Latest / The Vault: The Epstein Files / Ghislaine Maxwell Motion For 37 B And C Sanctions Against Virginia Roberts (Part 2) (9/21/26)

Transcript

Ghislaine Maxwell Motion For 37 B And C Sanctions Against Virginia Roberts (Part 2) (9/21/26) · The Vault: The Epstein Files

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the Epstein Chronicles.
• 0:03
  Speaker 1: In this episode, we're going to pick right back up
• 0:05
  Speaker 1: where we left off with Ghislaine Maxwell and the Rule
• 0:10
  Speaker 1: 37B situation. One, sanctions available for failure to comply with
• 0:15
  Speaker 1: discovery order or provide Rule 26A disclosures. Federal Rule of
• 0:21
  Speaker 1: Civil Procedure 37B2 sets forth the sanctions for a party's
• 0:25
  Speaker 1: failure to comply with a court's discovery order, providing the
• 0:29
  Speaker 1: In relevant Part A, for not obeying a discovery order,
• 0:34
  Speaker 1: if a party or a party's officer, director, or managing agent,
• 0:38
  Speaker 1: or a witness designated under Rule 30B6 or 31A4, fails
• 0:44
  Speaker 1: to obey an order to provide or permit discovery, including
• 0:47
  Speaker 1: an order under Rule 26F35 or 37A, the court where
• 0:52
  Speaker 1: the action is pending may issue further orders. They may
• 0:56
  Speaker 1: include the following. 1. Directing that the matters embraced in
• 1:00
  Speaker 1: the order or other designated facts be taken as established
• 1:04
  Speaker 1: for purpose of the action as the prevailing party claims. 2.
• 1:09
  Speaker 1: Prohibiting the disobedient party from supporting or opposing designated claims
• 1:14
  Speaker 1: or defenses or from introducing designated matters in evidence. 3.
• 1:20
  Speaker 1: Striking pleadings in whole or in part. 4. Staying further
• 1:23
  Speaker 1: proceedings until the order is obeyed. dismissing the action or
• 1:27
  Speaker 1: proceeding in whole or in part, rendering a default judgment
• 1:30
  Speaker 1: against the disobedient party, or treating as contempt of court
• 1:35
  Speaker 1: the failure to obey any order except in order to
• 1:39
  Speaker 1: submit to a physical or mental examination. C. Payment Expenses
• 1:45
  Speaker 1: Instead of or in addition to the orders above, The
• 1:48
  Speaker 1: court must order the disobedient party, the attorney advising that party,
• 1:53
  Speaker 1: or both, to pay the reasonable expenses, including attorney fees
• 1:57
  Speaker 1: caused by the failure, unless the failure was substantially justified
• 2:01
  Speaker 1: or other circumstances make an award of expenses unjust. These
• 2:06
  Speaker 1: same sanctions are available for plaintiff's failure to provide required
• 2:10
  Speaker 1: disclosures under FedR-CIV Procedure 26A. Specifically, Rule 37C provides... 1.
• 2:18
  Speaker 1: Failure to disclose or supplement. If a party fails to
• 2:22
  Speaker 1: provide information or identify a witness as required by Rule
• 2:26
  Speaker 1: 26A or E, the party is not allowed to use
• 2:29
  Speaker 1: that information or witness to supply evidence on a motion,
• 2:33
  Speaker 1: at a hearing, or at a trial unless the failure
• 2:36
  Speaker 1: was substantially justified or is harmless. In addition to or
• 2:40
  Speaker 1: instead of this sanction, the court on motion and after
• 2:44
  Speaker 1: giving an opportunity to be heard. A. may order payment
• 2:49
  Speaker 1: of the reasonable expenses, including attorney fees caused by the failure, B,
• 2:54
  Speaker 1: may inform the jury of the party's failure, and C,
• 2:57
  Speaker 1: may impose other appropriate sanctions, including any of the orders
• 3:01
  Speaker 1: listed in Rule 37b-2a and i. Under Rule 37b-2, courts
• 3:09
  Speaker 1: enjoy broad discretion to sanction parties that fail to obey
• 3:13
  Speaker 1: discovery orders. This discretion includes, but is not limited to,
• 3:17
  Speaker 1: the power to issue an order dismissing the action or
• 3:20
  Speaker 1: proceeding in whole or in part. Naguib v. Public Health, No. 12, CV2561, ENVLB, 2014, WL3695965,
• 3:26
  Speaker 1: at 3. EDNY, July 24, 2014, the appeal was dismissed.
• 3:28
  Speaker 1: In exercise its broad discretion to order sanctions under Rule 37,
• 3:46
  Speaker 1: A court may consider a number of factors in issuing
• 3:49
  Speaker 1: sanctions for failure to comply with a court order, including 1.
• 3:53
  Speaker 1: the willfulness of the noncompliant party or the reason for
• 3:57
  Speaker 1: the noncompliance, 2. the efficiency of lesser sanctions, 3. the
• 4:02
  Speaker 1: duration of the period of noncompliance, and 4. whether the
• 4:06
  Speaker 1: noncompliant party had been warned of the consequences of his noncompliance.
• 4:11
  Speaker 1: Nieves v. City of New York, 208, FRD 531-535, SDNY 2002.
• 4:18
  Speaker 1: See also, South New England Telephone Company v. GLOB NAPS, Inc., 624F, 3D, 123,
• 4:28
  Speaker 1: 144 Second Circuit, 2010. This list is not exclusive, and
• 4:34
  Speaker 1: many courts also consider the prejudice to the opposing party
• 4:38
  Speaker 1: in the determination of the sanction that should be awarded.
• 4:41
  Speaker 1: The factors considered in evaluation precluded as a sanction for
• 4:45
  Speaker 1: non-disclosure under Rule 26A are 1. The party's explanation for
• 4:50
  Speaker 1: the failure to comply with the discovery requirement 2. The
• 4:55
  Speaker 1: importance of the precluded evidence 3. The prejudice suffered by
• 4:59
  Speaker 1: the opposing party as a result of having to prepare
• 5:02
  Speaker 1: to meet the new testimony and 4. The possibility of
• 5:06
  Speaker 1: a continuance. Michalak v. Town of Cheektowaga 302 FRD 25, 29-30,
• 5:15
  Speaker 1: WDNY 2014. Quoting Richie Risk, Link Strategies Trading, Inc., LTD,
• 5:22
  Speaker 1: Burris Coventry First, LLC, 280 FRD 147, 157, SDNY 2012.
• 5:29
  Speaker 1: The examination of these factors demonstrates that preclusion of plaintiff's
• 5:35
  Speaker 1: claims regarding physical and emotional distress damages is the appropriate
• 5:40
  Speaker 1: sanction for For plaintiffs' failure to comply with court's April 21,
• 5:45
  Speaker 1: 2015 discovery order and failure to provide medical information that
• 5:50
  Speaker 1: bear directly on or damages claim under Rule 26A3. A.
• 5:55
  Speaker 1: Rule 37B factors for failure to comply with court order. 1.
• 6:00
  Speaker 1: Plaintiffs' actions were willful. Noncompliance with discovery orders is considered
• 6:05
  Speaker 1: willful when the court's orders have been clear, when the
• 6:08
  Speaker 1: party has understood them, and when the party's noncompliance is
• 6:11
  Speaker 1: not due to factors beyond the party's control. Davidson v. Dean, 204, FRD, 251, 255, SDNY, 2001.
• 6:16
  Speaker 1: Citing Davis v. R2' s, 96, Civil Court, 7699, GBD, 2001, WL, 50887,
• 6:18
  Speaker 1: at 3, SDNY, January 19, 2001. The court's order at
• 6:37
  Speaker 1: the April 21, 2016 hearing was entirely clear. Plaintiff was
• 6:42
  Speaker 1: required to fully respond to the interrogatory identifying all of
• 6:46
  Speaker 1: her medical providers from 1999 to present, including the dates
• 6:51
  Speaker 1: of treatment, reasons for treatment, and costs of treatment, as
• 6:55
  Speaker 1: well as providing records relating to her treatment. Manager Declaration
• 6:59
  Speaker 1: Example E. For avoidance of doubt, undersigned counsel sent a
• 7:03
  Speaker 1: confirming letter to plaintiff's counsel setting forth the precise information required,
• 7:08
  Speaker 1: and requesting that it be produced in advance of plaintiff's
• 7:11
  Speaker 1: deposition so that plaintiff could fully examine on these issues.
• 7:16
  Speaker 1: Manager Declaration Example L At the hearing, plaintiff's counsel represented
• 7:21
  Speaker 1: to undersigned counsel and this court that the identities and
• 7:25
  Speaker 1: all medical records for plaintiff's treatment providers after the alleged
• 7:29
  Speaker 1: defamation had been provided. Manager Declaration Example E at 21-23
• 7:36
  Speaker 1: This was simply false. At this point, there are at
• 7:39
  Speaker 1: least five treatment providers that have not been disclosed. None
• 7:43
  Speaker 1: of their records were disclosed until after their identities were
• 7:46
  Speaker 1: uncovered through depositions. Plaintiff was and is capable of at
• 7:51
  Speaker 1: a minimum identifying the physicians and psychologists who have treated her.
• 7:55
  Speaker 1: The matter is fully in her control. Yet she completely
• 7:58
  Speaker 1: failed to identify at least five healthcare providers. These were
• 8:03
  Speaker 1: providers who she is currently seeing or as seen in
• 8:05
  Speaker 1: the recent past, who have prescribed her medication and are
• 8:09
  Speaker 1: treating her for emotional and mental issues, the very things
• 8:13
  Speaker 1: for which she is seeking damages. There can be no
• 8:16
  Speaker 1: argument that the failure to identify and produce records from
• 8:21
  Speaker 1: these doctors was anything but an intentional and willful violation. Additionally,
• 8:26
  Speaker 1: at her deposition, plaintiff intentionally concealed other treating physicians who
• 8:30
  Speaker 1: treated her. See Manager Declaration Example 1. As fully briefed,
• 8:35
  Speaker 1: the existence of other or intervening physical and emotional distress
• 8:39
  Speaker 1: damages was the primary purpose for requesting medical information and
• 8:43
  Speaker 1: treatment providers. See motion to compel at 18 and 19.
• 8:48
  Speaker 1: Plaintiff's intentional refusal to obey this court's order, including a
• 8:52
  Speaker 1: failure to disclose her treating psychologist, she is still seeing
• 8:56
  Speaker 1: to this day for the very injury she claims in
• 8:58
  Speaker 1: the lawsuit involved. is grounds for precluding her damages claim
• 9:02
  Speaker 1: for physical and emotional distress. 2. Lesser sanctions will be
• 9:07
  Speaker 1: insufficient and Ms. Maxwell has been prejudiced. Plaintiff's pattern of
• 9:12
  Speaker 1: discovery abuses and failure to disclose necessary and required information
• 9:17
  Speaker 1: makes it clear that no lesser sanction will deter plaintiffs
• 9:21
  Speaker 1: continuing discovery abuses. The purposes of Rule 37 sanctions is
• 9:26
  Speaker 1: to ensure that a party... will not benefit from its
• 9:28
  Speaker 1: own failure to comply, to obtain compliance with a particular
• 9:32
  Speaker 1: order issued, and to serve a general deterrent effect on
• 9:36
  Speaker 1: the case at hand and on other litigation provided that
• 9:40
  Speaker 1: the party against whom they are imposed was in some
• 9:43
  Speaker 1: sense at fault. Savarkowska v. AHRC Home Care Services, Inc., 2008,
• 9:48
  Speaker 1: WL 186-2061, SDNY, Jan. 22, 2008. Quoting Update Art Incorporated
• 9:59
  Speaker 1: versus Moshe. Pub Limited 843 F. 2D 67 71 2nd Circuit
• 10:05
  Speaker 1: 1988 Ms. Maxwell has been severely prejudiced by plaintiff's failure
• 10:11
  Speaker 1: to provide the required identifying information and documents from her
• 10:15
  Speaker 1: healthcare providers. One health care provider identified by plaintiff in
• 10:20
  Speaker 1: her deposition is a psychiatrist, Judith Lightfoot, who is located
• 10:24
  Speaker 1: in Australia. Plaintiff specifically claims, redacted, Obviously, Dr. Lightfoot has
• 10:30
  Speaker 1: relevant information concerning plaintiff's emotional state both before and after
• 10:36
  Speaker 1: the alleged defamatory statement. Indeed, her testimony, could conclusively prove
• 10:41
  Speaker 1: that plaintiff's mental state has been unaffected by the alleged defamation.
• 10:46
  Speaker 1: Despite this, plaintiff purposely omitted Dr. Lightfoot from her sworn
• 10:51
  Speaker 1: interrogatory responses and has not produced any records from Dr.
• 10:55
  Speaker 1: Lightfoot's recent treatment of plaintiff. With less than 10 days
• 11:00
  Speaker 1: left in discovery, arranging for and taking the deposition of Dr. Lightfoot,
• 11:04
  Speaker 1: a person living in a foreign country, is nearly impossible. Likewise,
• 11:09
  Speaker 1: plaintiff has seen another doctor, Dr. Donahue, redacted. She has
• 11:14
  Speaker 1: met with him redacted on two occasions, both after the
• 11:17
  Speaker 1: alleged defamatory statement. Yet plaintiff failed to identify this as
• 11:22
  Speaker 1: the nature of Dr. Donahue's treatment in her interrogatory responses,
• 11:27
  Speaker 1: nor did she identify the time frame in which she
• 11:30
  Speaker 1: was treated by Dr. Donahue. She has never provided his records. Obviously, Dr.
• 11:35
  Speaker 1: Donahue also has relevant information which was entirely unclear from
• 11:40
  Speaker 1: the interrogatory response provided. This information is all relevant, discoverable,
• 11:46
  Speaker 1: and was purposefully hidden by the plaintiff. Any action short
• 11:51
  Speaker 1: of precluding claims of physical, psychological, and emotional distress damages
• 11:56
  Speaker 1: will fall short of serving Rule 37's purpose to ensure
• 12:00
  Speaker 1: that a party will not benefit from its own failure
• 12:02
  Speaker 1: to comply with court orders. South New England 624 F. 3D
• 12:08
  Speaker 1: at 149. To permit plaintiff to get away with her
• 12:12
  Speaker 1: purposeful noncompliance would reward her by allowing her to conceal relevant,
• 12:17
  Speaker 1: discoverable information that might fully disprove causation between Ms. Maxwell's
• 12:22
  Speaker 1: statement and plaintiff's alleged physical symptoms and emotional distress. All right, folks,
• 12:27
  Speaker 1: we're going to wrap up right here. And in the
• 12:29
  Speaker 1: next episode, dealing with this topic, we're going to pick
• 12:32
  Speaker 1: up where we left off. All of the information that
• 12:35
  Speaker 1: goes with this episode can be found in the description box.