EFTA00622175Set 9
2005-02-1754p7,431w
DISCUSSION 2
I. THE FACTORS IDENTIFIED IN THE SECOND CIRCUIT'S DECISION IN
LIBUTTI V. UNITED STATES POINT IN FAVOR OF ALLOWING
TO CALL JEFFREY EPSTEIN FOR PURPOSES OF OBTAINING ... ADVERSE
INFERENCE. 2
A. Federal Law Controls This Procedural Issue 2
B. The LiButti Factors Point in Favor of Allowing to Call Epstein. 2
1. The Nature of the Relevant ... WorldCom, Inc. Securities Litigation,
2005 WL 375315 (S.D.N.Y. Feb. 17, 2005) 17
LiButti v. United States,
107 F.3d 110 (2d Cir. 1997) passim
Rules
Fed. R. Evid
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EFTA00593661Set 9
11p6,717w
permit a jury to hear and draw nega- should be drawn. In LiButti v. United States, the
tive inferences based on invocations of the Fifth court, after outlining the relevant ... invoke the Fifth
States Constitution when two conditions are met. Amendment.13 The four LiButti factors are:
First, the proponent of the inference must 1. The nature of the relevant relationships ... employer because of an
logically merits consideration by the trial court.14 employee's silence.
LiButti makes clear that the "overarching con- In the employee or former employee context,
cern
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EFTA01737512Set 10
2016-06-2335p8,890w
Amendment implications that have been
17 represented will be made, and that raises the LiButti issue.
18 And under LiButti, your Honor, really the permeating
19 factor is control ... factors that exist don't justify the deposition under
25 the LiButti analysis. And I would point the Court, as I'm sure
SOUTHERN DISTRICT REPORTERS ... form, which I have not reviewed, and unredacted form, various
4 bases for why LiButti has not been met here by the plaintiff.
5 But the alternative argument the plaintiff
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EFTA01206912Set 9
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adverse inference charge, the Court was guided, in part, on seminal
case of LiButti v. U.S.. 107 F.3d 110 l2nd Cir., 19971, which is
widely accepted in the Federal ... courts. While LiButti has not been
officially adopted by any New York State Court, the decision is well
reasoned, consistent with New York law and provides an excellent
analytical framework ... where an alleged non-party invokes
his or her Fifth Amendment privilege.
In LiButti, the Court held that in determining the admissibility of
non-party's invocation of the Fifth
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EFTA00589467Set 9
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City of New
York, 717 F.2d 700, 708-10 (2d Cir. 1983); see also LiButti v. United States, 107 F.3d 110 (2d
Cir. 1997), neither is this Court required ... Aetna Cas. & Sur. Co., 808 F.2d 271, 272 (3d Cir. 1986), quoted in LiButti, 107 F.3d at 122. See
Evans v. City of Chicago, 513 F.3d ... underlying aspects also logically merits consideration by the trial court.
LiButti, 107 F.3d at 123-24 (Italics in original). In her motion seeking to present Mr. Epstein's
assertions
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EFTA00619558Set 9
2016-06-2029p7,801w
Iantosca v. Benistar Admin. Svcs., Inc., 765 F.Supp.2d 79 (D. Mass. 2011) 6
LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997) 16
Murphy v. Board ofEduc ... Document 228 Filed 06/20/16 Page 19 of 29
drawn against Ms. Maxwell. See LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997). In
fact, none of the LiButti
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EFTA00605112Set 9
2016-06-2029p7,816w
lantosca v. Benistar Admin. Svcs., Inc., 765 F.Supp.2d 79 (D. Mass. 2011) 6
LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997) 16
Murphy v. Board ofEduc ... Document 228 Filed 06/20/16 Page 19 of 29
drawn against Ms. Maxwell. See LiButti v. United States, 107 F.3d 110, 121 (2d Cir. 1997). In
fact, none of the LiButti
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EFTA01191873Set 9
2015-01-2140p13,998w
case or otherwise in an adverse position to the victims. See, e.g.,
LiButti v. United States, 107 F.3d 110, 124 ( .
27
Interestingly, defending the deposition of was Bruce Reinhart
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