UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X Plaintiff, v. GHISLAINE MAXWELL Defendant. X 15-cv-07433-RWS RESPONSE TO PLAINTIFF'S NOTICE OF INTENT TO OFFER STATEMENTS UNDER, IF NECESSARY, THE RESIDUAL HEARSAY RULE Laura A. Menninger Jeffrey S. Pagliuca Ty Gee HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 EFTA00617178 Defendant Ghislaine Maxwell ("Ms. Maxwell") hereby files her Response to Plaintiff's Notice of Intent to Offer Statements Under, If Necessary, the Residual Hearsay Rule and states as follows: INTRODUCTION Plaintiff is correct that Ms. Maxwell will move, either in limine or at trial, to exclude the evidence listed in her notice. Many of the documents identified must be excluded as hearsay without applicable exceptions, or based on other evidentiary grounds. Those issues will be argued at the appropriate time. For purposes of this Response, Ms. Maxwell simply notes the fundamental errors in the Notice, failure to comply with the rules, and general principles that make the residual hearsay clause inapplicable. I. THE RESIDUAL HEARSAY CLAUSE CANNOT BE USED TO CURE UNAVAILABLE DECLARANT Plaintiff's first fundamental error is her failure of proof that the identified declarants are unavailable to be called as witnesses. Fed. R. Evid. 807(a)(3) requires the proponent of hearsay to demonstrate that the evidence "is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts." Courts routinely forbid use of the residual hearsay clause to admit hearsay statements from declarants who are available for trial or deposition. Absent evidence to the contrary, the proponent of the proffered evidence could obtain the actual declarant to testify testimony either at trial or in deposition by reasonable efforts. Elizararras v. Bank of El Paso, 631 F.2d 366 (5th Cir. 1980) (absent showing that bank officials could not be procured to testify about certain actions taken with respect to an account, testimony of the account holder concerning those actions was not admissible under the residual exceptions to the hearsay rule); United States v. Czachorowski, 66 M.J. 432, 436 (C.A.A.F. 2008) ("courts have found the residual hearsay exception inapplicable when the evidence is not 1 EFTA00617179 unreasonably difficult to obtain directly from an available declarant"); United States v. Scrim, 819 F.2d 996, 1001 (11th Cir. 1987) (holding Fed. R. Evid. 803(24) inapplicable absent showing that proponent made reasonable efforts to produce witness with direct, personal knowledge); United States v.= 792 F.2d 1019, 1027 (11th Cir. 1986) (error in the trial court's admission of hearsay evidence when the declarant could have been questioned about her own statements); As such, Rule 807 is inapplicable to all declarants absent a demonstration that they cannot testify directly. Such rule makes all the more sense for declarants who actually were deposed in this matter or will testify at trial. Plaintiff deposed David Rodgers, Juan Alessi and Ghislaine Maxwell. Having had the opportunity to question them concerning hearsay statements contained in the now proffered documents and to obtain their sworn testimony on such matters, Plaintiff should not now be permitted to resort to the improper use of hearsay evidence. Likewise, will testify at trial, and thus there is no need for her self- serving hearsay in the form of a heavily-redacted FBI 302 statement, with multiple other evidentiary problems as noted in detail below. II. PLAINTIFF FAILS TO IDENTIFIY THE PARTICULARS OF THE ACTUAL DECLARANTS Plaintiff acknowledges her duty to provide the "particulars" for each of the hearsay statement she presents, including the "declarant's name and address, so that the party has a fair opportunity to meet it." She, however, completely fails to provide this information for the vast majority of the declarants identified, as demonstrated in the chart below: Statement Particulars Declarant Name and Address Problem with Notice Telephone Log Book Names, addresses, Alfredo Rodriguez There is no testimony or other evidence to suggest that Mr. Rodriguez is the actual 2 EFTA00617180 "Black Book" phone numbers, email address, and other descriptive information (now deceased) "declarant" as to the names, addresses, phone numbers or any non-handwritten information Palm Beach Police Report Statements collected by the Palm Beach Police Department from witnesses who had been inside the Epstein mansion Names of witnesses listed in the re .ort• also Plaintiff fails to provide any contact information for any of the declarants, and fails to identify the witnesses listed in the report with their particulars; no basis to claim unavailability as to any declarant Message Pads from police trash pulls Telephone memo pads indicating calls received at the Epstein residence Various persons completing the memo pads, including Ghislaine Maxwell whose addresses or attorney is known to Defendant Plaintiff fails to identify each of the declarants for whom she seeks to introduce hearsay statements; no proof of unavailability. Non- Prosecution Agreement Statement of particulars of a nonprosecution agreement between Jeffrey Epstein and the U.S. Attorney's Office for Jeffrey Epstein, do attorney Jack Goldberger; attorney for the U.S. Attorney's Office for the Southern The "attorney for the U.S. Attorney's Office for the Southern District of Florida" is not properly identified, and may not be the only additional hearsay declarant as there are likely multiple drafters; no proof of unavailability 3 EFTA00617181 the Southern District of Florida Giuffre 007597- 007605 District of Florida Justice Department Victim Notification Statement to that she had been identified as a victim do U.S. Attorney's Office, Southern District of Florida Declarant not fully identified; likely additional declarants, including the declarant who provided ant purported "identification"; no proof of unavailability FBI 302 of interview of to FBI reporting sexual abuse Ms. FBI Agent name redacted, do FBI Office Unidentified "redacted" FBI Agent name is not properly identified; no proof of unavailability Deposition of Juan Allessi (2009) Statements re ardin presence at Epstein's home, massages given to girls and young adults, and Defendant's awareness and presence, as particularly desi nated in designations Juan Alessi. Available declarant; improper use of prior sworn testimony prohibited by Fed. R. Civ. P. 32 and 804. Bank statements Statements indicating Defendant authorized signatory on Epstein's bank accounts Colonia Bank, 125 Worth Ave., Palm Beach, FL 33480 Declarant not unavailable Deposition of Alfredo Statements regarding Alfredo Rodriguez is See Motion to Exclude Depositions In Toto and Motion in Limine re: Diane Flores 4 EFTA00617182 Rodriguez and handwriting on exhibits. Ms. Maxwell's involvement in massages given to girls and young adults, as particularly desi nated in designations deceased. New York Presbyterian Hospital Records for Statement indicating that was treated at NY Presbyterian Hospital for female medical related issues when she was under the age of IS. Declarant not unavailable; second declarant, the person providing the information put into form, is not identified CONCLUSION For the foregoing reasons, Ms. Maxwell requests that any attempt by Plaintiff to utilize the residual hearsay clause be prohibited. 5 EFTA00617183 Dated: February 24, 2017 Respectfully submitted, /s/ Laura A. Menninger Laura A. Menninger (LM-1374) Jeffrey S. Pagliuca (pro hac vice) Ty Gee (pro hac vice) HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 0203 Phone: Fax: Attorneys for Ghislaine Maxwell 6 EFTA00617184 CERTIFICATE OF SERVICE I certify that on February 24, 2017, I electronically served this Response to Plaintiff's Notice Of Intent To Offer Statements Under, If Necessary, The Residual Hearsay Rule via ECF on the following: Sigrid S. McCawley Meredith Schultz BOLES, SCHILLER & FLEXNER, LLP 401 East Las Olas Boulevard, Ste. 1200 Ft. Lauderdale Lauderdale FL 33301 E I Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Ave., Ste. 2 Ft. Lauderdale. FL 33301 Paul G. Cassell 383 S. University Street Salt Lake City. UT 84112 J. Stanley Pottinger 49 Twin Lakes Rd. South Salem m i NY 105 0 Is/ Nicole Simmons Nicole Simmons 7 EFTA00617185