Doe 3 v. Indyke

[[COURTLISTENER_SUBOPINION {"id":"10663692","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
fF   Patterson                                           www. pbwi.com 
        Belknap 

October 23, 2024                                                Daniel Ruzumna 
                                                             Partner 
                                                             (212) 336-2034 
                                                             druzumna@pbwt.com 
VIA ECF 

The Honorable Arun Subramanian 
United States District Judge 
500 Pearl Street, Courtroom 15A 
New York, NY 10007 
            Re:    Doe 3 v. Indyke et al., Case No. 24-cv-1204 (AS) 
Dear Judge Subramanian: 
            We write to request a conference to address Defendants’ request for reconsideration 
of Your Honor’s September 4, 2024 ruling, denying Defendants’ motion for the issuance of a letter 
of request seeking international judicial assistance to obtain Plaintiff  Jane Doe 3’s husband’s 
testimony (ECF No. 111); in the alternative, Defendants seek a letter of request for that testimony. 
            On August 16, 2024, Defendants moved for issuance of a letter of request to obtain 
deposition testimony from Doe’s husband, her parents, and her close rien              | ECF 
No. 86.  On September 4, 2024, the Court issued an order granting Defendants’ request as to Doe’s 
parents and a but denying it as to Doe’s husband.  ECF No. 111.  Defendants first raised 
reconsideration of the ruling during a telephonic conference with the Court that day.  Your Honor 
directed Defendants to take Doe’s parents’ and a depositions first to determine whether 
their testimony sufficiently addressed the relevant issues.  Defendants took those depositions on 
October 16 and 17, and their testimony revealed that those witnesses are not adequate substitutes 
for Doe’s husband, a.  In fact, the depositions demonstrated ‘har          deposition 
is crucial for Defendants to obtain relevant testimony that the other witnesses could not provide. 
      Jane Doe 3’s Husband Can Provide Testimony That Other Witnesses Cannot 
            Doe’s husband’s testimony is uniquely  relevant to this case for three reasons.  First, 
documentary evidence shows that Doe and BEB   ciscussed her work and travel with Epstein 
' Defendants filed their motion after weeks of seeking Doe’s counsel’s input on how best to obtain 
evidence abroad.  Ex. A (Email from D. Weiner to $8. McCawley, 07/29/2024 at  10:51  p.m.). 
Defendants specifically raised concerns about the potential delay in seeking international judicial 
assistance prior to the close of discovery but delayed their application as a “professional courtesy” 
to account for Doe’s counsel’s inability to contact their client.  Ex.  B (Email from F. Tabatabai to 
S.  McCawley,  08/09/2024  at  11:53  a.m.).   After  Defendants  secured  international judicial 
assistance with the aid of this Court, Plaintiff produced Doe’s parents and friend voluntarily.  In 
an effort to avoid unnecessary process this time, Defendants have asked Plaintiff whether she will 
voluntarily produce her husband if the Court grants this motion; Plaintiff said she would not. 

Patterson Belknap Webb & Tyler LLP   1133 Avenue of the Americas, New York, NY 10036   T 212.336.2000    F 212.336.2222 

Hon. Arun Subramanian 
October 23, 2024 
Page 2 
contemporaneously in 2014—-years before Doe’s marriage to a nl.  See Ex. A; Ex. B. 
Doe’s parents denied any knowledge of those communications and  were thus unable to  provide 
any substantive testimony  about them.  See Ex. C it Tr.) at 112:7-9; Ex.  D — 
Tr.) at 58:9-12.  Only        can provide testimony about what conversations Doe had regarding 
Epstein—including conversations that may contradict the factual account Doe has provided so far. 
            Second, a  is a unique source of relevant testimony for Doe’s  claim for 
emotional distress damages.“  ECF No. 1 at § 201; Ex. E (Raghavan Report) at 6.  Pe   □□□ 
as (see Ex.  G (Doe Dep.) at 318:6-8)—has a much closer 
view of her daily well-being  than her  parents or friend.  _ Doe’s expert, Dr. Chitra Raghavan, 
                                           .”  Ex. E  (Raghavan Report) at 23.  Doe’s 
ather and   friend   had  no   knowledge of  these incidents.?  Ex. C = Tr.) at 126:1-127:13; 
Ex: F i Tr.) at 101:6-102:17.  Only a is in a position to have observed any such 
sleep disruptions and testify as to whether they  occurred,  and,  if so, the severity   of those incidents. 
Likewise, Dr. Raghavan opines that Doe 
        ”  Raghavan Report at 6.  Doe’s  parents and        testified to the contrary.  See, e.g., 
Ex: F  jj       ae  i  1 103:23-25 
                  = Ex. 
                  ).  Because he lives with her 1n an intimate relationship,        is uniquely 
situated to testify   regarding his wife’s daily mental health. 
            Third, Doe directly put her husband’s testimony at issue by submitting an expert 
report on September 30, 2024 that purports to describe her relationship with her husband and seeks 
damages for injury  to it.  Ex.  E  (Raghavan Report)  at 24  (claiming ‘ 

                            |”).  At deposition, Doe testified that 
                                                  .  Doe Tr. at 322:22-24 | 
                                                                  5 114:20-115:2 
same).           testimony is crucial to understanding these discrepancies.  Doe’s parents and 
       were asked about Doe’s marriage and believed it is stable,  but could offer few specifics. 
       Tr. at 102:21-103:2 
                                    ee            Tr.) at 55:3-5  ( 
                                            (          Tr.) at 34 ( 
                                              ).         is the only witness who can 
shed light on Doe’s claim that she is entitled to damages for their allegedly injured relationship. 

* Defendants are prepared to drop their request if Doe withdraws her claims for emotional distress 
and treatment costs. 
3 Doe’s mother knew less and testified her husband has a closer relationship  with Doe.  See e.g., 

Page 3                                                                    
       The Confidential Marital Communications Privilege is Inapplicable 
         In its September 4 Order, the Court found that information sought from Doe’s 
husband, “including what Doe told him about her relationship with Epstein, is covered by the rule 
protecting confidential marital communications.”  ECF No. 111.  But the confidential marital 
communications privilege “can be successfully asserted only when there exists a marriage valid at 
the time the communication is made.”  In re Witness Before Grand Jury,
791 F.2d 234, 237
(2d 
Cir. 1986); see also Trammel v. United States,
445 U.S. 40, 51
(1980) (confidential marital 
communications privilege protects “information privately disclosed . . . in the confidence of the 
marital relationship”).4  Defendants seek testimony about Doe’s communications with 
regarding Epstein in 2014, years before they married in  .  Ex. G (Doe Tr.) at 101:8–22; 
Ex. G (Doe Tr.) at 13:18.  Thus, these communications are not protected marital communications.   
         Likewise, the testimony Defendants seek regarding   observations of 
Doe’s demeanor and his relationship to Doe over the years does not implicate communications 
between     and Doe; rather, it concerns   observations of Doe before and after they 
were married.  See Engelmann v. Nat’l Broad. Co., No. 94-CV-5616 (MBM) (AJP),
1995 WL 
214500
, at *3 (S.D.N.Y. Apr. 10, 1995) (“the communications privilege. . . does not include 
observations made of a spouse's activities”).                             
         In any event, Doe waived her confidential marital communications privilege by 
offering her own and her expert’s testimony about her communications with her now-husband.  
See United States v. Premises Known as 281 Syosset Woodbury Rd., Woodbury, N.Y.,
71 F.3d 
1067
, 1072 (2d Cir. 1995); see, e.g., Ex. G (Doe Tr.) at 52:12–20; 101:12-102:22; 104:12-109:17; 
234:6–36:9.  As this testimony relates to the same topics about which Defendants intend to ask 
Doe’s husband, Doe has waived any confidential marital communications privilege.  This Court 
should not permit Doe to selectively wield the privilege and deny Defendants the opportunity to 
investigate topics that Doe herself has put at issue.                     
                   *    *    *    *    *                                 
         Doe  has  repeatedly  maligned  Defendants’  intent  in  seeking  fact  depositions, 
suggesting that Defendants should refrain from taking discovery while she publicly accuses them 
of being sex traffickers and seeks a judgment against them personally.  (ECF No. 194 at 16 & n.2.)  
That is contrary to the law, which guarantees Defendants the opportunity to defend themselves and 
does not require them to refrain from seeking discovery of relevant witnesses at Plaintiff’s request.  
Defendants should be permitted to “follow [] discovery (whatever it is) as far as it leads,” including 
by “gather[ing] witnesses . . . to bolster their case.”  ECF No. 134 at 4 (concluding Defendants are 
not prejudiced by Plaintiff’s anonymity because they can still identify and seek discovery from 
witnesses).  Plaintiff is not entitled to simultaneously maintain claims and avoid discovery. 
4 Trammel also addresses the adverse spousal privilege, which is inapplicable here because (1) it 
applies only in criminal cases, Chevron Corp. v. Donziger, No. 11-CV-0691 (LAK),
2019 WL 
2235882
, at *1 (S.D.N.Y. May 13, 2019), and (2) the privilege can be invoked only by the witness-
spouse (here, Doe’s husband), Trammel,
445 U.S. at 53
.                    
Hon. Arun Subramanian 
October 23, 2024 
Page 4 
                                           Respectfully submitted, 

                                                 AA Ad  Mtn  ———" 

                                            Daniel S. Ruzumna 
cc: All counsel of record (via ECF) 
    Defendants’  motion  for  reconsideration  is  GRANTED.  The  Court  agrees  that  the  marital- 
    communications  privilege  cannot  be  invoked  with  respect  to  pre-marital  communications  or 
    observations about Doe. Of course, to the extent any testimony is elicited that is privileged, it won't be 
    allowed in at trial or considered on any motion. The Court also agrees that Doe put her relationship with 
    her husband at issue by seeking damages in the form of treatment costs to address the harm that 
    Epstein's abuse caused her relationship, among other things. The Court does not see defendants’ request as 
    an attempt to pressure Doe into dropping the lawsuit, but rather an attempt to defend themselves, which 
    they are entitled to do. 
    That said, defendants have agreed to drop this request if Doe withdraws her request for emotional distress 
    and treatment costs, and Doe has agreed to stipulate that she and her husband had a good relationship. So 
    the  parties  should  see  if they  can  reach  an  agreement  that  would  obviate  the  need  for  Doe's 
    husband's testimony. 
    If not,  defendants  should  submit  a  letter rogatory to  the  Court by  October  31,  2024.  Given the 
    administrative  difficulties  associated  with  coordinating  with  a  foreign  government  and  traveling 
    abroad, defendants will have until November 30, 2024, to take Doe's husband's testimony. 
    The corresponding motions to seal are granted. The Clerk of Court is respectfully directed to terminate 
    the motions at ECF No. 200, 201, 202, 210, 211, and 212. 
    SO ORDERED. 

    Arun Subramanian, U.S.D.J. 
    Date: October 28, 2024