear to be doing any sexual?
A. Yes, ma’am.
Q. And in these instances were there girls doing sexual things with other girls?
A. Yes, ma’am.
Q. And I’m still talking about the pictures on Ms. Maxwell’s computer.
A. Yes, ma’am.”
Upon leaving his employment, Rodriguez testified that Defendant threatened him that he should not tell anyone about what happened at the house:
A. “T have to say something. Mrs. Maxwell called me and told me not to ever discuss or
contact her again in a threaten(ing) way.
Q. When was this?
A. Right after I left because I call one of the friends for a job and she told me this, but,
you know, I feel intimidated and so I want to keep her out...
Q. She made a telephone call to you and what precisely did she say?
A. She said I forbid you that you’re going to be — that I will be sorry if I contact any of
her friends again...She said something like don’t open your mouth or something like
that. I’m a civil humble, I came as an immigrant to service people, and right now you feel a little -I’m 55 and I’m afraid. First of all, I don’t have a job, but I’m glad this is
4
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 10 of 26
on tape because I don’t want nothing to happen to me. This is the way they treat you, better do this and you shut up and don’t talk to nobody and—
Q. When you say this is the way they treat, who specifically are you talking about when
you say that word they?
A. Maxwell. ”
See Decl. of Sigrid McCawley at Exhibit 4, Alfredo Rodriguez July 29, 2009 Dep. Tr. at 169 — 172,
This is not the first time Defendant has tried to avoid discovery about her conduct. Notably, in 2009, an attorney representing some of Epstein’s sexual abuse victims served Defendant Maxwell with a subpoena for a deposition in a civil case against Jeffrey Epstein. After extensive discussion and coordinating a convenient time and place, as well as ultimately agreeing to a confidentiality agreement prepared by Defendant’s then attorney, at the eleventh hour Maxwell’s attorney informed the victims’ attorney that Maxwell’s mother was very ill and that consequently Maxwell was leaving the country with no plans to return. The deposition was cancelled. Yet a short time later, Maxwell was photographed at a high-profile wedding in Rhinebeck, New York, confirming the suspicion that she was indeed still in the country and willing to say virtually anything in order to avoid her deposition. See Decl. of Sigrid McCawley at Composite Exhibit 8, Maxwell Deposition Notice; Subpoena and Cancellation Payment Notice, and January 13, 2015 Daily Mail Article.
Simply put, given the mountain of evidence proving that the Defendant was heavily involved in Epstein’s sex trafficking — and evaded answering questions about her involvement —
she is not entitled to any delay in the normal litigation process. There is no basis to grant
Defendant a stay of discovery.
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 11 of 26
I. ARGUMENT
A. Defendant Has Not Met Her Burden To Show Good Cause For A Stay In Discovery.
Defendant’s main argument is that a stay should be granted because she believes she will be successful in dismissing Ms. Giuffre’s defamation claim. If that were the standard, then discovery in every civil case would be stayed at the commencement of the action until the court ruled on the motion to dismiss because virtually all defendants in civil cases believe their motions to dismiss will be successful. Of course, Defendant’s far-fetched position is not the law. See Usov v. Lazar, No. 13 CIV. 818 (RWS), 2013 WL 3199652, at *8 (Sweet, J.) (S.D.N.Y. June 25, 2013) (citing Moran v. Flaherty, No. 92 Civ. 3200, 1992 WL 276913, at *1 (S.D.N.Y. Sept. 25, 1992)) (“[D]iscovery should not be routinely stayed simply on the basis that a motion to dismiss has been filed;”...“‘had the Federal Rules contemplated that a motion to dismiss under FRCP 12(b)(6) would [automatically] stay discovery, they would contain a provision.”’).
Defendant has not met her burden of showing good cause to justify a stay of discovery pending a ruling on her motion to dismiss.’ “The pendency of a dispositive motion is not an automatic ground for a stay’; instead, courts consider three factors: (1) whether a defendant has made a strong showing that the plaintiff's claim is unmeritorious, (2) the breadth of discovery and the burden of responding to it, and (3) the risk of unfair prejudice to the party opposing the
stay.” Spinelli v. Nat'l Football League, No. 13 CIV. 7398 (RWS), 2015 WL 7302266, at *2
* A party seeking a protective order has the burden to establish that such an order it warranted, showing good cause. See Bank of New York v. Meridien Biao Bank Tanzania Ltd., 171 F.R.D. 135, 143 (S.D.N.Y. 1997); Salgado v. City of New York, No. 00 CIV. 3667 (RWS), 2001 WL 88232, at *1 (S.D.N.Y. Feb. 1, 2001).
> “It, of course, is black letter law that the mere filing of a motion to dismiss the complaint does not constitute ‘good cause’ for the issuance of a discovery stay.” Barrett v. Forest Labs., Inc., No. 12-CV- 5224 (RA), 2015 WL 4111827, at *4 (S.D.N.Y. July 8, 2015) (citing Chesney v. Valley Stream Union Free Sch. Dist. No. 24, 236 F.R.D. 113, 115 (E.D.N.Y. 2006)).
6
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 12 of 26
(S.D.N.Y. Nov. 17, 2015) (citing Morien v. Munich Reins. Am., Inc., 270 F.R.D. 65, 66-67 (D. Conn. 2010); Josie-Delerme v. Am. Gen. Fin. Corp., No. 08 Civ. 3166, 2009 WL 497609, at *1 (E.D.N.Y. Feb. 26, 2009)).° Defendant has not met her burden as to any aspect of this test.
B. Ms. Giuffre’s Claim Is Meritorious And Defendant Has Not Made An Adequate Showing To Defeat The Claim.
Of course, in ruling on a motion to dismiss, the Court must take all allegations in the Complaint as true. Worldhomecenter.com, Inc. v. M.J. Resurrection, Inc., (Sweet, J.) No. 11 CIV. 3371 (RWS), 2012 WL 12922, at *2 (S.D.N.Y. Jan. 3, 2012) (citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993)). Taking the allegations here as true, Defendant does not, and cannot, show that Ms. Giuffre’s claim is unmeritorious. Ms. Giuffre has properly alleged a simple claim for defamation based on Defendant publically proclaiming that Ms. Giuffre is a “liar” when Ms. Giuffre reported her sexual abuse. While Defendant has tried to muddy the waters by raising privilege claims, those privileges do not save the Defendant. Defendant argues that two privileges protect her defamatory statements: (1) the “self-defense” privilege and (2) the “pre-litigation” privilege. But both of those privileges are qualified privileges, which disappear in situations where a speaker has published statements knowing they were false or when they were made to bully, harass and intimate, respectively. Here, Defendant has not only made defamatory statements which were plainly false, but also made the statements with the malicious intent to ruin the reputation of this sexual assault victim. Because Ms. Giuffre’s complaint repeatedly and specifically alleges that Defendant has knowingly lied about Ms. Giuffre, the Motion to Dismiss is frivolous.
° The cases Defendant cites to support her stay are readily distinguished. For example, Defendant relies on Integrated Sys. And Power Inc. v. Honeywell Int’l Inc., No. 09 CV 5874 (RPP), 2009 WL 2777076 at *1 (S.D.N.Y. Sept. 1, 2009) for the proposition that the Court should grant a stay, yet that case involved a
number of complicated antitrust claims against multiple distributors which would require extensive discovery. This case involves a single defamation claim between two individuals.
7
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1. The Qualified “Self Defense” Privilege Does Not Protect The Publication Of Deliberately False Statements.
As will be explained fully in the Opposition to Maxwell’s Motion to Dismiss, the “self- defense” privilege does not protect the Defendant for a number of reasons. Most fundamentally, the self-defense privilege is inapplicable because Ms. Giuffre has alleged that Defendant made not only false and defamatory statements, but did so deliberately. See, e.g., Complaint, ¥ 8 (“Maxwell made her false statements knowing full well that they were completely false. Accordingly, she made her statements with actual and deliberate malice, the highest degree of awareness of falsity.”) This allegation alone defeats the application of the privilege.’ As the Second Circuit has made clear, even if a qualified privilege otherwise applies, it “is nevertheless ‘forfeited if the defendant steps outside the scope of the privilege and abuses the occasion.’” Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 62 (2d Cir. 1993) (quoting Harris v. Hirsh, 161 A.D.2d 452, 453, 55 N.Y.S. 2d 735, 737 (1st Dep’t 1990) which quoted Prosser and Keeton on Torts §115, at 832 (Sth ed. 1984); see also Mirabella v. Turner Broadcasting Systems, Inc., Case. No. 01 Civ. 5563 (BSJ), 2003 WL 21146657, at *4 (S.D.N.Y. May 19, 2003) (court refusing to dismiss slander claim as premature based on assertion of qualified privilege); see also Rodney A. Smolla, Vol. 1, Law of Defamation § 8:63, 8:64 (2d ed. 2014); Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 9.3 and § 9.3.1 (4th ed. 2015); Restatement (Second) of Torts §§ 600, 605 (1977).
In Weldy, the Second Circuit explained that a Plaintiff may defeat an assertion of a qualified privilege by demonstrating abuse of the privilege “by proving that the defendant acted
(1) with common law malice, or (2) outside the scope of the privilege, or (3) with knowledge that
’ The case law also makes clear that a decision on a qualified privilege would be premature at the Motion to Dismiss stage. See Teichner v. Bellan, 7 A.D. 2d 247, 252, 181 N.Y.S. 2d 842 (1959); See also Kermichi v. Weissman, 125 A.D. 3d 142, 159, 1 N.Y.S. 3d 169, 182 (N.Y. App. Div. 2014). Accordingly, there is no basis for staying discovery based on the assertion of a qualified privilege.
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the statement was false or with a reckless disregard as to its truth.” /d. at 62. Defendant’s assertion of a privilege will also be defeated if the defamatory statement was made “in furtherance of an improper purpose.” /d. Here, Ms. Giuffre’s Complaint repeatedly alleges that not only was Defendant’s statement false, but also that she made the statement with malice and knowledge of its falsity. Accordingly, the Defendant’s motion to dismiss based on a claim of qualified “self-defense” privilege must be denied.
2. The Qualified Pre-Litigation Privilege Does Not Protect Mass Publication Of
Deliberately False Statements For The Purpose Of Harassment.
Defendant fares no better in asserting the “pre-litigation” privilege. As with the “self- defense privilege,” the privilege is (at most) a qualified privilege. And, like the self-defense privilege, at the motion to dismiss stage, the privilege disappears in the face of a well-pleaded allegation that the statement is not pertinent to a good faith anticipated litigation and, instead, the Defendant has deliberately published the false statements for improper purposes, outside the scope of the privilege. See Front, Inc. v. Khalil, 24 N.Y. 3d 713, 719-20 (2015) (“To ensure that such [pre-litigation] communications are afforded sufficient protection the privilege should be qualified... This requirement ensures that the privilege does not protect attorneys who are seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law or fact, in violation of counsel’s ethical obligations.”); See also Rodney A. Smolla, Vol. 1, Law of Defamation § 8:63; 8:64; (2d ed. 2014); Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 9.3 and § 9.3.1; (4th ed. 2015); Restatement (Second) of Torts §§ 600, 605 (1977). Simply put, Defendant’s statements are outside the scope of the qualified pre-litigation privilege because they were not made pertinent to a good faith anticipated litigation, but, instead, were made to bully,
harass, and intimidate the Defendant. Here, the 2015 actionable statement calling Ms. Giuffre’s
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claims “obvious lies” was issued by Maxwell’s press agent, Ross Gow, to the media for national and international publication. New York courts have only extended the pre-litigation qualified privilege to communications among counsel and parties directly discussing issues related to anticipated litigation, and Defendant cites to no case in which courts have extended this qualified privilege to a press agent who issues a press release. Defendant’s motion to dismiss on this ground is, accordingly, without merit and provides no basis for a stay of discovery.
3. The Complaint Properly Alleges Defamatory Statements.
Defendant’s motion to dismiss also argues that “‘/v/iewed in context,” the statements are not actionable. Here again, at the motion to dismiss stage, such an argument is frivolous. To prevail on her motion to dismiss, the