1320 Jan 3, 2024 Attach Ment 18 Exhibit DE 184

Case 1:15-cv-07433-LAP Document 1320-18 Filed 01/03/24 Page 1 of 40

United States District Court

Southern District of New York
Virginia L. Giuffre,

Plaintiff, Case No.: 15-cv-07433-RWS
v.
Ghislaine Maxwell,
Defendant.
________________________________/
RESPONSE TO MOTION TO COMPEL ATTORNEY-CLIENT COMMUNICATIONS

AND ATTORNEY WORK PRODUCT MATERIALS
BOIES, SCHILLER & FLEXNER LLP
Sigrid McCawley (Pro Hac Vice)

Meredith Schultz (Pro Hac Vice)
Boies Schiller & Flexner LLP
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
333 Main Street
Armonk, NY 10504
TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................................................... i
TABLE OF AUTHORITIES....................................................................................................................... iii
INTRODUCTION............................................................................................................................... .........1
FACTUAL BACKGROUND....................................................................................................................... 2
The CVRA Case............................................................................................................................... ............2
The Dershowitz case........................................................................................................................ 4
The Florida Court Rejects a Waiver of Attorney Clients Privilege Argument................................5
Ms. Giuffre’s Deposition in the Defamation Case...........................................................................7
The Settlement of the Defamation Case..........................................................................................7
LEGAL STANDARDS FOR WAIVER.......................................................................................................8
A.Federal Rule of Evidence 502 Controls on the Issue of Waiver.................................................8
B.Florida Law............................................................................................................................... ..9
C. Federal Law.............................................................................................................................. 11
DISCUSSION............................................................................................................................... ..............14
I. MS. GIUFFRE DID NOT WAIVE HER ATTORNEY-CLIENT PRIVILEGE
WHEN EDWARDS AND CASSELL FILED AND PURSUED THEIR OWN
DEFAMATION ACTION AGAINST ALAN DERSHOWITZ...............................................14
A. The Florida Court Presiding over the Defamation Action Has Already Rejected the
Same Waiver Claim that Defendant is Advancing Here.................................................14
B. Actions by Cassell and Edwards Do Not Waive Ms. Giuffre’s Attorney-Client
Privilege.......................................................................................................................... 18
C. Ms. Giuffre’s Confidential Communications With Her Attorneys Were Never “At
Issue” in the Florida Dershowitz Litigation....................................................................19
D. Defendant Has Not Met the Other Requirements for Showing Waiver of Attorney-
Client Privilege................................................................................................................21
E. Ms. Giuffre Will Not Seek to Use Confidential Attorney-Client Communications
in her Action Here...........................................................................................................23
II. MS. GIUFFRE DID NOT WAIVE HER ATTORNEY-CLIENT PRIVILEGE BY
DENYING FABRICATED EVICENCE DURING HER DEPOSITION................................25
III.EDWARDS AND CASSELL HAVE NOT WAIVED WORK-PRODUCT
PROTECTION AND MAXWELL HAS NOT DEMONSTRATED NEED TO
PENETRATE THE PROTECTION.........................................................................................27
A. Work Product Protection Has Not Been Waived............................................................27
B. Defendant Has Not Proven “Need” to Penetrate Work-Product Protection....................29
i
IV.COMMUNICATIONS WITH ATTORNEY JACK SCAROLA ARE COVERED BY A

JOINT DEFENSE AGREEMENT AND ARE THUS PROTECTED BY ATTORNEY-
CLIENT AND WORK-PRODUCTION PROTECTION.........................................................31
CONCLUSION............................................................................................................................... ............31

ii
TABLE OF AUTHORITIES
Cases
Allen v. West Point-Pepperell, Inc.,
848 F.Supp. 423 (S.D.N.Y.1994)............................................................................................................13
Allied Irish Banks v. Bank of Am., N.A.,
240 F.R.D. 96 (S.D.N.Y. 2007)..............................................................................................................12
Am. Re-Ins. Co. v. U.S. Fid. & Guar. Co.,
40 A.D.3d 486, 837 N.Y.S.2d 616 (2007)..............................................................................................22
Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas,
No. 04 CIV 10014 PKL,
2009 WL 3111766 (S.D.N.Y. Sept. 28, 2009)........................................................................................14
Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A.,
210 F.R.D. 506 (S.D.N.Y. 2002)................................................................................................10,13,14
Brookings v. State,
495 So.2d 135 (Fla. 1986)....................................................................................................................... 23
Bus. Integration Servs., Inc. v. AT&T Corp.,
No. 06 CIV. 1863 (JGK), 2008 WL 318343 (S.D.N.Y. Feb. 4, 2008)...................................................18
Butler v. Harter,
152 So.3d 705 (Fla. 1st DCA, 2014).......................................................................................................30
Charter One Bank, F.S.B. v. Midtown Rochester, L.L.C.,
191 Misc. 2d 154, 738 N.Y.S.2d 179 (Sup. Ct. 2002)............................................................................28
Coates v. Akerman, Senterfitt & Eidson, P.A.,
940 So.2d 504 (Fla. 2nd DCA 2006)..........................................................................................11,12,20
Columbia Hosp. Corp. of S. Broward v. Fain,
16 So.3d 236 (Fla. 4th DCA 2009).........................................................................................................31
Connell v. Bernstein-Macaulay, Inc.,
407 F.Supp. 420 (S.D.N.Y.1976)............................................................................................................13
Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A.,
715 So.2d 1021 (Fla. 4th DCA 1998)......................................................................................................21
CSX Transp., Inc. v. Carpenter,
725 So.2d 434 (Fla. 2d DCA 1999)........................................................................................................30
Delap v. State,
440 So.2d 1242 (Fla. 1983).....................................................................................................................22
Diaz–Verson v. Walbridge Aldinger Co.,
54 So.3d 1007 (Fla. 2d DCA 2010)........................................................................................................20
Dillenbeck v. Hess,
73 N.Y.2d 278, 290, 536 N.E.2d 1126 (N.Y. 1989)...............................................................................14
Does 1 and 2 v. United States,
817 F.Supp.2d 1337 (S.D. Fla. 2011).......................................................................................................2
Does v. United States,
749 F.3d 999 (11th Cir. 2014)....................................................................................................................3
Eastern Air Lines, Inc. v. Gellert,
431 So.2d 329 (Fla. 3d DCA 1983)........................................................................................................28
Elliott Associates, L.P. v. Banco de la Nacion,
194 F.3d 363 (2d Cir. 1999)....................................................................................................................18
iii
Falco v. N. Shore Labs. Corp.,

866 So.2d 1255 (Fla. 1st DCA 2004)......................................................................................................31
Ferreira v. Capitol Specialty Ins. Corp.,
31 Misc. 3d 1209(A),
929 N.Y.S.2d 199 (N.Y. Sup. Ct. 2011).................................................................................................14
First Union National Bank v. Turney,
824 So.2d 172 (Fla. 1st DCA 2002)........................................................................................................10
Ford Motor Co. v. Hall-Edwards,
997 So.2d 1148 (Fla. 3d DCA 2008)......................................................................................................10
Genovese v. Provident Life and Accident Ins. Co.,
74 So.3d 1064 (Fla. 2011)...........................................................................................................12,20,29
Giuffre v. Maxwell, DE 135, 2016 WL 175918...................................................................................12,32
Goldman, Sachs & Co. v. Blondis,
412 F.Supp. 286 (N.D.Ill.1976)..............................................................................................................28
Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc.,
300 F.R.D. 590 (S.D. Fla. 2014).................................................................................................10,11,21
GUS Consulting GMBH v. Chadbourne & Parke LLP,
20 Misc. 3d 539, 858 N.Y.S.2d 591 (Sup. Ct. 2008)..............................................................................32
Hagans v. Gatorland Kubota, LLC/Sentry Ins.,
45 So.3d 73 (Fla. 1st DCA 2010)............................................................................................................10
Hearn v. Rhay,
68 F.R.D. 574 (E.D. Wash. 1975)...............................................................................................10,13,16
HSH Nordbank AG New York Branch v. Swerdlow,
259 F.R.D. 64 (S.D.N.Y. 2009)..............................................................................................................26
In re Bank of New York Mellon Corp. Forex Transactions Litig.,
66 F. Supp. 3d 406 (S.D.N.Y. 2014).......................................................................................................14
In re Bank of New York Mellon,
42 Misc. 3d 171, 177, 977 N.Y.S.2d 560 (Sup. Ct. 2013)......................................................................14
In re Cnty. of Erie,
546 F.3d 222 (2d Cir. 2008)........................................................................................................12,13,25
In re von Bulow,
828 F.2d 94 (2d Cir. 1987)................................................................................................................14,23
Jane Doe 1 v. United States,
No. 9:08-cv-80736 (S.D. Fla. July 7, 2008)..............................................................................................2
Jane Does 1 and 2 v. United States,
950 F.Supp.2d 1262 (S.D. Fla. 2013).......................................................................................................3
Jenney v. Airdata Wiman, Inc.,
846 So.2d 664 (Fla. 2d DCA 2003)........................................................................................................22
Jenney v. Airdata Wiman, Inc.,
846 So.2d 664 (Fla. 2nd DCA 2003)......................................................................................................11
Koon v. State,
463 So.2d 201 (Fla. 1985).................................................................................................................19,22
Lynch v. State,
2 So.3d 47 (Fla. 2008)............................................................................................................................. 23
McCullough v. Kubiak,
158 So. 3d 739 (Fla. 4th DCA, 2015)......................................................................................................22
McWatters v. State,
36 So.3d 613 (Fla. 2010)......................................................................................................................... 12
iv
Mitchell v. Superior Court,

37 Cal. 3d 591, 691 P.2d 642 (Cal. 1984)...............................................................................................26
Montana v. United States,
440 U.S. 147 (1979)............................................................................................................................... .17
Montanez v. Publix Super Markets, Inc.,
135 So. 3d 510 (Fla. Dist. Ct. App. 2014)..............................................................................................26
N. Broward Hosp. Dist. v. Button,
592 So.2d 367 (Fla. 4th DCA 1992).......................................................................................................31
Niesig v. Team I,
76 N.Y.2d 363, 558 N.E.2d 1030 (1990)................................................................................................23
Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP,
62 A.D.3d 581, 880 N.Y.S.2d 617 (N.Y. App. Div. 2009).....................................................................25
O'Brien v. Fed. Trust Bank, F.S.B.,
Paradise Divers, Inc. v. Upmal,
943 So. 2d 812 (Fla. Dist. Ct. App. 2006)........................................................................................28,29
Parklane Hosiery Co., Inc. v. Shore,
439 U.S. 322 (1979)............................................................................................................................... .17
Pereira v. United Jersey Bank,
Nos. 94 Civ 1565 & 94 Civ 1844, 1997 WL 773716 (S.D.N.Y. Dec.11, 1997).....................................13
Perrignon v. Bergen Brunswig Corp.,
77 F.R.D. 455 (N.D. Cal.1978)...............................................................................................................28
Procacci v. Seitlin,
Procter & Gamble Co. v. Swilley,
462 So.2d 1188 (Fla. 1st DCA 1985)......................................................................................................30
Rhone-Poulenc Rorer, Inc. v. Home Indem. Co.,
32 F.3d 851 (3d Cir.1994)....................................................................................................................... 13
Rhone–Poulenc Rorer, Inc. v. Home Indemnity Co.,
32 F.3d 851 (3d Cir. 1994)...................................................................................................................... 11
Rogers v. State,
742 So.2d 827 (Fla. 2d DCA 1999)........................................................................................................12
Rousso v. Hannon,
146 So.3d 66 (Fla. 3d DCA 2014)..........................................................................................................10
Savino v. Luciano,
92 So.2d 817 (Fla. 1957)...................................................................................................................12,20
Schetter v. Schetter,
239 So.2d 51 (Fla. 4th DCA 1970)..........................................................................................................18
Schnell v. Schnall,
550 F. Supp. 650 (S.D.N.Y.1982)...........................................................................................................19
Southern Bell Tel. & Tel. Co. v. Deason,
632 So.2d 1377 (Fla.1994)...................................................................................................................... 30
State v. T.A.,
528 So.2d 974 (Fla. 2d DCA, 1988).......................................................................................................30
Surf Drugs, Inc. v. Vermette,
236 So.2d 108 (Fla. 1970)....................................................................................................................... 28
Swidler & Berlin v. United States,
524 U.S. 399 (1998)............................................................................................................................... ...8
v
Taylor v. State,
855 So.2d 1 (Fla. 2003)........................................................................................................................... 22
Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker,
1 A.D.3d 223, 767 N.Y.S.2d 228 (2003)................................................................................................26
Universal City Development Partners, Ltd. v. Pupillo,
54 So.3d 612, 614 (Fla. 5th DCA, 2011)...........................................................................................28,31
West Bend Mutual Ins. Co. v. Higgins,
9 So.3d 655 (Fla. 5th DCA 2009)...........................................................................................................29
Zirkelbach Const. Inc. v. Rajan,
93 So.3d 1124 (Fla. 2d DCA 2012)........................................................................................................30
Zois v. Cooper,
268 B.R. 890 (S.D.N.Y. 2001)................................................................................................................17
Statutes
18 U.S.C. § 3771(a)(9)............................................................................................................................... ...3
Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771...............................................................................2
Fla. Stat. Ann. § 90.502.............................................................................................................................. 26
Fla. Stat. Ann. § 90.502(1)(c)....................................................................................................................... 9
Fla. Stat. Ann. § 90.502(2)....................................................................................................................11,22
Fla. Stat. Ann. § 90.502(3).......................................................................................................................... 11
Fla. Stat. Ann. § 90.502(4).......................................................................................................................... 26
Fla. Stat. Ann. § 90.507.............................................................................................................................. 12
N.Y. C.P.L.R. § 4503(a)............................................................................................................................. 14
Pub. L. 114-22, Title I, § 113(a), (c)(1), May 29, 2015, 129 Stat. 240.........................................................3

Rules
Fed. R. Evid. 502(c)............................................................................................................................... .9,18
Fed. R. Evid. 502(c)(1)............................................................................................................................... 27
Fed. R. Evid. 502(c)(2)............................................................................................................................... 27
Fed. R. Evid. 502............................................................................................................................... .1,8,27
Fla. R. Civ. P. 1.280(b)(3).......................................................................................................................... 27
Treatises
Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 502.6 (2015 ed.)................................................................18
Paul G. Cassell, Nathanael J. Mitchell & Bradley J. Edwards,
Crime Victims’ Rights During Criminal Investigations? Applying the Crime
Victims’ Rights Act before Criminal Charges are Filed, 104 J. CRIM. L. &
CRIMINOLOGY 59 (2014).......................................................................................................................... 2

OtherAuthorities
N.Y. C.P.L.R. 4503 (McKinney)................................................................................................................19
vi
Plaintiff Virginia Giuffre, by and through her undersigned counsel, hereby files this
response to Defendant’s Motion to Compel All Attorney-Client Communications and Attorney
Work Product Placed at Issue by Plaintiff and Her Attorneys (DE 164). The motion should be
denied in its entirety.
INTRODUCTION
Defendant argues Ms. Giuffre and two of her attorneys (Cassell and Edwards) have
somehow placed “at issue” her confidential attorney-client communications and therefore have
made a “sweeping waiver” of attorney-client privilege in this case. Defendant, however, fails to
cite the controlling law on this issue: Federal Rule of Evidence 502. Enacted in 2008, Rule 502
was designed to block exactly the kind of argument Defendant is making. Rule 502 provides
that litigants are entitled to the most protective law on attorney-client privilege, either state law
where the disclosure was made or federal law. The alleged disclosures in this case were made in
Florida, and under Florida law did not constitute any waiver of attorney-client privilege. Indeed,
Defendant does not reveal to the Court that the Florida judge who handled the case during which
the alleged “waivers” occurred (the Dershowitz case) has already considered – and rejected in
their entirety – the very arguments that Defendant is advancing here.
In addition, none of the alleged disclosures were made by Ms. Giuffre, who as the holder
of the privilege is the only individual with authority to waive it. Moreover, none of the alleged
disclosures concerned the substance of confidential attorney-client communications. And finally,
Ms. Giuffre will not be seeking to introduce or otherwise take advantage of any confidential
attorney-client communications in this case. Accordingly, for these and other reasons, the Court
should deny Defendant’s motion in its entirety.
1
FACTUAL BACKGROUND
The CVRA Case

The facts relevant to this issue begin in 2008, when attorney Bradley J. Edwards (soon
joined by co-counsel Professor Paul Cassell) filed a pro bono action in the Southern District of
Florida under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. Filed on behalf of Jane
Doe 1 (and later Jane Doe 2) the CVRA action alleged that federal government had failed to
protect the rights of Jane Doe 1 and other similarly situated victims of sex offenses committed by
Jeffrey Epstein. See Declaration of Sigrid McCawley (“McCawley Decl.”) at Exhibit 1,
Complaint filed in Jane Doe 1 v. United States, No. 9:08-cv-80736 (S.D. Fla. July 7, 2008). Jane
Does 1 and 2 achieved many victories in the case, including a ruling that the CVRA rights of
victims could apply before charges were filed, Does 1 and 2 v. United States, 817 F.Supp.2d
1337 (S.D. Fla. 2011);1 that they had standing to challenge the non-prosecution agreement
reached between the Government and Epstein, Jane Does 1 and 2 v. United States, 950
F.Supp.2d 1262 (S.D. Fla. 2013); and that plea negotiations were not protected from disclosure
by any federal rule of evidence, Does v. United States, 749 F.3d 999 (11th Cir. 2014). Congress
has also followed the developments in the case closely, recently amending the CVRA to insure
that in the future crime victims receive notice of any non-prosecution agreement entered into by
the Government. See Pub. L. 114-22, Title I, § 113(a), (c)(1), May 29, 2015, 129 Stat. 240, 241
(adding 18 U.S.C. § 3771(a)(9) to give crime victims “[t]he right to be informed in a timely
manner of any plea bargain or deferred prosecution agreement).

1
See generally Paul G. Cassell, Nathanael J. Mitchell & Bradley J. Edwards, Crime Victims’ Rights During
Criminal Investigations? Applying the Crime Victims’ Rights Act before Criminal Charges are Filed, 104 J. CRIM.
L. & CRIMINOLOGY 59 (2014).
2
On December 30, 2014, Cassell and Edwards filed a Motion Pursuant to Rule 21 for
Joinder in the Action on behalf two additional victims: Jane Doe 3 and Jane Doe 4. (Jane Doe 3,
Virginia Giuffre, subsequently decided to reveal her name). The joinder motion argued that Jane
Does 3 and 4 should be allowed to join the two existing plaintiffs in the action because they had
suffered the same violations of their rights under the CVRA. McCawley Decl., Exhibit 2, Jane
Does’ 3 and 4 Joinder Motion.2 To establish that they were “victims” of Epstein’s sex crimes
with standing to join the suit, Jane Does 3 and 4 alleged that they had suffered sexual abuse from
Epstein. For example, Jane Doe 3 alleged that she had been forced by Epstein to have sexual
relations with various persons, including Alan Dershowitz – who had been one of Epstein’s
defense attorneys negotiating the non-prosecution deal and arranging to keep it secret from the
victims. McCawley Decl., Exhibit 2 at 4. Jane Doe 3 also alleged that Defendant (i.e., Ghislaine
Maxwell) had participated in the sexual abuse of Jane Doe 3. Id. at 4-5.
After Dershowitz also filed a motion to intervene to contest the allegations (DE 282),
Jane Doe 3 filed a response to Dershowitz’s intervention motion. McCawley Decl., Exhibit 3,
Response to Motion to Intervene.3 The response explained that the allegations against
Dershowitz were relevant to at least eight separate issues in the CVRA case. Id. at 18-26. The
response also explained some of the evidence supporting the allegations against Dershowitz,
-
including:
x sworn testimony from one of Epstein’s household employees (Juan Alessi) that
Dershowitz came “pretty often” to Epstein’s Florida mansion and got massages
while he was there;

2
The Joinder Motion attached as an exhibit is a “corrected” motion, filed on January 2, 2015. As discussed below,
several paragraphs in this motion were later stricken by Judge Marra.
3
This document is currently restricted/under seal in the CVRA case, although an order sealing it is not found in the
Court record so far as can be determined. In light of the sealing of the document, we have marked aspects of this
pleading dealing with the document as confidential.
3
x sworn testimony from another of Epstein’s household employees (Alfredo

Rodriquez) that Dershowitz was present alone at the home of Epstein, without his
family, in the presence of young girls;
x invocations of Fifth Amendment rights to remain silent by three of Epstein’s

identified co-conspirators (Sarah Kellen, Nadia Marcinkova, and Adrianna
Mucinska) when asked questions about whether Dershowitz had been involved
with massages by young girls;
x refusals by Jeffrey Epstein to discuss Dershowitz’s involvement but instead to

invoke his Fifth Amendment right.
-
Id. at 26-38.
Several months later, on April 7, 2015, the Court (Marra, J.) denied Jane Doe 3 and Jane
Doe 4’s motion for joinder. McCawley Decl., Exhibit. 4, Order denying Jane Doe 3’s motion to
join. With regard to the eight separate issues as to which the allegations against Dershowitz
were relevant, the Court addressed only the first (establishing “victim” status) and found that 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.” Id. at 5.4 Accordingly,
the Court struck the factual details from the victims’ pleading as unnecessary at that time. The
Court specifically recognized, however, that the details could be reasserted by the parties to the
action – i.e., Jane Doe 1 and Jane Doe 2 – if they could “demonstrate a good faith basis for
believing that such details are pertinent to a matter presented for the Court’s consideration.” Id.
at 6. Following the Court’s ruling, additional litigation has proceeded in the CVRA case.
The Dershowitz case

4
In asserting that the non-parties were “not related to the respondent Government,” the Court did not address Jane
Doe 3’s argument that Dershowitz, as one of Epstein’s defense counsel, had helped negotiate the non-prosecution
agreement and helped to arrange to keep it secret from the victims.
4
While the CVRA case was moving forward in the Southern District of Florida on behalf
of Jane Does 1 and 2, separate litigation developed between the pro bono attorneys who had filed
the lawsuit (Cassell and Edwards) and Dershowitz. After the filing of the joinder motion in the
CVRA case, Dershowitz took the airwaves to attack not only Jane Doe 3, but also Cassell and
Edwards. Typical of these attacks was one levelled on CNN, in which Dershowitz alleged:
If they [Cassell and Edwards] had just done an hours’ worth of research and work,
they would have seen she is lying through her teeth. . . . They’re prepared to lie,
cheat, and steal. These are unethical lawyers. . . . They can’t be allowed to have
a bar card to victimize more innocent people.
Hala Gorani – CNN Live (Jan. 5, 2015).5
Cassell and Edwards then filed a state law defamation action against Dershowitz in
Broward County, Florida. See McCawley Decl., Exhibit. 5, Complaint in Edwards and Cassell
v. Dershowitz. The complaint alleged that Dershowitz had engaged in a “massive public media
assault on the reputation and character” of Cassell and Edwards. Id. at 4. Ms. Giuffre was not a
party to this defamation lawsuit.
The Florida Court Rejects a Waiver of Attorney Clients Privilege Argument

As Cassell and Edwards’ Florida defamation action moved forward, Dershowitz sought
to make an argument that they had somehow waived their client’s (Ms. Giuffre’s) attorney-client
privilege. On September 8, 2015, Dershowitz filed a motion to compel Cassell and Edwards to
produce documents and additional responses to interrogatories. McCawley Decl., Exhibit. 6,
Motion to Compel. In his motion, Dershowitz argued that Cassell and Edwards “have waived
any privilege or protection that would otherwise attach to responsive documents and information

5
Available at http://www.cnn.com/videos/world/2015/01/05/wrn-uk-sex-abuse-allegations-alan-dershowitz-
intv.cnn.
5
by bringing this defamation action placing at issue the truthfulness of Jane Doe No. 3’s
allegations against Dershowitz . . . .” Id. at 3-5. In his motion and reply pleading (McCawley
Decl., Exhibit 8, Reply in Support of Motion to Compel), Dershowitz argued that Cassell and
Edwards’ actions throughout the case constituted a waiver of attorney-client privilege.
Cassell and Edwards responded, arguing that Ms. Giuffre was not a party of the
defamation action and that she was the only person who could waive her privilege. McCawley
Decl., Exhibit 7 at 4-6, Response in Opposition to Motion to Compel. Cassell and Edwards also
argued that there had been no waiver because confidential attorney-client communications with
Ms. Giuffre were not “at issue” in the defamation case. Id. at 6-9. Cassell and Edwards also
later filed a sur-reply, further elaborating on the argument that Ms. Giuffre had not waived any
attorney-client privilege by publicly discussing her sexual abuse by Epstein and his associates.
McCawley Decl., Exhibit 9, Sur-Reply in Support Opposition to Motion to Compel. Cassell and
Edwards also explained that communications with Ms. Giuffre were protected not only
beginning in March 2014, but even earlier than that date when Ms. Giuffre understood that she
was obtaining legal services from Cassell and Edwards. Id. at 1.
Following this extensive briefing on waiver issues,6 on December 8, 2015, the Florida
Court (Lynch, J.) ruled, denying Dershowitz’s argument that attorney-client privilege had been
waived. McCawley Decl., Exhibit 10, Order Denying Motion to Compel. Specifically, the Court
denied the motion to compel, explaining “Pre March 2014 communications are protected by the
work product privilege and the witness has not waived the communications that were protected
by the attorney-client privilege. Also, there was no waiver by the [Cassell and Edwards] by
filing suit.” Id. at 1.

6
And following the filing of Cassell and Edwards’ summary judgment motion, filed on November 26, 2015.
6
Ms. Giuffre’s Deposition in the Defamation Case

As the defamation action moved forward, Dershowitz subpoenaed Ms. Giuffre to a
deposition. McCawley Decl., Exhibit 11, Composite Exhibit of excerpts from transcript of
deposition of Ms. Giuffre. During the deposition, held in Fort Lauderdale, Florida, Ms. Giuffre
was represented by the undersigned legal counsel, who asserted objections to revealing attorney-
client information where the questions called for revealing confidential attorney client
communications. See, e.g., id. at 22-23; 131-32; 173-74; 183; 208. During the deposition, Ms.
Giuffre specifically stated that “I decide not to waive my [attorney-client] privilege at this time.”
Id. at 174. Ms. Giuffre also denied that Cassell and Edwards had ever pressured her into
identifying someone as being involved in her sexual abuse. Id. at 200-12
The Settlement of the Defamation Case

Ultimately, Cassell, Edwards, and Dershowitz agreed to settle their defamation case.
That settlement included both a public statement and confidential monetary payments. As part
of the settlement, Cassell and Edwards withdrew their allegations against Dershowitz in the
defamation case contained in the then-pending summary judgment motion. McCawley Decl.,
Exhibit 12, Notice of Withdrawal of Summary Judgment Motion. As explained in the notice of
withdrawal of this motion, “the withdrawal of the referenced filings is not intended to be, and
should not be construed as being, an acknowledgement by Edwards and Cassell that the
allegation made by Ms. Giuffre were mistaken. Edwards and Cassell do acknowledge that the
public filing in the Crime Victims’ Rights Act case of their client’s allegation against Defendant
Dershowitz became a major distraction from the merits of the well-founded Crime Victims’
Rights Act by causing delay and, as a consequence, turned out to be a tactical mistake.” Id. All
these actions settling the Florida defamation case took place in Florida.
7
LEGAL STANDARDS FOR WAIVER

A. Federal Rule of Evidence 502 Controls on the Issue of Waiver

Defendant asks this Court to find that Ms. Giuffre has somehow waived her attorney-
client privilege regarding various communications in this case. This is no small step. The
attorney-client privilege is one of the “oldest recognized privileges for confidential
communications.” Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998)). The
privilege’s purpose is to “encourage full and frank communication between attorneys and their
clients and thereby promote broader public interests in the observance of law and the
administration of justice.” 524 U.S. at 403 (internal quotation marks omitted).
In setting out the legal standards pertaining to waiver of attorney-client privilege,
Defendant fails to cite the controlling – and protective – law on the issue. In a federal case,
issues of alleged waiver of attorney-client privilege must be resolved under the new standards in
Federal Rule of Evidence 502. In 2008, Congress enacted Federal Rule of Evidence 502, which
is entitled “Attorney-Client Privilege and Work Product; Limitations on Waiver.” New rule 502
places a number of protections in place to reduce litigation over claims that a party has somehow
“waived” attorney client privilege. See generally Adv. Comm. Note, Rule 502. Notably,
Defendant does not discuss, or even cite, Rule 502 in her motion.
The issue currently before the Court is specifically controlled by Rule 502(c), which
covers situations where a disclosure in a state proceeding is alleged, in a federal proceeding, to
establish waiver. Rule 502(c) provides the greater of protections found in federal or state law:
(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state
proceeding and is not the subject of a state-court order concerning waiver, the
disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal
proceeding; or
(2) is not a waiver under the law of the state where the disclosure
occurred.
8
As is readily apparent from the text of the rule, there are two separate ways in which a party can
prove that no waiver of attorney-client privilege has occurred: (1) by demonstrating that no
waiver exists under federal law; or (2) by demonstrating that no waiver exists under the state law
where the disclosure occurred. Between these two possibilities, the drafters of the rule decided
to apply the most protective law that governs waiver. See Fed. R. Evid. 502(c), Adv. Comm.
Notes (“The [Advisory] Committee [on the Federal Rules of Evidence] determined that the
proper solution for the federal court is to apply the law that is most protective of privilege and
work product” (emphasis added)).
B. Florida Law
C.
Florida’s protective law on the attorney-client privilege provides that neither an attorney
nor a client may be compelled to divulge confidential communications between a lawyer and
client which were made during the rendition of legal services. Fla. Stat. Ann. § 90.502(1)(c).
Communication denotes more than just giving legal advice; it also includes giving information to
the lawyer to enable him to render sound and informed advice. Hagans v. Gatorland Kubota,
LLC/Sentry Ins., 45 So.3d 73, 76 (Fla. 1st DCA 2010).
Under Florida law, while the burden of establishing the attorney-client privilege usually
rests on the party claiming it, First Union National Bank v. Turney, 824 So.2d 172, 185 (Fla. 1st
DCA 2002), when communications appear on their face to be privileged, the burden is on the
party seeking disclosure to prove facts which would make an exception to the privilege
applicable. Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, 1153 (Fla. 3d DCA 2008); Rousso
v. Hannon, 146 So.3d 66, 70 (Fla. 3d DCA 2014). In this case, Defendant does not appear to
dispute that an attorney-client privilege exists with regard to the communications between Ms.
Giuffre and her attorneys. Rather, Defendant’s argument is that the privilege has somehow been
9
waived. See Motion to Compel at 1-2. Therefore, under Florida law, Defendant must shoulder
the burden of overcoming the privilege. (Of course, because Defendant failed to even cite, much
less discuss, Florida law, she has not carried that burden.)
Defendant asserts that she can force disclosure of the privileged communications between
Ms. Giuffre and her counsel under the “at issue” doctrine. To establish this alleged waiver,
Defendant’s motion relies on a federal district court case – Hearn v. Rhay, 68 F.R.D. 574 (E.D.
Wash. 1975), which was cited in Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 210
F.R.D. 506. 509-10 (S.D.N.Y. 2002) (Ellis, M.J.). See Motion to Compel at 8. As discussed
below, as a matter of controlling federal authority, these cases have been repudiated by the
Second Circuit. And to the same effect, Florida law also rejects the expansive Hearn approach
to waiver. See Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc., 300 F.R.D. 590, 593-95 (S.D.
Fla. 2014) (discussing Florida authorities). Florida law disfavors waiver of the attorney-client
privilege and will not readily find an “at issue” waiver. See Guarantee Ins. Co. v. Heffernan Ins.
Brokers, Inc., 300 F.R.D. 590, 593 (S.D. Fla. 2014) (citing Coates v. Akerman, Senterfitt &
Eidson, P.A., 940 So.2d 504, 508 (Fla. 2nd DCA 2006) (refusing to find waiver based on the at-
issue doctrine)). In contrast to Hearn, under Florida law, at-issue waiver only occurs “when a
party ‘raises a claim that will necessarily require proof by way of a privileged communication.’”
Coates, 940 So.2d at 508 (quoting Jenney v. Airdata Wiman, Inc., 846 So.2d 664, 668 (Fla. 2nd
DCA 2003)) (emphasis in original). Indeed, in 2014, the Southern District of Florida rejected the
Hearn “at issue” analysis and instead, adopted the analysis of the Third Circuit as outlined in
Rhone–Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851 (3d Cir. 1994). Guarantee Ins,
300 F.R.D. at 595. The Third Circuit deemed the Hearn test to be of “dubious validity” because,
although it “dress[es] up [its] analysis with a checklist of factors, [it] appear[s] to rest on a
10
conclusion that the information sought is relevant and should in fairness be disclosed.” Id. at 864.
The Third Circuit specifically rejected Hearne because relevance is not the standard for
determining whether or not evidence should be protected from disclosure as privileged. Rhone,
32 F.3d at 863. Florida law tracks that of the Third Circuit. See 300 F.R.D. at 593-95 (citing
Florida case law).
Also, under Florida law, the client – not her attorneys – holds the attorney-client
privilege. See Fla. Stat. Ann. § 90.502(3); see also Fla. Stat. Ann. § 90.502(2) (a client has a
privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of
confidential communications when such other person learned of the communications because
they were made in the rendition of legal services to the client). Some Florida courts have even
recognized serious due process issues could be created by a procedure through which a client lost
their privilege without an opportunity to be heard in the proceedings. See, e.g., Rogers v. State,
742 So.2d 827, 829 (Fla. 2d DCA 1999). Under Florida law, so long as a client has a reasonable
expectation of privacy in the communication, under § 90.507, the privilege is protected.
McWatters v. State, 36 So.3d 613, 636 (Fla. 2010). Also under Florida law, only the client – not
her attorney – can waive attorney-client privilege. See Savino v. Luciano, 92 So.2d 817 (Fla.
1957), Coates v. Akerman, Senterfitt & Edison, P.A., 940 So.2d 504 (Fla. 2d DCA 2006), and
Genovese v. Provident Life and Accident Ins. Co., 74 So.3d 1064 (Fla. 2011).
C. Federal Law

Rather than discuss Florida privilege law, Defendant exclusively cites federal case law.
See Mot. to Compel at ii-iii (table of authorities citing only federal cases). Yet as this Court has
previously held in ruling on an earlier privilege motion made by the Defendant, state law
generally provides the rule of decision in this diversity case. See Giuffre v. Maxwell, DE 135 at
11
6, 2016 WL 175918 at * 6 (applying New York privilege law) (citing Allied Irish Banks v. Bank
of Am., N.A., 240 F.R.D. 96, 102 (S.D.N.Y. 2007) (“Because this Court’s subject matter
jurisdiction is based upon diversity . . . state law provides the rule of decision concerning the
claim of attorney-client privilege.”)). Accordingly, an argument can be made that New York
state law applies in this case7 – but Defendant does not explain why she jumps to federal law.
As explained above, in the particular context of a waiver argument, Federal Rule of
Evidence 502 applies the more protective of state law or federal law in determining whether a
waiver of privilege has occurred. In this case, the controlling federal law is at least as protective
as Florida law. The controlling federal law here comes from the Second Circuit, including In re
Cnty. of Erie, 546 F.3d 222 (2d Cir. 2008) – a case not even cited, much less discussed, by the
Defendant. In view of the importance of the attorney-client privilege, the Second Circuit in that
case held that any finding of waiver should be made with “caution.” Id. at 228.
Rather than cite this controlling Second Circuit precedent, Defendant relies on a 2002
case from this Court applying the Hearn “at issue” doctrine. See Mot. to Compel at 8 (citing
Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 210 F.R.D. 506. 509-10 (S.D.N.Y.
2002) (Ellis, Magistrate Judge) (quoting Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)).
Defendant goes on to argue that “courts have generally applied the Hearn [at issue] doctrine
liberally, finding a broad waiver of attorney-client privilege where a party asserts a position ‘the
truth of which can only be assessed by examination of the privilege communication.” Mot. to
Compel at 8 (internal quotation omitted).
Defendant fails to recognize that the Second Circuit has explicitly disavowed the Hearn
doctrine. In In re Cnty. of Erie, 546 F.3d 222 (2d Cir. 2008), the Second Circuit explained that
“[c]ourts in our Circuit and others have criticized Hearn and have applied its tests unevenly.” Id.

7
As a protective matter, Ms. Giuffre will also provide citations to New York state authorities in this response.
12
at 227-28.8 The Second Circuit also noted that the Hearn test “has been subject to academic
criticism. See, e.g., Richard L. Marcus, The Perils of Privilege: Waiver and the Litigator, 84
MICH. L. REV. 1605, 1628-29 (1986); Note, Developments in the Law-Privileged
Communications, 98 HARV. L. REV. 1650, 1641-42 (1985) (identifying “the faults in the Hearn
approach”). In light of these strong criticisms of Hearn, the Second Circuit decided that “[w]e
agree with its critics that the Hearn test cuts too broadly and therefore conclude that the District
Court erred in applying it here. . . . Nowhere in the Hearn test is found the essential element of
reliance on privileged advice in the assertion of the claim or defense in order to effect a waiver.”
546 F.3d at 229 (emphasis added). The Second Circuit held that, for an “at issue” waiver to
occur, “a party must rely on privileged advice from his counsel to make his claim or defense.”
Id. (emphasis added).
In light of the Second Circuit’s holding, recent cases from this Court have explained that
“reliance on privileged advice in the assertion of the claim or defense is an ‘essential element’ of
a claim of waiver.” Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, No. 04 CIV
10014 PKL, 2009 WL 3111766, at *16 (S.D.N.Y. Sept. 28, 2009).9 For the sake of
completeness, it may be relevant to note that New York state privilege law applies the same

8
The Second Circuit cited numerous cases, including cases from this Court – e.g., Pereira v. United Jersey Bank,
Nos. 94 Civ 1565 & 94 Civ 1844, 1997 WL 773716, at *3 (S.D.N.Y. Dec.11, 1997) (“Hearn is problematic insofar
as there are very few instances in which the Hearn factors, taken at face value, do not apply and, therefore, a large
majority of claims of privilege would be subject to waiver.”); Allen v. West Point-Pepperell, Inc., 848 F.Supp. 423,
429 (S.D.N.Y.1994) (noting that district courts within this Circuit have reached conflicting decisions in the
application of Hearn, and rejecting reliance “upon a line of cases in which courts have unhesitatingly applied a
variation of the Hearn balancing test”); Connell v. Bernstein-Macaulay, Inc., 407 F.Supp. 420, 422 (S.D.N.Y.1976)
(“The actual holding in [Hearn] is not in point because the party there asserting the privilege had expressly relied
upon the advice of counsel as a defense to the plaintiff's action.”); Rhone-Poulenc Rorer, Inc. v. Home Indem. Co.,
32 F.3d 851, 864 (3d Cir.1994) (deeming Hearn to be of “dubious validity” because, although it “dress[es] up [its]
analysis with a checklist of factors, [it] appear[s] to rest on a conclusion that the information sought is relevant and
should in fairness be disclosed”).
9
The Aristocrat Leisure case accordingly rejected a party’s reliance on the same authority that Defendant relies
upon here. See Aristocrat, 2009 WL 3111766 at *16 n.6 (discussing Bank Brussels Lambert v. Credit Lyonnais
(Suisse), S.A., 210 F.R.D. 506 (S.D.N.Y. 2010), and then noting in the next sentence that the Hearn test relied upon
by Bank Brussels’ “recently has been criticized by the Second Circuit on this very issue.”).
13
specific and protective standard. See In re Bank of New York Mellon, 42 Misc. 3d 171, 177, 977
N.Y.S.2d 560, 565 (Sup. Ct. 2013) (“’at issue’ waiver occurs ‘when the party has asserted a
claim or defense that he intends to prove by use of the privileged materials.’ An example of an
affirmative act that does constitute ‘at issue’ waiver of privilege is a party’s ‘assert[ing] as an
affirmative defense [its] reliance upon the advice of counsel.’”).10
DISCUSSION
I. MS. GIUFFRE DID NOT WAIVE HER ATTORNEY-CLIENT PRIVILEGE
WHEN EDWARDS AND CASSELL FILED AND PURSUED THEIR OWN
DEFAMATION ACTION AGAINST ALAN DERSHOWITZ.
Defendant’s lead argument is that Cassell and Edwards waived Ms. Giuffre’s attorney-
client privilege when they filed and pursued a defamation action against Alan Dershowitz. See
Mot. to Compel at 10. This claim is meritless for numerous reasons, including the fact (not
disclosed by Defendant) that this very argument has been fully litigated before the Florida court
handling that defamation action, which specifically rejected any finding of waiver.
A. The Florida Court Presiding over the Defamation Action Has Already
Rejected the Same Waiver Claim that Defendant is Advancing Here.
The claim that Cassell and Edwards somehow waived Ms. Giuffre’s attorney-client by
pursuing their own, personal defamation action against Dershowitz has already been the subject
of extensive briefing – and, ultimately, a Florida court ruling. Defendant has scoured the docket

10
New York and federal authorities also hold that when attorneys are not acting on the client’s behalf, they cannot
waive their client’s privilege. N.Y. C.P.L.R. § 4503(a); Dillenbeck v. Hess, 73 N.Y.2d 278, 290, 536 N.E.2d 1126,
1134 (N.Y. 1989) (“[T]he sine qua non of any evidentiary privilege is that it is personal to, and can only be waived
by, the privilege holder.”). See also In re von Bulow, 828 F.2d 94, 100-01 (2d Cir. 1987) (“Of course, the privilege
belongs solely to the client and may only be waived by him. An attorney may not waive the privilege without his
client's consent.”); In re Bank of New York Mellon Corp. Forex Transactions Litig., 66 F. Supp. 3d 406, 410
(S.D.N.Y. 2014) (same); Ferreira v. Capitol Specialty Ins. Corp., 31 Misc. 3d 1209(A), 929 N.Y.S.2d 199 (N.Y.
Sup. Ct. 2011) (“CPLR 4503 makes clear that an attorney cannot waive the attorney-client privilege rather waiver is
only effective when done by the beneficiary of the privilege or their personal representative.”).
14
in the Dershowitz defamation case to collect every flyspeck of information that she believes
support her argument that a “waiver” has taken place. See Mot. to Compel at 10-12 and
numerous associated exhibits. But, remarkably, she has not revealed to this Court the most
relevant information from the docket: that the Florida court considered the same waiver issues
and rejecting the same arguments that the Defendant now advances. This Florida court ruling,
applying Florida law, is controlling here.
As discussed above in the factual section of this response, in the Florida case, Dershowitz
filed a motion to compel advancing legal and factual arguments identical to those the Defendant
is advancing here. See McCawley Decl., Ex. 6 at 3, Dershowitz motion to compel (arguing that
Cassell and Edwards “have waived any privilege or protection that would otherwise attach to
responsive documents and information by bringing this defamation action placing at issue the
truthfulness of Jane Doe No. 3’s allegations against Dershowitz . . . .”). Id. at 3. Citing Hearn
v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975), Dershowitz claimed that information Ms.
Giuffre had confidentially provided to Cassell and Edwards as her attorneys had become “at
issue” in the defamation action. McCawley Decl., Ex. 6 at 4-5. Dershowitz argued broadly that
a whole host of alleged attorney-client communications were “at issue” in the case, including:
(1) Jane Doe No. 3’s allegations against Dershowitz asserted in the action
captioned Jane Doe #1, et al. v. United States of America, Case No. 08-cv-80736
(S.D. Fla.) (the “Federal Action”); (2) [Cassell and Edwards’] investigation into
Jane Doe No. 3’s allegations against Dershowitz; (3) [Cassell and Edwards’]
assertion in the Complaint that Dershowitz was an alleged participant in the
criminal conduct committed by Jeffrey Epstein (“Epstein”); and (4) Jane Doe No.
3’s whereabouts and activities during the time when she claims to have been “sex
slave” for Epstein.
15
Ex. 6 at 3. As the briefing on the issue continued, in an October 26, 2015 response filing,
Dershowitz argued that Ms. Giuffre’s public statements waived the privilege,11 along with
actions by her attorneys Cassell and Edwards. Ex. 8 at 5-8.12
After all these arguments were fully briefed, the Florida court (Lynch, J.) rejected
Dershowitz’s arguments that any waiver of the attorney-client privilege had taken place.
McCawley Decl., Ex. 10 at 1 (“Defendant/Counterclaim Plaintiff’s Motion to Compel
Production of documents and complete responses to interrogatories is hereby denied.”). In a
December 8, 2015, order, Judge Lynch provided a short explanation of his reasoning and entered
an order denying Dershowitz’s waiver motion. Id.
In her pending motion to compel, Defendant recycles the same arguments that
Dershowitz made, such as the claim that Cassell and Edwards waived privilege by filing suit
(Mot. Compel at 10), that her March 2011 interview with Scarola and Edwards was a waiver (id.
at 10), and other similar claims (id. at 11-13). But Dershowitz already litigated these issues a
few months ago in the Dershowitz case – and his claims were rejected by the Florida court.
Defendant is now collaterally estopped from relitigating these identical issues here, because
Dershowitz had a full and fair opportunity to litigate those issues and Defendant was in a
“common interest” agreement with Dershowitz at the time. The doctrine of collateral estoppel
protects litigants – and the courts – from relitigating identical issues and promotes efficiency by
barring unnecessary litigation. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326
(1979). As this Court has explained, for collateral estoppel to apply, there must have been a full

11
Dershowitz specifically listed the following public statements by Ms. Giuffre as illustrations of how she had
waived her privilege: (1) Ms. Giuffre’s March 5, 2011, interview with the Daily Mail; (2) Ms. Giuffre’s April 7,
2011, recorded telephone interview with attorneys Jack Scarola and Brad Edwards; (3) the January 2015 release of
Ms. Giuffre’s diary by Radar Online; (4) Ms. Giuffre’s statements to “numerous other third parties,” including
former boyfriends and the FBI; and (5) Ms. Giuffre’s filing of this suit against Defendant. Ex. 6 at 6-8.
12
Dershowitz specifically argued that (among other illustrations) Cassell’s answers to interrogatories and testimony
at his deposition in the case had waived privilege. Ex. 6 at 11-12.
16
and fair opportunity to litigate the decision that now controls and the issue in the prior action
must be identical to and decisive of the issue in the instant action. Zois v. Cooper, 268 B.R. 890,
893 (S.D.N.Y. 2001), aff'd sub nom. In re Zois, 73 F. App’x 509 (2d Cir. 2003). A non-party
can be bound by a decision, so long as her interests were “effectively represented.” Zois, 268
B.R. at 893.13 As this Court can readily determine from reviewing the pleadings Dershowitz
filed in the Florida case, see McCawley Decl. at Ex. 6 & 8, Dershowitz fully briefed identical
issues to those presented here. And he was effectively representing Maxwell at the time. The
elements of collateral estoppel apply.
Moreover, entirely apart from collateral estoppel doctrine, Judge Lynch’s decision is
highly persuasive. Judge Lynch was the presiding judge over the Dershowitz matter, so he was
intimately familiar with (for example) what matters were “at issue” in that particular case.
Moreover, Judge Lynch is, of course, a Florida judge skilled in applying Florida legal principles.
His ruling on whether a waiver of attorney client privilege existed under Florida law should be
given heavy weight here. See Elliott Associates, L.P. v. Banco de la Nacion, 194 F.3d 363, 370
(2d Cir. 1999). Finally, Defendant’s briefing entirely ignores even the existence of Judge
Lynch’s ruling. In such circumstances where the Defendant has failed to offer any reason for
questioning Judge Lynch’s holding, this Court should follow Judge Lynch’s lead and hold that
no waiver of the attorney-client privilege exists under Florida law. And, because Florida law
controlled when the disclosures took place, under Fed. R. Evid. 502(c), no waiver exists in this
proceeding.

13
Zois relied on New York law. Florida law is to the same effect, as is federal doctrine. See O'Brien v. Fed. Trust
Bank, F.S.B., 727 So. 2d 296, 298 (Fla. Dist. Ct. App. 1999) (“Collateral estoppel prevents relitigation of issues
where the identical issues previously have been litigated between the parties or their privies.”); Montana v. United
States, 440 U.S. 147, 153-54 (1979).
17
B. Actions by Cassell and Edwards Do Not Waive Ms. Giuffre’s

Attorney-Client Privilege.
Not only has Judge Lynch already ruled on the attorney-client privilege issue, but his
ruling was entirely correct. Defendant’s argument rests on the proposition that Cassell and
Edwards had authority to waive Ms. Giuffre’s privilege while they pursued their Florida
defamation action. But in filing their own, personal defamation claims against Dershowitz in a
lawsuit where Ms. Giuffre was not a party, Cassell and Edwards were not acting on Ms.
Giuffre’s behalf. Defendant never attempts to even explain, much less prove, how that
defamation action could have benefitted Ms. Giuffre. And Florida law is clear that when
attorneys are not acting on the client’s behalf, they cannot waive their client’s privilege. See
Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 502.6 (2015 ed.); Schetter v. Schetter, 239 So.2d
51, 52 (Fla. 4th DCA 1970).
To find that an attorney waived his client’s privilege, a clear record must exist concerning
the attorney’s attorney to waive privilege. See Bus. Integration Servs., Inc. v. AT&T Corp., No.
06 CIV. 1863 (JGK), 2008 WL 318343, at *2 (S.D.N.Y. Feb. 4, 2008). Here, to the contrary,
the record is clear that Ms. Giuffre did not authorize any waiver of her attorney-client privilege.
See McCawley Decl., Ex. 13, affidavit of Ms. Giuffre (Ms. Giuffre did not authorize any
waiver). Accordingly, under Florida law, Cassell and Edwards’ actions did not waive Ms.
Giuffre’s privilege.14
The main examples Defendant offers in support of her waiver argument come from a
summary judgment motion that Cassell and Edwards filed. See Mot. to Compel at 16. Of

14
For the sake of completeness, it is worth noting that both federal law and New York state law likewise require that
a client waive attorney-client privilege. See, e.g., Schnell v. Schnall, 550 F. Supp. 650, 653 (S.D.N.Y.1982) (no
waiver of attorney-client privilege where attorney testified at hearing without presence or authorization of client);
N.Y. C.P.L.R. 4503 (McKinney) (“Unless the client waives the privilege, an attorney . . . shall not disclose, or be
allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any
action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any
state, municipal or local governmental agency or by the legislature or any committee or body thereof.”).
18
course, that motion was filed on their behalf – not Ms. Giuffre’s. To be sure, that motion
contained (among other supporting information) a sworn affidavit from Ms. Giuffre.15 But the
routine step of submitting an affidavit is not a waiver of attorney-client protections, as discussed
at greater length in Part II.D., infra. And, in any event, Defendant does not include that affidavit
among her supporting materials to her motion, much less explain how the recitation of factual
information in that affidavit constitutes a waiver by Ms. Giuffre with respect to communications
with her attorneys. See Koon v. State, 463 So.2d 201, 203-04 (Fla. 1985) (no waiver when the
client merely discloses facts which were part of the communication with the client’s attorney).
Ms. Giuffre has not waived her privilege.
C. Ms. Giuffre’s Confidential Communications With Her Attorneys Were

Never “At Issue” in the Florida Dershowitz Litigation.
Defendant’s argument that Ms. Giuffre’s attorney-client privilege has been waived under
the “at issue” doctrine also fails under Florida law because her confidential communications
were never at issue in the Dershowitz litigation.
Florida law on when confidential attorney-client communications are at issue comes from
the Florida Supreme Court’s decision in Savino v. Luciano, 92 So.2d 817 (Fla. 1957). There, the
Florida Supreme Court announced the test for determining whether confidential communications
were “at issue” as whether a claim or defense would “necessarily require that the privileged
matter be offered in evidence.” Id. at 819 (emphasis added); see also Diaz–Verson v. Walbridge
Aldinger Co., 54 So.3d 1007, 1011 (Fla. 2d DCA 2010). More recent decisions from Florida

15
The “evidentiary support” for the summary judgment motion rested on 16 additional exhibits, including such
obviously non-privileged materials as a Palm Beach Police Department report; flight logs from Epstein’s jet;
excerpts from deposition testimony of Epstein, Juan Alessi, Alfredo Rodriquez, and Alan Dershowitz; photographs;
and Epstein’s telephone directory. See Menninger Dec., Ex. E at 28.
19
have emphasized that Savino does not mean that a party waives attorney-client privilege merely
by bringing or defending a lawsuit. Coates v. Akerman, Senterfitt & Edison, P.A., 940 So.2d 504
(Fla. 2d DCA 2006). Instead, waiver occurs only when a party “must necessarily use the
privilege information to establish its claim or defense.” Id. at 510-11 (emphasis added). Most
recently, in Genovese v. Provident Life and Accident Ins. Co., 74 So. 3d 1064, 1069 (Fla. 2011),
as revised on denial of reh’g (Nov. 10, 2011), the Florida Supreme Court cited both Coates and
Savino to hold that the “at issue” doctrine allows discovery of privileged material only when the
holder of the privilege – the client – raises the advice of counsel as a claim or defense in the
action and the communication is essential to the claim or defense. Id.
Under these restrictive standards, Ms. Giuffre’s communications were never at issue in
her attorneys’ personal, defamation case against Dershowitz. Consider, for example, a typical
allegation Cassell and Edwards’ complaint:
Immediately following the filing of what Defendant, Dershowitz, knew to be an

entirely proper and well-founded pleading, Dershowitz initiated a massive public
media assault on the reputation and character of Bradley J. Edwards and Paul G.
Cassell accusing them of intentionally lying in their filing, of having leveled
knowingly false accusations against the Defendant, Dershowitz, without ever
conducting any investigation of the credibility of the accusations, and of having
acted unethically to the extent that their willful misconduct warranted and
required disbarment.
McCawley Decl., Ex. 5 at 4 (¶ 17). As is immediately apparent, this allegation does not require
an examination of Ms. Giuffre’s confidential communications with her attorneys. Instead, it
requires an assessment of Dershowitz’s state of mind with regard to his knowledge of the
information that Cassell and Edwards had to support the filing of the allegations. And, as
supporting exhibits to the pleadings Cassell and Edwards filed made clear, the adequacy of their
investigation could be readily established from many sources that did not have any connection to
what Ms. Giuffre may or may not have told them in confidence. See, e.g., McCawley Decl., Ex.
20
3 at 26-38 (recounting information supporting allegations against Dershowitz, such as sworn
testimony from household employees and invocations of the Fifth Amendment by Epstein and
his co-conspirators).
To be sure, Dershowitz tried to make an argument that Ms. Giuffre’s communications
with her attorneys might have some arguable relevance to the case. But Judge Lynch rejected
that very argument – and quite properly so. Relevance is insufficient to waive privilege under
Florida law. Guarantee Ins, 300 F.R.D. at 594 (citing Coyne v. Schwartz, Gold, Cohen, Zakarin
& Kotler, P.A., 715 So.2d 1021, 1022 (Fla. 4th DCA 1998)). A client does not waive the
attorney-client privilege simply because her credibility could be impeached by communications
with her former attorney. See Jenney v. Airdata Wiman, Inc., 846 So.2d 664, 668 (Fla. 2d DCA
2003). Accordingly, under Florida law, Ms. Giuffre’s confidential communications with her
attorneys were never at issue in the Florida litigation.16
D. Defendant Has Not Met the Other Requirements for Showing Waiver of
Attorney-Client Privilege.
For the foregoing reasons, Defendant has failed to make the required showing for an “at
issue” waiver of attorney-client privilege. But even more fundamentally, Defendant has failed to
establish other elements necessary to find a waiver of attorney-client privilege. Defendant
repeatedly refers to routine litigation actions, such as the filing of in-court affidavits, as a basis
for finding some kind of waiver of privilege. See Mot. to Compel at 16. But it is obvious that
such actions do not waive attorney-client protection. Litigation requires some limited
communication to third parties — including the court and opposing counsel — of information
learned in the course of the attorney-client relationship. Therefore, Florida law recognizes an

16
The same result would obtain under New York state law. See, e.g., Am. Re-Ins. Co. v. U.S. Fid. & Guar. Co., 40
A.D.3d 486, 492, 837 N.Y.S.2d 616, 622 (2007) (the at-issue “doctrine applies where a party, through its affirmative
acts, places privileged material at issue and has selectively disclosed the advice”).
21
absolute privilege to protect attorneys’ statements made in communications that are preliminary
to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a
judicial proceeding. Fla. Stat. Ann. § 90.502(2); see also McCullough v. Kubiak, 158 So. 3d
739, 740 (Fla. 4th DCA, 2015). A waiver of the attorney-client privilege occurs only if the client
voluntarily discloses in court the substance of a communication with her attorney. See, e.g.,
Delap v. State, 440 So.2d 1242, 1247 (Fla. 1983) (criminal defendant sought to use in court
favorably testimony from his investigator while blocking inquiry into other testimony). No
waiver occurs when the client merely discloses facts which were part of the communication with
the client’s attorney. See Koon v. State, 463 So.2d 201, 203-04 (Fla. 1985); see also Taylor v.
State, 855 So.2d 1, 26 n.29 (Fla. 2003). Thus, the privilege attaches to the communication with
counsel, not to the underlying facts. Brookings v. State, 495 So.2d 135, 139 (Fla. 1986); see also
Lynch v. State, 2 So.3d 47, 66 (Fla. 2008).17 As a result, allegations that Giuffre disclosed to
third parties the same facts that she may have related to Cassell and Edwards, without any
evidence that she disclosed the substance of her confidential consultation with Edwards and
Cassell, cannot overcome her privilege.18
To hold otherwise would eviscerate the attorney-client privilege. Such a ruling would
mean that every time an attorney filed a declaration by his client that contained the factual basis
for the client’s claim, the opposing party would have the right to examine all privileged
communications. Defendant has not cited any authority either in Florida (or elsewhere) to

17
New York state privilege law is to the same effect. See, e.g., Niesig v. Team I, 76 N.Y.2d 363, 372, 558 N.E.2d
1030, 1034 (1990) (because “the privilege applies only to confidential communications with counsel (see, CPLR
4503), it does not immunize the underlying factual information . . . from disclosure to an adversary”).
18
As an illustration, Defendant notes that in 2011 Ms. Giuffre gave an interview to the Daily Mail. Mot. to Compel
at 15. But Defendant does not explain how that interview disclosed any attorney-client communications. And
because any such disclosures would have been extrajudicial, they would be narrowly construed. In re von Bulow,
828 F.2d 94, 103 (2d Cir. 1987).
22
support his extreme assertion that Ms. Giuffre waived her privilege simply by allowing an
affidavit to be filed in a court proceeding.
Defendant also claims Cassell, at his deposition in the Dershowitz case, waived attorney-
client privilege by discussing factual information related to his investigation of Ms. Giuffre’s
allegations (for example, flight log information). Cassell’s deposition testimony did not
constitute a waiver of Ms. Giuffre’s attorney-client privilege. Indeed, Ms. Giuffre’s own
separate attorney (undersigned counsel, Ms. McCawley, from the law firm of Boies, Schiller &
Flexner, LLP) raised a standing objection to Cassell answering any question that would require
divulging any attorney/client communications. McCawley Decl., Ex. 14, deposition excerpt of
Paul Cassell, Volume I, dated Oct. 16, 2015, at 39:24 – 40:2 (“Virginia Roberts does not waive
her attorney/client privilege with her lawyers, and they are not entitled to testify as to
information that she intended to be confidential that she communicated to her lawyers.”).19
Defendant also argues that because Cassell said at some (unspecified) point in his deposition that
he “knew” some (unidentified) information about Ms. Giuffre, he must have been revealing
attorney-client communications. Mot. to Compel at 17 (“Of course, the information [Cassell and
Edwards] “knew” about [Ms. Giuffre was a direct result of her attorney-client communications
with them . . . .”). But Cassell knew a vast amount of information about Ms. Giuffre from the
factual record in the case, such as the flight logs demonstrating flights that she took with Epstein
and Defendant on Epstein’s jet. Defendant’s logic is simply incorrect.
E. Ms. Giuffre Will Not Seek to Use Confidential Attorney-Client

Communications in her Action Here.
For all the reasons just explained, Ms. Giuffre has not waived her attorney-client
privilege through events that occurred in the Dershowitz case. But one additional point bears

19
In her “excerpts” from Cassell’s deposition, Defendant has not included this portion. See Menninger Dec., Ex. L.
23
emphasis: Defendant attempts to argue that the trial in this case will somehow be unfair if she
does not receive access to confidential attorney-client communications that Ms. Giuffre had with
her lawyers earlier. Mot. to Compel at 20-21. But regardless of what may or may not have been
at issue in the Dershowitz case, confidential communications will not be at issue here. For
example, Defendant writes that “[i]t would be prejudicial for [Ms. Giuffre] to be able to support
her claim in this case that she is not a liar using her attorney’s testimony . . . .” Id. at 21. To be
clear, Ms. Giuffre has no intention of calling, for example, Cassell and Edwards to testify at trial
in an attempt to support her claims. Thus, this will not be a case where it will be “misleading to
the court or any jury to hear testimony from [Ms. Giuffre’s] counsel about all the factual basis,
work product and thought process on which they relied in making the allegations in the Joinder
Motion,” Mot. to Compel at 22, for the simple reason that that Ms. Giuffre’s counsel will not be
witnesses in the case. Nor will Ms. Giuffre be presenting a “state of mind” defense that might
require a more extensive inquiry into attorney-client communications. See In re Cty. of Erie, 546
F.3d 222, 229 (2d Cir. 2008) (noting absence of good faith or state of mind issues as a reason for
not finding “at issue” waiver of privilege); Nomura Asset Capital Corp. v. Cadwalader,
Wickersham & Taft LLP, 62 A.D.3d 581, 582, 880 N.Y.S.2d 617, 618-20 (N.Y. App. Div. 2009)
(finding no waiver where plaintiff disavowed any intention to use confidential attorney-client
communications; relevance alone insufficient to put privileged materials “at issue” because, “if
that were the case, a privilege would have little effect”).
To be sure, at trial Ms. Giuffre will present factual testimony supporting her version of
events – just as, no doubt, Defendant will try to present testimony supporting her version. But
such testimony (from both sides) does not create any waiver of attorney-client privilege. Instead,
such testimony is simply the presentation of competing facts, from which the jury can decide
24
who is telling the truth. None of this creates any need for Defendant to force Ms. Giuffre to
reveal confidential communications.
II. MS. GIUFFRE DID NOT WAIVE HER ATTORNEY-CLIENT PRIVILEGE BY

DENYING FABRICATED EVICENCE DURING HER DEPOSITION.
Defendant spends significant time arguing that Ms. Giuffre’s answers to several
deposition questions about the absence of any communications from Cassell and Edwards that
she provide false information constituted a waiver of attorney client privilege. Mot. to Compel
at 11 (arguing that “never” answer to the question “Has Brad [Edwards] ever pressured you or
encouraged you in any way or under any circumstances at any time to provide false information
about Jeffrey Epstein” constituted a waiver of attorney-client privilege). While the arguments
above are sufficient to dispose of this claim, it is worth emphasizing several additional points
about this specific testimony.
First, disclosing the absence of communication is not the same as exposing any
communication. It is a fundamental requirement of a waiver argument that a communication be
exposed, see Fla. Stat. Ann. § 90.502 (extending privilege to a “communication between lawyer
and client”), not the absence of such a communication. See Montanez v. Publix Super Markets,
Inc., 135 So. 3d 510, 512-13 (Fla. Dist. Ct. App. 2014) (rejecting argument that client waived her
attorney-client privilege by stating that an interrogatory answer was not “her” answer because
this did not disclose the substance of her communications with her attorney). Cf. Mitchell v.
Superior Court, 37 Cal. 3d 591, 602, 691 P.2d 642, 647 (Cal. 1984) (“Relevant case law makes it
clear that mere disclosure of the fact that a communication between client and attorney had
occurred does not amount to disclosure of the specific content of that communication, and as
such does not necessarily constitute a waiver of the privilege.”).
25
Second, the questions highlighted by Defendant asked Ms. Giuffre whether she had ever
communicated with her attorneys Cassell and Edwards for purposes of committing a crime or
fraud. See Mot. to Compel at 11 (recounting questions). If such a communication involving
perjury had existed, it would not have been covered by the attorney-client privilege in the first
instance because it would have involved an on-going crime or fraud. See Fla. Stat. Ann. §
90.502(4) (“There is no lawyer-client privilege under this section when . . . [t]he services of the
lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the
client knew was a crime or fraud.”).20 Answering those questions by denying the existence of a
crime or fraud accordingly did not constitute waiver of confidentiality over any otherwise-
protected communication. Indeed, any other conclusion would essentially abolish the attorney-
client privilege. A party could simply accuse the opposing side of fabricating evidence and,
when that accusation was denied, argue that attorney-client privilege had been waived. This is
-
not the law.
Finally, it is important to note that throughout her deposition, Ms. Giuffre’s attorney
strenuously objected to any effort by Dershowitz to obtain attorney-client information. See
McCawley Decl., Exhibit 11, Composite Exhibit of Deposition Excerpts from the Deposition of
Virginia Giuffre at 131-32; 173-74; 183; 200-12.21 Clearly, at her deposition, Ms. Giuffre did
not voluntarily waive any attorney-client privilege she held.

20
Again, for sake of completeness, it is worth noting that federal and New York state law also contain a crime-fraud
exception to the attorney client privilege. HSH Nordbank AG New York Branch v. Swerdlow, 259 F.R.D. 64, 73
(S.D.N.Y. 2009); Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 1 A.D.3d 223, 224, 767 N.Y.S.2d
228 (2003) (attorney-client privilege “may not be invoked where it involves client communications that may have
been in furtherance of a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other
wrongful conduct”).
21
Once again, these objections are not included in Defendant’s excerpts from the deposition.
26
III. EDWARDS AND CASSELL HAVE NOT WAIVED WORK-PRODUCT

PROTECTION AND MAXWELL HAS NOT DEMONSTRATED NEED TO
PENETRATE THE PROTECTION.
A. Work Product Protection Has Not Been Waived.
For many of the same reasons that Ms. Giuffre has not waived her attorney-client
privilege, the work-product protection has not been waived. Fed. R. Evid. 502’s protections
against waiver apply not only to the attorney-client privilege but also to the work-product
doctrine. On the facts of this case, Rule 502 thus extends all work-product protections that exist
“under the law of the state where the disclosure occurred,” Fed. R. Evid. 502(c)(2) – i.e., Florida
law – as well as the protection that exists under federal law, Fed. R. Evid. 502(c)(1).
Florida law provides that work-product protections extend to “documents and tangible
things otherwise discoverable” if a party prepared those items “in anticipation of litigation or for
trial.” Fla. R. Civ. P. 1.280(b)(3). The rationale supporting the work-product doctrine is that one
party is not entitled to prepare his case through the investigative work product of his adversary
where the same or similar information is available through ordinary investigative techniques and
discovery procedures. Universal City Development Partners, Ltd. v. Pupillo, 54 So.3d 612, 614
(Fla. 5th DCA, 2011). The work-product of the litigant, his attorney or agent, cannot be
examined, absent rare and exceptional circumstances. Surf Drugs, Inc. v. Vermette, 236 So.2d
108, 112 (Fla. 1970).
In Florida (as elsewhere), a party “can make a limited waiver of its . . . work product
privilege.” Paradise Divers, Inc. v. Upmal, 943 So. 2d 812, 814 (Fla. Dist. Ct. App. 2006). A
waiver by disclosure only includes “other unrevealed communications only to the extent that
they are relevant to the communication already disclosed.” Id. (citing Eastern Air Lines, Inc. v.
Gellert, 431 So.2d 329, 332 (Fla. 3d DCA 1983)). Waiver by disclosure does “not mean . . . that
27
voluntary disclosure of confidential information effectively waives the privilege as to all
conversations, or the whole breadth of discussion which may have taken place.” Procacci v.
Seitlin, 497 So. 2d 969, 969-70 (Fla. Dist. Ct. App. 1986) (citing Goldman, Sachs & Co. v.
Blondis, 412 F.Supp. 286, 288 (N.D.Ill.1976)). Instead, waiver by disclosure is confined to “that
specific subject during that particular conversation.” Procacci, 497 So. 2d at 970 (quoting
Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455, 461 (N.D. Cal.1978)).22
As with her attorney-client privilege argument, Defendant has not even cited Florida law
on waiver of work-product protection, much less explained how she meets its demanding
requirements. Moreover, the illustrations she provides do not prove any general waiver of work-
product protection. For example, Defendant relies on the claim that Cassell and Edwards have
waived work-product protection by disclosing a transcript of a portion of a 2011 telephone
interview with Ms. Giuffre by attorneys Jack Scarola and Brad Edwards. But that recorded
interview was never a confidential communication between Mr. Giuffre and the lawyers, but
rather (as the transcript of the call itself makes clear) a communication that could be presented
“to any jury that might ultimately have to hear these facts.” McCawley Decl., Ex. 15 at 1,
transcript of Scarola/Edwards interview on April 7, 2011 (emphasis added). In other words, the
recorded call was simply the functional equivalent of an affidavit – and affidavits are routinely
disclosed with waiving work product protections, under the law of Florida and elsewhere.
Defendant also argues that Cassell and Edwards waived work-product protection by
filing a summary judgment motion in the Dershowitz case which contained supporting exhibits
(e.g., flight logs, sworn testimony by third-party witnesses, and other evidence). Mot. to Compel

22
New York state law is to the same effect. See Charter One Bank, F.S.B. v. Midtown Rochester, L.L.C., 191 Misc.
2d 154, 159, 738 N.Y.S.2d 179, 186 (Sup. Ct. 2002) (“ The disclosure of a document protected by the work-product
rule does not result in a waiver of the privilege as to other documents.”).

28
at 16. But providing information in support of a summary judgment motion is a routine step that
attorneys take every day. While the materials produced are obviously not subject to work
product protection, other materials and communications do not somehow become subject to
discovery. Paradise Divers, Inc., 943 So. 2d at 814.
B. Defendant Has Not Proven “Need” to Penetrate Work-Product Protection.

Defendant’s argument on work product protection also simply assumes that it is the same
as the attorney-client privilege and can be waived under an “at issue theory.” But the “at issue”
legal theory Defendant relies on to argue (incorrectly) that attorney-client privilege has been
waived applies only to that privilege. The work product doctrine is quite distinct from attorney-
client privilege, and application of the privileges and exceptions to them differ. See West Bend
Mutual Ins. Co. v. Higgins, 9 So.3d 655, 656 (Fla. 5th DCA 2009); Genovese v. Provident Life &
Accident Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011), as revised on denial of reh’g (2011). The
function of the work product doctrine is to protect counsel’s mental impressions. West Bend
Mutual, 9 So.3d at 656. To pierce the privilege, Defendant must show “that the substantial
equivalent of the material cannot be obtained by other means.” Southern Bell Tel. & Tel. Co. v.
Deason, 632 So.2d 1377, 1385 (Fla.1994). Defendant has not even identified any specific work-
product she claims to need, much less shown why she cannot get the underlying information
from other sources.
Under the law of Florida (and elsewhere23), to establish “need,” a party must present
testimony or evidence demonstrating the material requested is critical to the theory of the

23
Both federal and New York state law extend work product protections similar to those found in Florida law.
See, e.g., Hickman v. Taylor, 329 U.S. 495, 511 (1947); N.Y. Civ. Practice Law & Rules § 3101(c) (McKinney).
Indeed, New York state law may go even further than Florida’s and extends “absolute” work-product protection.
See Charter One Bank, F.S.B. v. Midtown Rochester, L.L.C., 191 Misc. 2d 154, 159, 738 N.Y.S.2d 179, 185 (Sup.
Ct. 2002) (section 3101(c) “affords absolute immunity from disclosure of attorney's work product.”).
29
requestor’s case, or to some significant aspect of the case. Zirkelbach Const. Inc. v. Rajan, 93
So.3d 1124, 1130 (Fla. 2d DCA 2012). “[W]ell established in Florida is the principle that the
unsworn analysis of a party’s attorney and/or a bare assertion of need and undue hardship to
obtain the substantial equivalent [is] insufficient to satisfy this showing.” Butler v. Harter, 152
So.3d 705, 712 (Fla. 1st DCA, 2014); see Procter & Gamble Co. v. Swilley, 462 So.2d 1188,
1194 (Fla. 1st DCA 1985); State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA, 1988)
(“[R]epresentations by counsel not made under oath and not subject to cross-examination, absent
a stipulation, are not evidence). Further, Florida courts have held that “the showing of need
encompasses a showing of diligence by the party seeking discovery of another party’s work
product.” Butler v. Harter, 152 So.3d 705, 712 (Fla. 1st DCA, 2014); see also CSX Transp., Inc.
v. Carpenter, 725 So.2d 434, 435 (Fla. 2d DCA 1999) (quashing order granting motion to
compel discovery because the record did not contain affidavits supporting plaintiff’s argument
that it was unable to obtain the substantially equivalent information by other means without
undue hardship); Falco v. N. Shore Labs. Corp., 866 So.2d 1255, 1257 (Fla. 1st DCA 2004)
(holding that need and undue hardship “must be demonstrated by affidavit or sworn testimony”);
N. Broward Hosp. Dist. v. Button, 592 So.2d 367, 368 (Fla. 4th DCA 1992), (“[T]he unsworn
assertions of plaintiff’s counsel were insufficient to constitute a showing of need and undue
hardship.”), called into doubt on other grounds as stated in Columbia Hosp. Corp. of S. Broward
v. Fain, 16 So.3d 236 (Fla. 4th DCA 2009).
Here, Defendant has ample information from which she can present her case. At the core
of this case is whether Ms. Giuffre “lied” when she said that the Defendant recruited her to be
sexually abused by Jeffrey Epstein. Defendant can, of course, testify to her interactions with Ms.
Giuffre, as well as call other witnesses regarding the circumstances of those interactions.
30
Defendant can also get information from her close friend, Epstein, about the circumstances of the
interactions. Defendant and Epstein are not only good friends but they have a “common interest
agreement” that facilitates transfer of information between the two of them. Finally, to make her
showing that she is unable to obtain “equivalent information” from other sources, Defendant
would have to explain in detail what other steps she has taken to secure information from other
sources, including not only Epstein but other witnesses present at Epstein’s mansion. Having
failed to do any of this, Defendant has not made a sufficient showing to obtain work-product
information. Pupillo, 54 So.3d at 614.
IV. COMMUNICATIONS WITH ATTORNEY JACK SCAROLA ARE COVERED

BY A JOINT DEFENSE AGREEMENT AND ARE THUS PROTECTED BY
ATTORNEY-CLIENT AND WORK-PRODUCTION PROTECTION.
As a tag-along argument at the end of her motion, Defendant argues that Ms. Giuffre has
not established the existence of a common interest or joint defense agreement that embraces Jack
Scarola, the attorney for Cassell and Edwards in the Dershowitz litigation. Mot. to Compel at
23-24. Disclosure of that agreement involved notice to the parties to the agreement. Now that
appropriate notice has been provided, the agreement can be – and has been – disclosed. See
McCawley Decl., Ex. 16, common interest agreement. In view of the existence of the valid
agreement, it is clear that the referenced communications involving Scarola are protected. See,
e.g., Guiffre v. Maxwell, No. 15 CIV. 7433 (RWS), 2016 WL 1756918, at *6 (S.D.N.Y. May 2,
2016) (noting common interest agreement protection) (citing GUS Consulting GMBH v.
Chadbourne & Parke LLP, 20 Misc. 3d 539, 542, 858 N.Y.S.2d 591, 593 (Sup. Ct. 2008)).
CONCLUSION

Defendant’s motion to compel should be denied in its entirety.
31
Dated: June 1, 2016
Respectfully Submitted,
BOIES, SCHILLER & FLEXNER LLP
By: /s/ Sigrid McCawley

Sigrid McCawley (Pro Hac Vice)
Meredith Schultz (Pro Hac Vice)
401 E. Las Olas Blvd., Suite 1200
Ft. Lauderdale, FL 33301
(954) 356-0011
David Boies
333 Main Street
Armonk, NY 10504
Bradley J. Edwards (Pro Hac Vice)

FARMER, JAFFE, WEISSING,
EDWARDS, FISTOS & LEHRMAN, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, Florida 33301
(954) 524-2820
Paul G. Cassell (Pro Hac Vice)

S.J. Quinney College of Law
University of Utah
383 University St.
Salt Lake City, UT 84112
(801) 585-520224
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 1st day of June, 2016, I electronically filed the
foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the
foregoing document is being served this day on the individuals identified below via transmission
of Notices of Electronic Filing generated by CM/ECF.
Laura A. Menninger, Esq.

24
This daytime business address is provided for identification and correspondence purposes only and is not intended
to imply institutional endorsement by the University of Utah for this private representation.
32
Jeffrey Pagliuca, Esq.

HADDON, MORGAN & FOREMAN, P.C.
150 East 10th Avenue
Denver, Colorado 80203
Tel: (303) 831-7364
Fax: (303) 832-2628
Email: [email protected]
[email protected]
/s/ Sigrid S. McCawley

Sigrid S. McCawley
33

1320 Jan 3, 2024 Attach Ment 18 Exhibit DE 184

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Case 1:15-cv-07433-LAP Document 1320-18 Filed 01/03/24 Page 1 of 40

United States District Court

Plaintiff, Case No.: 15-cv-07433-RWS

RESPONSE TO MOTION TO COMPEL ATTORNEY-CLIENT COMMUNICATIONS

BOIES, SCHILLER & FLEXNER LLP

Sigrid McCawley (Pro Hac Vice)

IV.COMMUNICATIONS WITH ATTORNEY JACK SCAROLA ARE COVERED BY A

Falco v. N. Shore Labs. Corp.,

Mitchell v. Superior Court,

response to Defendant’s Motion to Compel All Attorney-Client Communications and Attorney

denied in its entirety.

their entirety – the very arguments that Defendant is advancing here.

disclosures concerned the substance of confidential attorney-client communications. And finally,

should deny Defendant’s motion in its entirety.

The CVRA Case

Jeffrey Epstein. See Declaration of Sigrid McCawley (“McCawley Decl.”) at Exhibit 1,

manner of any plea bargain or deferred prosecution agreement).

x sworn testimony from another of Epstein’s household employees (Alfredo

x invocations of Fifth Amendment rights to remain silent by three of Epstein’s

x refusals by Jeffrey Epstein to discuss Dershowitz’s involvement but instead to

The Dershowitz case

Hala Gorani – CNN Live (Jan. 5, 2015).5

party to this defamation lawsuit.

The Florida Court Rejects a Waiver of Attorney Clients Privilege Argument

produce documents and additional responses to interrogatories. McCawley Decl., Exhibit. 6,

Edwards’ actions throughout the case constituted a waiver of attorney-client privilege.

was obtaining legal services from Cassell and Edwards. Id. at 1.

filing suit.” Id. at 1.

Ms. Giuffre’s Deposition in the Defamation Case

identifying someone as being involved in her sexual abuse. Id. at 200-12

The Settlement of the Defamation Case

LEGAL STANDARDS FOR WAIVER

attorney-client privilege is one of the “oldest recognized privileges for confidential

administration of justice.” 524 U.S. at 403 (internal quotation marks omitted).

In setting out the legal standards pertaining to waiver of attorney-client privilege,

covers situations where a disclosure in a state proceeding is alleged, in a federal proceeding, to

work product” (emphasis added)).

LLC/Sentry Ins., 45 So.3d 73, 76 (Fla. 1st DCA 2010).

Florida case law).

expectation of privacy in the communication, under § 90.507, the privilege is protected.

As explained above, in the particular context of a waiver argument, Federal Rule of

Compel at 8 (internal quotation omitted).

MICH. L. REV. 1605, 1628-29 (1986); Note, Developments in the Law-Privileged

Id. (emphasis added).

affirmative defense [its] reliance upon the advice of counsel.’”).10

applying Florida law, is controlling here.

actions by her attorneys Cassell and Edwards. Ex. 8 at 5-8.12

McCawley Decl., Ex. 10 at 1 (“Defendant/Counterclaim Plaintiff’s Motion to Compel

Production of documents and complete responses to interrogatories is hereby denied.”). In a

an order denying Dershowitz’s waiver motion. Id.

elements of collateral estoppel apply.

B. Actions by Cassell and Edwards Do Not Waive Ms. Giuffre’s

51, 52 (Fla. 4th DCA 1970).

routine step of submitting an affidavit is not a waiver of attorney-client protections, as discussed

Ms. Giuffre has not waived her privilege.

C. Ms. Giuffre’s Confidential Communications With Her Attorneys Were

were never at issue in the Dershowitz litigation.

action and the communication is essential to the claim or defense. Id.