Epstein Data Wiki

The June 2016 subpoena to a journalist

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tagstopic, sdny, court-records, subpoena, reporters-privilege, discovery, ghislaine-maxwell

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The instrumentForm AO 88A (Rev. 12/13), “SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION”, issued out of the United States District Court for the Southern District of New York, Civil Action No. 15-cv-07433-RWS1
Who issued itLaura A. Menninger, named on the form as the attorney representing the defendant Ghislaine Maxwell; the form is dated 05/31/2016 and carries an ink mark across the attorney’s signature rule1
Whom it commandedSharon Churcher, a print journalist who swore that she had reported on the events underlying the case since 20072
What it commandedAppearance at a deposition on 06/16/2016 at 9:00 am, at a law office on Lexington Avenue, New York, recorded by stenography; and production of documents by an attachment1
What it demandedSix categories: communications with the plaintiff; communications with her agents, under a list of twelve attorney entries of which three are wholly or partly under bars; communications with a named individual; communications with law enforcement; documents reflecting any payment of money to her; and any contract concerning her. Time frame “from 1999 to present”, and the request “deemed to be continuing”34
ServedIn person at Churcher’s home on Saturday 4 June 2016, twelve days before the return date56
Her answerMotion to quash under Rule 45(d)(3), filed 15 June 2016 with her counsel’s declaration, a 25-sheet memorandum of law relying on the New York Reporters Shield Law, N.Y. Civ. Rights Law § 79-h, and her own declaration swearing that everything sought was “created or received by me in the course of my newsgathering efforts”75869
Maxwell’s answerResponse of 22 June 2016: Churcher “is the only person with much of the information that will prove the truth defense” and “was acting as a friend and advisor to Plaintiff” rather than a journalist10; the brief’s headings set out the asserted compelling need11; and defence counsel said they had offered to extend the return date if Churcher meant to comply12
The argumentHeard before Judge Sweet on 23 June 2016, the transcript’s cover giving the time as “12:19 p.m.”, at an appearance already listed for other discovery business; Eric J. Feder argued the motion for Churcher across eight sheets of transcript, Jeffrey Pagliuca answered for Maxwell across six, Feder replied, and the judge closed with “I will reserve decision”13141516
How it endedSealed Opinion of Judge Robert W. Sweet, filed 20 September 2016: “the motion of Churcher is granted and the Subpoena is quashed”1718
Was she deposed?Not so far as this release shows. A “NOTICE OF DEPOSITION OF SHARON CHURCHER” was filed on 20 June 2016, four days after the return date had passed19; the subpoena was quashed outright on 20 September 201618. Thirteen phrase searches over the whole corpus returned no transcript of a deposition of Churcher and nothing recording one as having been taken; the three phrases that returned anything returned Maxwell’s brief asking the court to order one, that notice, and four copies of the hearing transcript. See the section below for the searches run20

Page limits. The caption of every filing discussed here blacks out the plaintiff’s name, and this page does not identify her, name her from any other document, or supply any attribute the filings withhold. Every personal name published here stands in the clear on at least one sheet of a cited document that was read at the page image, and no name is taken from a document that withholds it. Telephone numbers, fax numbers and email addresses printed on the documents cited here are not reproduced; the street addresses that are reproduced are law-office addresses. The page reports what the court was asked to do and what it did. It does not retail the underlying allegations in the case, and it does not repeat any account given by a survivor.

On 31 May 2016 a lawyer for Ghislaine Maxwell filled out a federal subpoena form commanding a working journalist to sit for a deposition sixteen days later and to bring with her, among other things, every document reflecting any payment of money to the plaintiff who was suing her client. Eleven days after service the journalist moved to quash. Ninety-seven days after that, a United States District Judge held that the New York Reporters Shield Law barred the subpoena in its entirety, that the defendant had shown no “libel exception” to that privilege, and that she “may not conscript Churcher as her ‘investigative arm’”.2122

The instrument, sheet by sheet

The subpoena survives in this release as an exhibit rather than as a court original. EFTA02798260 is seven sheets. Sheet 1 is a cover reading only EXHIBIT A, under the ECF header Case 1:15-cv-07433-LAP Document 217-1 Filed 06/15/16 Page 1 of 7.23 It is Exhibit A to the declaration by which Churcher’s own counsel put the subpoena before the court, so the copy the wiki can read is the copy the recipient filed, not the copy the issuing side lodged.6

Sheet 2 is the subpoena itself: form AO 88A (Rev. 12/13), headed “UNITED STATES DISTRICT COURT / for the / Southern District of New York”, with the caption running against “Ghislaine Maxwell / Defendant” and the Civil Action No. printed as “15-cv-07433-RWS”, while the ECF header stamped along the top of every sheet gives the same case as “1:15-cv-07433-LAP”.1 The Testimony box is ticked. The addressee line reads “Sharon Churcher”. The Place box gives an attorney’s name and a law office at 575 Lexington Ave. Fl. 4, New York, NY 10022; the Date and Time box gives “06/16/2016 9:00 am”; the method line reads “stenography”. The Production box is ticked, and the material demanded is identified in five words: “See Attachement A”, the misspelling standing on the form as printed.1 The date line reads “05/31/2016”, and an ink mark runs across the lower right of the sheet, its final flourish descending across the rule labelled “Attorney’s signature”. The line beneath names the party as “Ghislaine Maxwell” and the issuing attorney as Laura A. Menninger, with a Denver street address, an email address and a telephone number.1

Sheet 3 is the reverse of the form, the PROOF OF SERVICE. On this copy every field of it is blank. No server is named, no date of service is entered, neither the “I served the subpoena” nor the “I returned the subpoena unexecuted” box is marked, and the only figure entered anywhere on the sheet is “0.00” in the total-fees line.24 The document therefore proves the command; it does not prove the service. Service is established instead by two sworn declarations, and by the defendant’s own notice.5619

Sheet 4 reprints the text of Federal Rule of Civil Procedure 45(c), (d), (e) and (g), including the provisions the recipient would go on to use: the court “must quash or modify a subpoena that … requires disclosure of privileged or other protected matter, if no exception or waiver applies; or … subjects a person to undue burden.”25

What the attachment actually demanded

Sheets 5 to 7 are Attachment A. The definitions section defines “You” as “Sharon Churcher, any firm with whom You have been affiliated in the relevant time period, and anyone acting on Your behalf”, and defines “Document” “as broadly as permitted by Rule 34”, running through emails, text messages, videotapes, photographs, notes, diaries, calendars, appointment books, contracts, invoices, transcripts and computer media.26

The instructions require production at the New York law office “no later than June 16, 2016, at 9:00 a.m.”, or electronically to the issuing attorney by the same moment.4 They set the reach of the demand: “Unless otherwise specified, the time frame of this request is from 1999 to present”, and “This Request is deemed to be continuing”, obliging her to keep supplementing it.4

Sheet 7 lists six categories under the heading DOCUMENTS TO BE PRODUCED. Four of the six are directed at a person whose name is blacked out on the sheet. In the court’s own later paraphrase they are:

  1. All Documents containing communications with [redacted].
  2. All communications with any agent for [redacted], including without limitation attorneys [redacted] [redacted], Paul Cassell, David Boise [sic], Sigrid McCawley, Meredith [redacted], Stanely [sic] Pottinger, Ellen Brockman, Stephen Zac, Brittany [redacted], Bob Josefsberg, Katherine Ezell, Amy Ederi.
  3. All Documents containing communications with Jason Richards.
  4. All Documents containing communications with law enforcement agency concerning [redacted].
  5. All Documents reflecting any payment of any money to [redacted].
  6. All Documents reflecting any contract concerning [redacted].1727

The two “[sic]” markers are the court’s own, and the same misspellings stand on the subpoena sheet.317 What the categories amount to, taken together, is a demand that a reporter hand over her correspondence with a source, her correspondence with that source’s lawyers, her correspondence with law enforcement, and any money or contract that had passed between her and the source. Category 3 names a person whom the sheet does not identify as an attorney or as anything else, and this page supplies no role the document withholds.3

Service, and the twelve days

Churcher’s declaration of 15 June 2016 states that she “was served in person at my home” on Saturday 4 June 2016 with a subpoena “commanding me to appear for a deposition on June 16, 2016, and to produce certain documents at the deposition”.5 It also sets out the burden she said the demand imposed: “The documents demanded by the Subpoena include communications going back more than five years. During those years, I have worked for two different news organizations and as a freelance reporter. The email addresses I used at each publication were different, and I no longer have access to my full email account from my prior job.”5

Her counsel’s declaration records what happened between service and the motion. On 9 June 2016 Laura R. Handman telephoned Menninger, asked whether the defendant would postpone a compliance date “which was just twelve days after it had been served”, stated that the documents were protected by the New York Shield Law, and asked what specific information the defendant sought.6 Menninger, the declaration continues, “stated that she could not provide more detail about what specific information she was seeking from Ms. Churcher because of a protective order in this case”, and “also stated that her client would consent to adjourn the date of compliance only if Ms. Churcher was intending to comply with the Subpoena rather than move to quash.”628 Handman declares she could not accept that condition, so “the compliance date for the Subpoena remains June 16, 2016.”28

Maxwell’s side gives the same account of the call and draws the opposite conclusion from it. Her Response argues that the “unreasonable time” objection “is defeated by the admission in her own pleading”, concedes that “the original response date was twelve days after service – two days less than is considered presumptively ‘reasonable’”, and states that counsel “readily agreed that if Churcher intended to respond and comply with the subpoena rather than moving to quash, that the response date would be extended and the deposition would be scheduled at a mutually agreeable time.”12 The brief then gives the reason it says made the timing what it was: “As such, there is no basis for quashing the subpoena based on the ‘unreasonable time’ argument, as Churcher was on notice that she would be given the time needed to obtain the documents requested. In light of the discovery cut-off in this case, however, if a motion to quash was forthcoming, the matter needed to be resolved to permit completion of discovery.”12 The two accounts of the 9 June call do not differ on the facts. They differ on whether an extension conditioned on abandoning the privilege claim is an extension at all.

Four days after the compliance date passed, on 20 June 2016, Maxwell’s side filed a “NOTICE OF SERVICE OF RULE 45 SUBPOENA AND NOTICE OF DEPOSITION OF SHARON CHURCHER”, giving notice that “on June 16, 2016 at 9:00 a.m. … counsel for the defendant will take the deposition of Sharon Churcher” at the same Lexington Avenue address, “before a certified court reporter”, recorded “by stenographic means”.19

The motion, and what she swore to

On 15 June 2016, the day before the return date, a Notice of Motion to Quash Subpoena was filed for Churcher as a non-party, supported by her declaration, her counsel’s declaration and a memorandum of law running to twenty-five sheets. Its cover prints two lawyers’ names over the line “Attorneys for Non-Party Sharon Churcher”, and its signature block, on its last sheet, carries one electronic signature, “By: /s/ Eric J. Feder”, above the same two names and the same line.7569 The notice asked for an order under Rule 45(d)(3) “quashing the subpoena served by defendant Ghislaine Maxwell on non-party Sharon Churcher”, marked ORAL ARGUMENT REQUESTED, and proposed, “pursuant to S.D.N.Y. Local Civil Rule 6.1 and Rule 6(d) of the Federal Rules of Civil Procedure”, that opposing papers be served by 27 June 2016 and reply papers by 1 July 2016, “with argument to be heard on July 7, 2016 (the first Thursday following the completion of briefing) or a later date convenient for the Court.”7 Those dates are the movant’s own proposal, in the movant’s own notice under the local rule. They are not a schedule set by the court, and argument was in fact heard on 23 June, at an appearance already fixed for other business.

Her declaration is where she answers for herself, and it does so on oath. She swears that “[s]ince 2007, I have reported extensively on the criminal investigation into alleged sexual abuse of underage girls by American billionaire Jeffrey Epstein”, and that she has “reported in particular on Epstein’s alleged ties to Prince Andrew (son of Queen Elizabeth II)”.2 She then lists eight articles by date and headline, published between April 2007 and January 2015 in The Mail on Sunday, the National Enquirer and Radar, and exhibits each of them to the declaration.2

Against the charge that she had stopped being a reporter, she swears: “The Articles were all based on my newsgathering efforts. My communications with unnamed sources referenced in the Articles were confidential and undertaken with the expectation that I would not disclose either the identity of the sources or the substance of any communications that were made in confidence.”8 Her communications with the plaintiff, she says, “date back to early 2011, when I interviewed her for the articles published in March 2011”, and continued “through the years up to the present day”; and “[a]t all times that I was communicating with her (or her agents), I was acting in my capacity as a journalist with [the plaintiff] (or her agents) as my source, always with the ultimate goal of gathering information to disseminate to the public as news.”8 Everything the subpoena asked for was, she swears, “(to the extent they ever existed) created or received by me in the course of my newsgathering efforts.”8

Her last two paragraphs give the reason she says the demand mattered beyond this case. If she “were required to give evidence in any civil or criminal matter related to my work, I would cease acting as a professional journalist and instead become a professional witness”; and “to ensure that I maintain my objectivity, do not jeopardize my relationship with confidential sources and avoid becoming an investigative arm for the government or civil litigants, it is essential that I am not compelled to produce documents relating to my newsgathering activities.”29 The phrase the court would use three months later is hers first. It is not original to her either: her memorandum of law traces it to the Second Circuit, which lists among the harms of subpoenaing the press “the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties.”30

The memorandum sets out two grounds. Its table of contents puts the first under the Shield Law, in four headings: information received in confidence is absolutely privileged; everything sought is at a minimum covered by the qualified privilege; the information sought is not “Highly Material and Relevant”; and alternative sources have not been exhausted. The second stands under Rule 45, “FOR FAILURE TO ALLOW A REASONABLE TIME FOR COMPLIANCE AND IMPOSING AN UNDUE BURDEN”.31 First, the Shield Law: an absolute privilege for information received in confidence, and a qualified privilege for unpublished newsgathering material which the party seeking disclosure can overcome only by showing that the information is so “critical or necessary” that its claim or defence “virtually rises or falls” on it, and that it has “exhaust[ed] all other available sources”.32 Second, Rule 45: “Twelve days is simply not sufficient to collect, review and produce over five years’ worth of communications that span multiple places of employment (and therefore multiple email servers), and which indisputably include extensive communication with confidential sources that would need to be redacted.”33 On being made to sit for a deposition at all, it quotes the New York Court of Appeals: where “the entire focus” of a reporter’s testimony would be on privileged topics, “no legitimate purpose would be served by requiring the witness to go through the formality of appearing [to testify] only to refuse to answer questions concerning the information sought.”33 The opinion three months later took the first ground and its two-part structure as its own, heading section IV “The New York Shield Law Applies” with subheadings A and B for the absolute and the qualified privilege, and deciding the materiality and exhaustion points together under section V, “Maxwell Has Not Overcome the Protections of the Shield Law”. It never reached the second ground. Having quashed the subpoena on the Shield Law it wrote no section on reasonable time or undue burden, and neither phrase appears anywhere in it outside its recital of the Rule 45 standard.34

Maxwell’s position

The defendant’s Response to the motion was served on 22 June 2016 and stands in this release as a twenty-one sheet document whose own pagination runs to nineteen pages, the last of them the certificate of service. Its introduction states the theory plainly: “Ms. Maxwell seeks documents and testimony from Sharon Churcher (‘Churcher’) that are critical to the defense of this single count defamation case. Churcher is the only person with much of the information that will prove the truth defense.”10

Its argument against the Shield Law is that the privilege did not attach at all. The brief asserts that “much of the discovery sought is unrelated to any news gathering activities”, that Churcher “was acting as a friend and advisor to Plaintiff in Plaintiff efforts to write and publish a book”, and that “[i]n that role, she helped manufacture some of the stories that have been denied and that are the central issues in this case.”10

Its table of contents carries the same charges as headings, including that Churcher “prompted Plaintiff to fabricate stories regarding Prince Andrew” and “prompted Plaintiff to invent stories regarding Alan Dershowitz”.11 These are allegations made by a party in a brief opposing a privilege claim. They were not accepted by the court, and the court’s disposal of them is set out below. The press release the defamation claim was brought on, quoted in the same brief, itself records that Dershowitz “denies” the allegation against him.10

The brief also narrows its own demand. A footnote on its second page records that “the undersigned has informed Churcher’s counsel that the Subpoena is not intended to cover any information from confidential sources”, so that on the defendant’s case “the absolute privilege found in Civil Rights Law § 79–h(c) is inapplicable” and only the qualified privilege is in issue.35 The three reasons the brief gives for denying the motion follow from that: that much of what is sought was not newsgathering at all; that where Churcher gave information to the plaintiff’s counsel and to law enforcement she “was providing information she had already gathered”, waiving any qualified privilege; and that in any event Maxwell “provides a clear and specific showing that the information is highly material or relevant, critical or necessary to the Ms. Maxwell’s truth defense, and not obtainable from any alternative source.”35

The brief closes by asking the court to “deny the Motion to Quash, and compel deposition and the Production of Documents by Sharron Churcher pursuant to the subpoena”, the misspelling of the surname being the brief’s own.12

The argument of 23 June

Argument on the motion was heard on 23 June 2016, and the release contains the stenographic transcript of it: thirty-five sheets, filed as Document 276 on 13 July 2016. Sheet 1 gives the date, “12:19 p.m.” and “Before: HON. ROBERT W. SWEET, District Judge”, and lists appearances for the plaintiff, for Maxwell, for “Respondent Sharon Churcher” and for “Respondent Jeffrey Epstein”.13

It was not an appearance convened for this motion. The transcript opens “(Case called) / THE COURT: Extending discovery”, and the conference works through the plaintiff’s motion for more time to complete six depositions, her confidentiality designations under the protective order, and subpoenas to Apple and to Microsoft, before the judge turns to it: “OK. So that solves that problem. / Churcher’s motion to quash.”14 The opinion treats the same date the same way, citing it for the state of discovery as a docket event on other motions: “See Dkt. Nos. 205, 207, 230; Minute Entry, June 23, 2016.”21

Churcher’s counsel was heard, and at length. Eric J. Feder appeared “for the movant, Sharon Churcher” and opened: “My client, Sharon Churcher, is a journalist. … And she has been subpoenaed as a third party here to give testimony and to provide documents in this case. We move to quash the subpoena.”36 He argued the motion across eight sheets of transcript, including the point on which the court would decide it: “So as an initial point, it is quite clear that they haven’t exhausted all other sources up to and including the proceedings here today, where they are continuing to seek material from the plaintiff’s email accounts, which your Honor just granted an order that would facilitate that, and also the pending motion to reopen plaintiff’s deposition. So clearly they haven’t exhausted plaintiff as a source.”37 Feder’s argument ends at line 7 of sheet 20; the court said “Thank you”; and Maxwell’s counsel answered across the next six sheets.15

Jeffrey Pagliuca began by reading into the record a voice message he said Churcher had left on 5 February 2015 for Paul Cassell, a lawyer who had entered an appearance for the plaintiff: “I have this as an audio file and if I was allowed to bring my cell phone in, I would play it, but I wrote it down to read it to the Court.”15 The message he read begins “Paul, it’s Sharon. I wanted to discuss and with you on a deep background basis something that’s in my file”, and ends “On a deep background basis, if it’s not going to be a conflict for you, it’s something that I wanted to get your advice on. Take care. Bye-bye.”38 He argued that it had never been produced although “we have asked for this kind of discovery from the plaintiff”, and that “what it reveals is that this is not Ms. Churcher’s first interaction with Mr. Cassell, lawyer for the plaintiff. They are on a first-name basis.”38

His case on the Shield Law was that Churcher had not been acting as a journalist: “Ms. Churcher’s role in this entire ordeal was not simply a journalist. Ms. Churcher is a self-described friend. She is a self-described adviser. She’s a self-described confidante. She is a self-described advocate.”39 He made the same limiting concession orally that the brief had made in a footnote: “To be clear, we don’t want that information from Ms. Churcher. So whatever information Ms. Churcher has that was indeed obtained in her job in the course of gathering or obtaining news for publication, we haven’t subpoenaed that information.”39 The remedy he asked for was not a blanket denial of the privilege but a deposition at which “these issues need to be resolved on a question-and-answer basis by Ms. Churcher, because her role in connection with this case far exceeded any role as a journalist”.40 What he sought, he said, were her exchanges with the plaintiff, with the plaintiff’s lawyers and with law enforcement, which on his case “are not news-gathering activities. These are wholly outside of the process of gathering news.”41

He also answered the exhaustion point directly, and it is the point the court decided against him: “I believe we have exhausted all avenues available to us to obtain this information. There is really no place else to go. … I think it is not well founded, your Honor, that there is some notion that we have not done everything that we can to get this information from the plaintiff, Microsoft, other places before turning to a subpoena to Ms. Churcher.”41 He closed on a sentence carried over to the next sheet: “should deny the motion to quash, we should be allowed to proceed forward with the deposition of Ms. Churcher. If there are particularized objections to the questions because counsel believe that those invade some privilege, they should be raised at that time, and we go forward on a question-by-question basis.”42

Feder asked “May I be heard briefly?”, was told “Mm-hmm”, and replied.42 He answered the voicemail first: “the voicemail that my colleague read is totally consistent with news gathering. She mentions that it’s on deep background, and in trying to cultivate the source she describes herself as almost a friend. Again, I don’t think that type of less formal communication is indicative of a transformation from a journalist into something else.”42

What he told the court he could not do was answer the sealed material. In the same reply he said: “But more problematically, we haven’t heard that voicemail. We haven’t seen any of the emails they are talking about because they are redacted; the exhibits containing them were filed under seal. So we don’t know exactly which pieces of information they are trying to seek and which pieces of information they are claiming are not subject to the privilege.”42

He then answered the charge that his client had stopped being a reporter. “I think we can all agree that Ms. Churcher is in fact a journalist,” he said, and she had gone on publishing stories about these matters “from 2007 and certainly 2011 onward”, so that “clearly the Shield Law is floating around here at a minimum somewhere”.4216 What followed from that, on his case, was a burden the defendant had not discharged: the statute obliged her to “make a clear and specific showing for each piece of information”, and obliged the court to “order disclosure only of such portions of the news sought as to which the above-described showing has been made”.16 His answer to the disposal Maxwell’s counsel had asked for was that it could not be made on that record: “So we can’t go forward and just deny the motion to quash entirely and just go to a deposition and start answering questions when the Shield Law at a minimum applies to, we would submit, all of it but at a minimum a substantial portion of the information. We need to see what they’re specifically talking about here.”16 The judge closed the matter: “Thank you very much. I will reserve decision.”16

Twelve days later he put the sealed-material point to the judge in writing. A letter of 5 July 2016 states that “[a]s I stated at the argument on the Motion on June 23, at that point, counsel for Churcher had access only to the publicly-filed redacted version of Defendant’s Response to the Motion, which was filed the evening of June 22, 2016. … Accordingly, we were not able to respond to the substance of the Defendant’s arguments at the hearing or in a brief.”43 The letter adds that counsel “had previously offered (via email to Defendants’s counsel) to sign an acknowledgment of the Protective Order entered in this case, and thereby gain access to confidential documents as counsel to a potential witness in the case”, that “Defendant’s counsel did not respond to our offer”, and that the full unredacted Response was provided only “on the evening of June 24, 2016”, the day after the hearing.43 The letter makes two requests, not one. It asks leave of the court to “File a post-hearing Reply brief in further support of the motion”, adding “We have consulted with counsel for the parties in the case, and all consent to this filing”, and to “File portions of the Reply under seal pursuant to the Protective Order entered in this case”, which the letter’s second sheet takes up under its own heading, “Leave to File Reply Brief Under Seal”. That second sheet also records: “We are filing a redacted version of the Reply on ECF simultaneously with this Letter Motion.”43 Both documents are in this release, and they describe the same hearing differently: the transcript shows counsel heard and answering at length, the letter says what he was not in a position to answer.

What became of the letter motion is in the release too. The same letter stands there a second time, re-imaged under a second ECF header as Document 275 and carrying at the foot of its first sheet a manuscript endorsement: the words “So ordered”, a signature reading “Sweet”, the letters “U.S.D.J.”, and the date “7-11-16”. The endorsement is dated the 11th; the clerk’s ELECTRONICALLY FILED stamp on the same sheet gives the date filed as 7/13/16.44 The endorsement stands on the letter motion, which asked leave to file the Reply and leave to file parts of it under seal. It is not a ruling on the motion to quash, which the court decided three months later. The clerk’s side of the same event survives as well: a “LIST OF DECIDED MOTIONS” filed in the case on 14 April 2020 gives that letter motion as Docket 262, filed 5 July 2016 and resolved by Docket 275 on 11 July 2016, and gives a “Churcher Reply Brief in Further Support of Motion to Quash” as Docket 263, filed the same day. The list records docket numbers and dates and not what was decided on either row; for Docket 262 the endorsed copy does.45

What the court decided

Judge Robert W. Sweet’s Sealed Opinion is twenty-one ECF sheets, its own pagination running one behind (the sheet carrying the ruling is ECF page 2 and the opinion’s own page 1). It opens with the holding:

Non-party Sharon Churcher (“Churcher”), a professional journalist, has moved under Federal Rule of Civil Procedure 45 to quash the subpoena served upon her by Defendant Ghislaine Maxwell (“Maxwell” or the “Defendant”) to testify at a deposition in this civil action and to produce documents (the “Subpoena”) relying upon the New York Reporters Shield Law, N.Y. Civ. Rights Law § 79-h (“Section 79-h”). Upon the conclusions set forth below, the motion of Churcher is granted, and the Subpoena is quashed.17

The court found the Shield Law applicable because the claim was a state-law claim in federal court on diversity, so New York law supplied the privilege rule, and because Churcher was a New York-based journalist.46 It held that information received under a promise of confidentiality was absolutely privileged, and noted that “many of the Articles rely on confidential sources, including law enforcement sources”.47 On the qualified privilege covering non-confidential newsgathering material, it set out the interests protected: “the privacy of editorial processes and the press’s independence in its selection of material for publication”, and the avoidance of “‘fishing expeditions’ into [unpublished] materials in the hope that some relevant information may turn up”.4849

Against Maxwell’s argument that Churcher had stopped acting as a reporter, the court applied the Second Circuit’s test of the “primary relationship” between reporter and source and found that “the ‘primary relationship’ between Churcher and Plaintiff was that of a professional reporter gathering information from a source for the Articles that were, in fact, subsequently published under Churcher’s byline over the next several years.”50 It added that “frequent, often informal communication with sources, even if not for the immediate purpose of gathering information for a specific article, is an integral part of the overall newsgathering process.”51 Its conclusion on that branch: “Because Churcher has established that she was, and is, a journalist using Plaintiff as a source, the Subpoena is quashed as a consequence of the protections of the Shield Law.”52

The passage immediately preceding that sentence, which appears to be the court’s treatment of the emails the defendant had submitted to show that Churcher was not acting as a journalist, is withheld: thirteen consecutive lines at the top of that sheet are covered by solid bars. The extracted text of the sheet closes the gap without marking it, printing the two surviving paragraphs as though nothing stood above them.52

On whether the qualified privilege had been overcome, the court rejected the credibility argument as circular: in almost any civil case a party’s credibility will be a central issue, “all the more so in a defamation case”, and that “makes Churcher’s materials no more critical than any other evidence in this case. Maxwell has not cited any authority for a wholesale ‘libel exception’ or a ‘plaintiff’s credibility exception’ to the Shield Law.”21 It then held that the last-resort requirement was not met, listing the avenues still open to the defendant: a granted motion to reopen the plaintiff’s deposition, further production still awaited from the plaintiff, a motion to quash by Epstein that had been denied, and a motion to quash by Paul Cassell denied in part.21 Maxwell had told the court the opposite in a footnote to her Response: the same information “had been requested in discovery to Plaintiff, but no documents have been produced”, she “has also subpoenaed the information from Plaintiff’s attorneys, each of whom has moved to quash”, and “[t]here can be no question that Ms. Maxwell has exhausted every possible source for obtaining this information.”12 The court did not accept it. As to law enforcement, “all that Maxwell has done to ‘exhaust’ law enforcement sources, apparently, is to file a single FOIA request. … There thus remain numerous alternative sources for the information Maxwell seeks. She may not conscript Churcher as her ‘investigative arm’ in the meantime.”2122

The conclusion repeats the holding, directs the parties to propose a redacted version of the opinion within two weeks, and carries a manuscript signature above the typed name “ROBERT W. SWEET / U.S.D.J.” The date line reads “New York, NY / September ___ , 2016” with the day entered by hand in a single stroke that is not legible in this copy; the ECF header on every sheet reads “Filed 09/20/16”.18 The release holds the opinion twice: once as Document 440-1, filed 20 September 2016, and once as Document 503, filed 21 November 2016, the second carrying the first’s ECF header beneath its own and a clerk’s stamp with the date filled in by hand. The redactions are the same on both copies at the sheets compared.1853

Whether she was deposed

She was not, so far as this release shows, and the point matters because the subpoena is often the only document in the file and a command is not a compliance.

The subpoena’s return date was 16 June 2016; the motion to quash was filed on 15 June 2016 and the court quashed the subpoena outright on 20 September 2016.71718 The court’s own account of the state of discovery, on its own pages 18 and 19, is written in the present and future tense throughout: the avenues it lists are ones still open, not ones already taken.21

Thirteen phrase searches were run against the full-text index of the whole corpus, which covers the EFTA, HOUSE_OVERSIGHT and DOJ-OGR productions together, looking for a transcript of, or a reference to the taking of, any deposition of Churcher. The variants tried were: CHURCHER DEPOSITION, Churcher Dep, Churcher Depo, Deposition of Churcher, deposition of Sharon Churcher, deposition of Ms. Churcher, Churcher Tr, Churcher Transcript, SHARON CHURCHER, having, SHARON CHURCHER, called, Churcher, having been, testimony of Sharon Churcher and Churcher testified. Ten returned nothing. The three that returned anything returned no deposition. Deposition of Churcher returned a single document, Maxwell’s own Response, asking the court to order one; deposition of Sharon Churcher returned a single document, the notice of deposition described above; and deposition of Ms. Churcher returned four documents, all four of them copies of the 23 June hearing transcript, where the phrase is defence counsel asking the court to let the deposition go forward.20121942

What the record does show is that the defence had already put questions about Churcher to a witness in the same action four weeks before the subpoena was issued. A deposition transcript in this case bears the date 05/03/2016 on its cover sheet, with the deponent’s name under a bar, and Churcher’s name appears on seventeen of its eighty-nine sheets in the extracted text, in passages of examination by Menninger about articles, correspondence and documents.54 The court reached its last-resort holding from the docket (the granted motion to reopen the plaintiff’s deposition, the production still awaited, the other motions to quash) and not from any deposition transcript.21 That the defence had already put questions about Churcher to another witness sits with that holding rather than against it: the court’s point was that Maxwell had not yet exhausted the alternatives.

How the docket recorded her

The court’s filings call Churcher a non-party throughout, from the motion papers to the opinion’s first sentence: “Non-party Sharon Churcher (‘Churcher’), a professional journalist, has moved under Federal Rule of Civil Procedure 45 to quash”.17 What she acquires is a designation on the Rule 45 motion itself, not party status in the action: the appearances block of the Sealed Opinion heads its third block “Counsel for Respondent Sharon Churcher”, and the appearances page of the transcript of 23 June gives the same designation in its own words, “Attorneys for Respondent Sharon Churcher”.5513 A commercial docket abstract in this release records the same designation from the outside. EFTA01387851 is a single sheet, printed by CourtLink and marked ”*** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY *** Copyright © 2018 CourtLink Corporation”. Its party roster for docket case number 1:15cv7433 lists “Respondent: Sharon Churcher; Jeffrey Epstein”, alongside “Applicant: John Stanley Pottinger”, the interested parties NYP Holdings, Inc. and Daily News, L.P., and the intervenors Michael Cernovich d/b/a Cernovich Media, Miami Herald Media Company, Julie Brown and Alan M. Dershowitz.56 It is a vendor’s abstract rather than the court’s own docket sheet, it is a fragment (its own printed page number is 3 while it stands alone in this release), and the block above the roster belongs to a different case entirely.56

Footnotes

  1. Same document, its own sheet 2 of 7, the subpoena itself. Form line: “AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action”. Heading “UNITED STATES DISTRICT COURT / for the / Southern District of New York”; the caption’s plaintiff block is covered by a solid bar and is not identified here; “Ghislaine Maxwell” stands above “Defendant”; “Civil Action No. 15-cv-07433-RWS”, against the ECF header’s “Case 1:15-cv-07433-LAP”. Title “SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION”; “To: Sharon Churcher” above the rule marked “(Name of person to whom this subpoena is directed)”. A tick stands in the box beside “Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a deposition to be taken in this civil action”. The “Place:” box gives “Laura Menninger”, a firm name of which the first word “Haddon” prints and the rest is covered by two solid bars, and the address “575 Lexington Ave. Fl. 4 / New York, NY 10022”; the “Date and Time:” box gives “06/16/2016 9:00 am”; the method line reads “The deposition will be recorded by this method: stenography”. A tick stands in the box beside “Production”, and the material demanded is given as “See Attachement A”, the spelling being the form’s own. “Date: 05/31/2016”. What is recorded here is what the sheet shows, not a conclusion about who wrote it: an ink mark begins immediately to the right of the printed word “OR”, runs rightward across the sheet, and ends in a large flourish whose descender crosses the rule labelled “Attorney’s signature” and continues below it. The strokes vary in weight along their length and sit off the baseline grid of the printed form. No part of the mark reaches the rule labelled “Signature of Clerk or Deputy Clerk”, which stands empty. Measured on the 600 dpi render at a darkness threshold of 220 of 255: the clerk’s rule ends at x = 2812 and the leftmost ink pixel stands at x = 3000, 188 px — 0.31 in on the sheet — to its right, with nothing between the two but the printed word “OR”, whose R carries a descending leg and which spans x = 2863–2980. Columns 2813 to 2862 are empty at that threshold. The rendered image is an upscaled scan, so those pixel positions are positions on the render and not a measurement of scanner resolution. The line beneath reads “The name, address, e-mail address, and telephone number of the attorney representing (name of party) Ghislaine Maxwell … who issues or requests this subpoena, are: Laura A. Menninger, 150 E. 10th Ave., Denver, CO 80203”, followed by an email address and a telephone number which are not reproduced here. Read from the page image at 300 and 600 dpi. https://epstein-data.com/EFTA02798260 p. 2. ↩ ↩2 ↩3 ↩4 ↩5 ↩6

  2. Same declaration, its own sheet 2 of 5, paragraphs 5 and 7. Paragraph 5: “Since 2007, I have reported extensively on the criminal investigation into alleged sexual abuse of underage girls by American billionaire Jeffrey Epstein. I have reported in particular on Epstein’s alleged ties to Prince Andrew (son of Queen Elizabeth II).” Paragraph 7 opens the list of exhibited articles, “A sampling of those articles (the ‘Articles’) is attached hereto as exhibits to this Declaration”, and runs from sub-paragraph (a), an article of 29 April 2007 in The Mail on Sunday, to sub-paragraph (h), an article of 21 January 2015 published by Radar; the eight are dated 29 April 2007, 2 March 2011, 5 March 2011, 7 March 2011, 3 January 2015, 6 January 2015, 13 January 2015 and 21 January 2015, and the headlines are given in full across sheets 2 to 4. Sheet 2 also completes paragraph 4’s list of her earlier employers. Sub-paragraphs (a) and (b) were read at the image on this sheet, (c) to (g) at the image on sheet 3, and (h) at the image on sheet 4. Read from the page image. https://epstein-data.com/EFTA02798255 p. 2. ↩ ↩2 ↩3

  3. Same document, its own sheet 7 of 7, headed “DOCUMENTS TO BE PRODUCED”, six numbered categories. Solid bars cover the person named in categories 1, 2, 4, 5 and 6, and cover three of the names in the attorney list in category 2; that person is not identified here and no role is supplied for any name on the sheet. The names readable in category 2 are “Paul Cassell, David Boise, Sigrid McCawley, Meredith [bar], Stanely Pottinger, Ellen Brockman, Stephen Zach, Brittany [bar], Bob Josefsberg, Katherine Ezell, Amy Ederi”; category 3 reads “All Documents containing communications with Jason Richards.” The spellings “David Boise” and “Stanely” are the sheet’s own; this sheet carries no “[sic]” markers, which appear only in the court’s later quotation of it. Read from the page image at 300 and 600 dpi. https://epstein-data.com/EFTA02798260 p. 7. ↩ ↩2 ↩3

  4. Same document, its own sheet 6 of 7, headed “INSTRUCTIONS”, numbered 1 to 10. Instruction 1 requires production to the issuing attorney at the Lexington Avenue office “no later than June 16, 2016, at 9:00 a.m.”, or, “[a]lternatively, you may provide the records electronically by that date and time” to an email address which is not reproduced here. Instruction 8: “Defendant does not seek and does not require the production of multiple copies of identical Documents.” Instruction 9: “Unless otherwise specified, the time frame of this request is from 1999 to present.” Instruction 10: “This Request is deemed to be continuing. If, after producing these Documents, you obtain or become aware of any further information, Documents, things, or information responsive to this Request, you are required to so state by supplementing your responses and producing such additional Documents to Defendant.” Read from the page image. https://epstein-data.com/EFTA02798260 p. 6. ↩ ↩2 ↩3

  5. “DECLARATION OF SHARON CHURCHER”, Document 216, ECF header “Filed 06/15/16”, 5 sheets, its own sheet 1 of 5: “I am a resident of Westchester County, New York, and have lived continuously in New York, working as a journalist, since 1983.”; “On Saturday June 4, 2016, I was served in person at my home with a subpoena from Defendant Ghislaine Maxwell commanding me to appear for a deposition on June 16, 2016, and to produce certain documents at the deposition (the ‘Subpoena’). I make this declaration in support of my motion to quash the Subpoena.”; “The documents demanded by the Subpoena include communications going back more than five years. During those years, I have worked for two different news organizations and as a freelance reporter. The email addresses I used at each publication were different, and I no longer have access to my full email account from my prior job.”; “Since November 2014, I have been employed by American Media, Inc. (‘AMI’) publisher of the National Enquirer (the ‘Enquirer’) and RadarOnline.com (‘Radar’). I previously worked as the New York-based Chief American Correspondent of the British newspaper The Mail on Sunday from 1992 through October 2013.” The caption’s plaintiff block is covered by a solid bar. Read from the page image. https://epstein-data.com/EFTA02798255 p. 1. ↩ ↩2 ↩3 ↩4 ↩5 ↩6

  6. “DECLARATION OF LAURA R. HANDMAN”, Document 217, ECF header “Filed 06/15/16”, 2 sheets, its own sheet 1 of 2, paragraphs 1 to 3. Paragraph 1: “I am a member of the law firm of [two solid bars] Tremaine LLP and a member of the Bar of the State of New York and of this Court. I submit this declaration in support of the motion (the ‘Motion’) of my client, non-party Sharon Churcher, to quash the subpoena served on her on June 4, 2016 by the defendant in this case, Ghislaine Maxwell. A true and correct copy of that subpoena (the ‘Subpoena’) is attached hereto as Exhibit A.” Paragraph 2: “On June 9, 2016, I spoke by telephone to counsel for Ms. Maxwell, Laura Menninger. I asked Ms. Menninger if the defendant would be willing to postpone the date of compliance for the Subpoena (June 16, 2016), which was just twelve days after it had been served. I also stated that the documents called for by the Subpoena were protected from compelled disclosure by the New York Shield Law, N.Y. Civ. R. L. § 79-h. In light of that, I asked what specific information the defendant was seeking to elicit from Ms. Churcher.” Paragraph 3 begins: “Ms. Menninger stated that she could not provide more detail about what specific information she was seeking from Ms. Churcher because of a protective order in this case.” The firm name is withheld by the production and is not supplied here. Read from the page image. https://epstein-data.com/EFTA02798267 p. 1. ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7

  7. “NOTICE OF MOTION TO QUASH SUBPOENA”, Document 215, ECF header “Filed 06/15/16”, 2 sheets, its own sheet 1 of 2, marked “ECF CASE” and “ORAL ARGUMENT REQUESTED”: “PLEASE TAKE NOTICE that upon the accompanying declarations of Sharon Churcher and Laura R. Handman, sworn to June 15, 2016, and the exhibits annexed thereto, the accompanying Memorandum of Law, and all prior pleadings and proceedings heretofore had herein, the undersigned will move this Court, before the Honorable Robert W. Sweet, United States District Judge, Southern District of New York, for an order pursuant to Rule 45(d)(3) of the Federal Rules of Civil Procedure quashing the subpoena served by defendant Ghislaine Maxwell on non-party Sharon Churcher”; and “PLEASE TAKE FURTHER NOTICE that, pursuant to S.D.N.Y. Local Civil Rule 6.1 and Rule 6(d) of the Federal Rules of Civil Procedure, opposing papers, if any, must be served upon the undersigned on or before June 27, 2016; and reply papers, if any, must be served on or before July 1, 2016; with argument to be heard on July 7, 2016 (the first Thursday following the completion of briefing) or a later date convenient for the Court.” Read from the page image. https://epstein-data.com/EFTA02798201 p. 1. ↩ ↩2 ↩3 ↩4

  8. Same declaration, its own sheet 4 of 5, paragraphs 8 to 11. Paragraph 8: “The Articles were all based on my newsgathering efforts. My communications with unnamed sources referenced in the Articles were confidential and undertaken with the expectation that I would not disclose either the identity of the sources or the substance of any communications that were made in confidence.” Paragraph 10: “My communications with [the plaintiff] date back to early 2011, when I interviewed her for the articles published in March 2011. See Exhibits 2-3. My communications with her (or her attorneys or other agents) continued through the years up to the present day. At all times that I was communicating with her (or her agents), I was acting in my capacity as a journalist with [the plaintiff] (or her agents) as my source, always with the ultimate goal of gathering information to disseminate to the public as news.” Paragraph 11: “All of the materials listed in the ‘Documents to Be Produced’ section of the Subpoena were (to the extent they ever existed) created or received by me in the course of my newsgathering efforts.” Each bracketed “[the plaintiff]” above stands where the production has placed a solid bar, and she is not identified here. Read from the page image. https://epstein-data.com/EFTA02798255 p. 4. ↩ ↩2 ↩3 ↩4

  9. “MEMORANDUM OF LAW IN SUPPORT OF NON-PARTY SHARON CHURCHER’S MOTION TO QUASH SUBPOENA”, Document 218, ECF header “Filed 06/15/16”, 25 sheets, its own sheet 1 of 25, the cover, which prints the names “Laura R. Handman” and “Eric J. Feder” beneath a partly withheld firm name and above the line “Attorneys for Non-Party Sharon Churcher”. No manuscript or electronic signature stands on the cover. The memorandum’s signature block is on its own sheet 25 of 25, under “CONCLUSION” and “Dated: New York, New York / June 15, 2016”: “Respectfully submitted,” then the same partly withheld firm name, then “By: /s/ Eric J. Feder” on a signature rule, then the same two printed names and the same line. The firm name is withheld by the production and is not supplied here; the telephone, facsimile and email lines on both sheets are not reproduced. The sheet count is the total sheets of this document in the release. Sheets 1 and 25 read at the page image. https://epstein-data.com/EFTA02798269 pp. 1, 25. ↩ ↩2

  10. “RESPONSE TO NON-PARTY SHARON CHURCHER’S MOTION TO QUASH SUBPOENA”, served 22 June 2016 (certificate of service) and held in this release under the ECF header “Case 1:15-cv-07433-LAP Document 1325-1 Filed 01/04/24”, 21 sheets, its own sheet 3 of 21 (the brief’s own page 1): “Ms. Maxwell seeks documents and testimony from Sharon Churcher (‘Churcher’) that are critical to the defense of this single count defamation case. Churcher is the only person with much of the information that will prove the truth defense.”; the block quotation of the press release, in which the plaintiff’s name is covered by solid bars in two places and which reads in part “now it is alleged by [bar] that Alan Dershowitz is involved in having sexual relations with her, which he denies”; “Churcher is the sole source of information regarding the original story told by Plaintiff, and was the author of the first articles publishing Plaintiff’s claims. She was actively and personally involved in changing those stories over time and in the creation and addition of new salacious details about public figures, including the fabrication of Alan Dershowitz’s alleged sexual relations with Plaintiff.”; “Rather, Churcher was acting as a friend and advisor to Plaintiff in Plaintiff efforts to write and publish a book, sensationalizing her story in a manner that would best boost the publicity, publication and sales of that work of fiction. In that role, she helped manufacture some of the stories that have been denied and that are the central issues in this case.” Two passages on this sheet carry a grey highlight in the copy as filed. Read from the page image. https://epstein-data.com/EFTA02792820 p. 3. ↩ ↩2 ↩3 ↩4

  11. Same brief, its own sheet 2 of 21, “TABLE OF CONTENTS”, carrying the headings “CHURCHER IS A MATERIAL FACT WITNESS AND WAS NOT ACTING AS A JOURNALIST”; “Churcher was acting as a friend and advisor to help Plaintiff publish her book, not as journalist”; “Churcher prompted Plaintiff to fabricate stories regarding Prince Andrew”; “Churcher prompted Plaintiff to invent stories regarding Alan Dershowitz”; “Churcher’s communications with Plaintiff’s Counsel and Law Enforcement are not newsgathering activities”; “THE ABSOLUTE PRIVILEGE OF THE SHIELD LAW IS NOT APPLICABLE BECAUSE THERE WAS NO EXPECTATION OF CONFIDENTIALITY”; “THERE IS A COMPELLING NEED FOR CHURCHER’S DOCUMENTS AND TESTIMONY”; and “MS. MAXWELL’S COUNSEL AGREED TO EXTEND THE RETURN DATE FOR COMPLIANCE WITH THE SUBPOENA”. Read from the page image. https://epstein-data.com/EFTA02792820 p. 2. ↩ ↩2

  12. Same brief, its own sheets 19 and 20 of 21 (the brief’s own pages 17 and 18), section IV and the prayer: “Churcher’s final argument for a Protective Order – that there was not a reasonable time to respond – is defeated by the admission in her own pleading. It is true that the original response date was twelve days after service – two days less than is considered presumptively ‘reasonable.’ Ms. Maxwell’s counsel readily agreed that if Churcher intended to respond and comply with the subpoena rather than moving to quash, that the response date would be extended and the deposition would be scheduled at a mutually agreeable time.” Sheet 20 continues the same passage: “As such, there is no basis for quashing the subpoena based on the ‘unreasonable time’ argument, as Churcher was on notice that she would be given the time needed to obtain the documents requested. In light of the discovery cut-off in this case, however, if a motion to quash was forthcoming, the matter needed to be resolved to permit completion of discovery.”; then “WHEREFORE, for the forgoing reasons, Ms. Maxwell requests that the Court deny the Motion to Quash, and compel deposition and the Production of Documents by Sharron Churcher pursuant to the subpoena, as modified by footnote 6 herein.” The three dashes in the first quotation are the brief’s own and are reproduced as printed. The spelling “Sharron”, and “forgoing” for “foregoing”, are the brief’s own. Sheet 20 carries the signature block; its telephone, facsimile and email lines are not reproduced, and the firm name printed there is withheld in part by the production and is not supplied here. Sheet 19 also carries footnote 9 to the brief, quoted in the text: “This information had been requested in discovery to Plaintiff, but no documents have been produced. Ms. Maxwell has also subpoenaed the information from Plaintiff’s attorneys, each of whom has moved to quash. There can be no question that Ms. Maxwell has exhausted every possible source for obtaining this information.” The passage on the same sheet stating that only Churcher can testify to certain matters cites the accompanying declaration’s sealed exhibits and is not relied on here for any fact about the plaintiff. Sheet 20 is dated “June 22, 2016” above the signature block. Read from the page images. https://epstein-data.com/EFTA02792820 pp. 19–20. ↩ ↩2 ↩3 ↩4 ↩5 ↩6

  13. Transcript of proceedings, [plaintiff] v. Ghislaine Maxwell, 15 Civ. 7433(RWS) (S.D.N.Y.), Document 276, ECF header “Filed 07/13/16”, 35 sheets, its own sheet 1 of 35, the caption and appearances page: “New York, N.Y. / 15 Civ. 7433(RWS)”, “June 23, 2016 / 12:19 p.m.”, “Before: / HON. ROBERT W. SWEET, / District Judge”, and under “APPEARANCES”: “BOIES, SCHILLER & FLEXNER LLP / Attorneys for Plaintiff / BY: SIGRID S. McCAWLEY / MEREDITH L. [bar]”; “HADDON [bar] AND [bar], P.C. / Attorneys for Defendant / BY: JEFFREY PAGLIUCA / LAURA A. MENNINGER”; “[bar] [bar] TREMAINE LLP / Attorneys for Respondent Sharon Churcher / BY: ERIC J. FEDER”; and “LAW OFFICES OF GREGORY L. POE PLLC / Attorneys for Respondent Jeffrey Epstein / BY: GREGORY L. POE / RACHEL S. LI WAI SUEN”. The plaintiff’s name in the caption is covered by a solid bar. Two firm names are withheld in part by the production and neither is supplied here. The release stamps a separate number on each sheet of this run, from EFTA02799311 on sheet 1; the document is cited here by its first number and by sheet. The transcript stands in this release four times over: a full-text search of the whole corpus for the reporter’s job code printed at the head of every sheet, “G6ndgium”, returns 35 pages in each of exactly four documents, of which this is one. Nothing on this page is taken from any copy but this one. Read from the page image. https://epstein-data.com/EFTA02799311 p. 1. ↩ ↩2 ↩3

  14. Same transcript, its own sheets 2 and 12 of 35. Sheet 2 opens the appearance: “(Case called) / THE COURT: Extending discovery.”, counsel for the plaintiff then stating “we had filed a motion for additional time to complete six depositions” and “Our discovery cutoff right now is set for June 30th”. Sheets 3 to 12 carry, in order, argument on that extension, the plaintiff’s confidentiality designations under the protective order, and subpoenas to Apple and to Microsoft. Sheet 12 closes that business and turns to this motion: “OK. So that solves that problem. / Churcher’s motion to quash.” Sheets 2 and 12 were read at the page image; the intervening sheets were read from the extracted text. https://epstein-data.com/EFTA02799311 pp. 2, 12. ↩ ↩2

  15. Same transcript, its own sheet 20 of 35, which carries the end of the movant’s argument and the opening of the defendant’s. The movant’s argument closes at line 7, in a sentence running from line 6: “because the Shield Law applies, a fortiori, as a journalist, she should not be put to that burden.”; line 8 reads “THE COURT: Thank you.”; and at line 9 the defendant’s counsel begins: “MR. PAGLIUCA: Your Honor, I start with — I would like to read to the Court an example of Ms. Churcher’s involvement in this case. I have this as an audio file and if I was allowed to bring my cell phone in, I would play it, but I wrote it down to read it to the Court.” Lines 14 to 24 carry an exchange with counsel for the plaintiff about whether the recording was a confidential document, which counsel for the defendant answered “This is not a document that has been produced by the plaintiffs, and it has never been labeled as confidential in connection with this case.”; line 25 begins “MR. PAGLIUCA: So, this is a voice message that”. The defendant’s argument runs from this sheet’s line 9 to sheet 25 line 8, where it closes “Thank you.” Read from the page image. https://epstein-data.com/EFTA02799311 p. 20. ↩ ↩2 ↩3

  16. Same transcript, its own sheet 26 of 35, the end of the reply and the court’s disposition. Lines 2 to 4: “from 2007 and certainly 2011 onward, publishing stories about these matters. So, clearly the Shield Law is floating around here at a minimum somewhere.” Lines 5 to 10: “And they have to make a clear and specific showing for each piece of information that they claim either the Shield Law doesn’t apply because she wasn’t acting in her capacity as a journalist or that the Shield Law is overcome because it’s critical or necessary and they’ve exhausted alternative sources.” Lines 10 to 14: “And the Shield Law itself provides that the Court shall order disclosure only of such portions of the news sought as to which the above-described showing has been made and shall support such order with clear and specific findings made after a hearing.” Lines 15 to 20: “So we can’t go forward and just deny the motion to quash entirely and just go to a deposition and start answering questions when the Shield Law at a minimum applies to, we would submit, all of it but at a minimum a substantial portion of the information. We need to see what they’re specifically talking about here.” Lines 21 and 22: “THE COURT: Thank you very much. I will reserve decision.”; and at line 23 “The motion to quash the Epstein —”, the transcript turning to the other respondent’s motion. Read from the page image. https://epstein-data.com/EFTA02799311 p. 26. ↩ ↩2 ↩3 ↩4 ↩5

  17. Same opinion, its own sheet 2 of 21, footed with the opinion’s own page 1, headed “Sweet, D.J.”: the holding paragraph quoted in the text; “I. Prior Proceedings / On June 4, 2016, Churcher was served with the Subpoena commanding her to appear at a deposition on June 16, 2016. The Subpoena also commands Churcher to bring with her to the deposition several broad categories of documents:”; and the first two of the six categories, in which the court’s own quotation carries the markers “David Boise [sic]” and “Stanely [sic] Pottinger” and prints the surname “Zac” where the subpoena sheet prints “Zach”. Read from the page image. https://epstein-data.com/EFTA02800991 p. 2. ↩ ↩2 ↩3 ↩4 ↩5 ↩6

  18. Same opinion, its own sheet 21 of 21 (its own page 20), section “VI. Conclusion”: “Upon the conclusions set forth above, the motion of Churcher is granted and the Subpoena is quashed. The parties are directed to jointly file a proposed redacted version of this Opinion consistent with the Protective Order or notify the Court that none are necessary within two weeks of the date of receipt of this Opinion. It is so ordered.” Beneath, at the left, “New York, NY / September ___ , 2016”, the day entered in ink as a single stroke that is not legible at 300 dpi; at the right, a manuscript signature above the typed “ROBERT W. SWEET / U.S.D.J.” The ECF header reads “Filed 09/20/16”. Read from the page image. https://epstein-data.com/EFTA02800991 p. 21. ↩ ↩2 ↩3 ↩4 ↩5

  19. “NOTICE OF SERVICE OF RULE 45 SUBPOENA AND NOTICE OF DEPOSITION OF SHARON CHURCHER”, filed as an exhibit under the ECF header “Case 1:15-cv-07433-LAP Document 229-14 Filed 06/20/16 Page 2 of 10”: “PLEASE TAKE NOTICE that on June 16, 2016 at 9:00 a.m., pursuant to Rule 30 of the Federal Rules of Civil Procedure, counsel for the defendant will take the deposition of Sharon Churcher at 575 Lexington Ave., Fl. 4, New York, NY 10022, before a certified court reporter or other officer duly authorized to administer oaths. The deposition will be recorded by stenographic means. Pursuant to Rule 45, Defendant Ghislaine Maxwell also hereby provides Notice of Service of Subpoena upon Sharon Churcher. A copy of the Subpoena is attached to this Notice.” The exhibit cover at sheet 1 of the same run is headed “EXHIBIT N” and its ECF header reads “Document 229-14”, the same as sheet 2; the extracted text of sheet 1 renders that number as “229-19”, which the image does not support. Both sheets were read at the image. The caption’s plaintiff block is covered by a solid bar. Read from the page image. https://epstein-data.com/EFTA02798509 p. 2. ↩ ↩2 ↩3 ↩4

  20. The searches behind the statement in the text were run against the corpus full-text index, which covers the EFTA, HOUSE_OVERSIGHT and DOJ-OGR productions in one table. Each was run as an exact phrase against the page text: “CHURCHER DEPOSITION”, “Churcher Dep”, “Churcher Depo”, “Deposition of Churcher”, “deposition of Sharon Churcher”, “deposition of Ms. Churcher”, “Churcher Tr”, “Churcher Transcript”, “SHARON CHURCHER, having”, “SHARON CHURCHER, called”, “Churcher, having been”, “testimony of Sharon Churcher”, “Churcher testified”. Ten returned no document. “Deposition of Churcher” returned one document, the defendant’s Response to the motion to quash, where the phrase appears on its own sheet 13 of 21 (the brief’s own page 11), in the sentence opening the defendant’s asserted showing: “Ms. Maxwell proffers the following clear and specific showing establishing each of these elements, requiring production of the information sought and deposition of Churcher.” It is not in the prayer for relief, which asks the court to “compel deposition and the Production of Documents by Sharron Churcher”. Sheet 13 was read at the page image. “deposition of Sharon Churcher” returned one document, the notice of service and notice of deposition of 20 June 2016 cited above, on its sheets 2 and 3. “deposition of Ms. Churcher” returned four documents; all four carry the reporter’s job code of the 23 June hearing transcript on every sheet, and the phrase in each is the sentence quoted here from that transcript’s sheet 25. The unrestricted term “Churcher” returns 817 pages across 301 documents, so the null is not an artefact of the name being absent from the corpus. This is a statement about what the extracted text of this release contains and about these thirteen phrasings; it is not a statement about the SDNY docket, and a deposition that was never transcribed, or whose transcript is not in this release, would not appear in any of them. ↩ ↩2

  21. Same opinion, its own sheet 19 of 21 (its own page 18): “makes Churcher’s materials no more critical than any other evidence in this case. Maxwell has not cited any authority for a wholesale ‘libel exception’ or a ‘plaintiff’s credibility exception’ to the Shield Law.”; and “Finally, even if the information sought were as critical as Maxwell contends, she has not yet established that she has turned to Churcher ‘only as a last resort.’ … Maxwell seeks to reopen Plaintiff’s deposition, a motion which has been granted, and is still awaiting further production from Plaintiff. See Dkt. Nos. 205, 207, 230; Minute Entry, June 23, 2016. Epstein’s motion to quash has been denied (Dkt. No. 252), and Cassell’s motion to quash has been denied in part. And all that Maxwell has done to ‘exhaust’ law enforcement sources,” continuing on the next sheet. The preceding sheet, its own sheet 18 of 21, carries the court’s statement that “in almost any civil lawsuit, the credibility of a party or witness will be a ‘central issue’ — all the more so in a defamation case, where truth or falsity of the underlying statements is at issue”, read from the extracted text; sheet 19 was read from the page image. https://epstein-data.com/EFTA02800991 pp. 18–19. ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7

  22. Same opinion, its own sheet 20 of 21 (its own page 19), which carries four lines and nothing else: “apparently, is to file a single FOIA request. Resp. at 16 n.7. There thus remain numerous alternative sources for the information Maxwell seeks. She may not conscript Churcher as her ‘investigative arm’ in the meantime.” The case name closing the citation at the end of the last line is covered by a solid bar. Read from the page image. https://epstein-data.com/EFTA02800991 p. 20. ↩ ↩2

  23. Subpoena to Sharon Churcher, filed as Exhibit A to the Declaration of Laura R. Handman, [plaintiff] v. Ghislaine Maxwell, No. 15-cv-07433 (S.D.N.Y.), Document 217-1, ECF header “Filed 06/15/16”, its own sheet 1 of 7: a cover bearing only the words “EXHIBIT A”. The release stamps a separate number on each sheet of this run, from the stamp EFTA02798260 on sheet 1 to the stamp EFTA02798266 on sheet 7; the document is cited here by its first number and by sheet. Read from the page image. https://epstein-data.com/EFTA02798260 p. 1. ↩

  24. Same document, its own sheet 3 of 7: “AO 88A (Rev. 12/13) … (Page 2)”, “Civil Action No. 15-cv-07433-RWS”, heading “PROOF OF SERVICE / (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)”. Every entry rule on this sheet is blank: the “I received this subpoena for” line, the “on (date)” line, both boxes (“I served the subpoena by delivering a copy to the named individual as follows” and “I returned the subpoena unexecuted because”), the tendered-fees line, the travel and services lines, the “Date:” line, and the rules for “Server’s signature”, “Printed name and title” and “Server’s address”. The one figure entered is “0.00” against “for a total of $”. Read from the page image. https://epstein-data.com/EFTA02798260 p. 3. ↩

  25. Same document, its own sheet 4 of 7: “Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)”, reprinted in two columns. The quoted passage is Rule 45(d)(3)(A)(iii) and (iv), and is legibly printed on this sheet. Read from the page image at 300 and 600 dpi. https://epstein-data.com/EFTA02798260 p. 4. ↩

  26. Same document, its own sheet 5 of 7, headed “ATTACHMENT A / DEFINITIONS”, numbered 1 to 9. Definition 2: “‘You’ or ‘Your’ means Sharon Churcher, any firm with whom You have been affiliated in the relevant time period, and anyone acting on Your behalf, and any employee, agent, attorney, consultant, assignee, related entities or other representative of You.” Definition 4: “‘Document’ is intended to be defined as broadly as permitted by Rule 34 and includes every writing or record of every type and description that is or has been in Your possession, custody or control, or of which You have knowledge, including but not limited to, emails, text messages, instant messages, videotapes, photographs, notes, letters, memoranda, forms, books, magazines, resumes, notebooks, ledgers, journals, diaries, calendars, appointment books, papers, agreements, contracts, invoices, analyses, transcripts, plaques, correspondence, telegrams, drafts, data processing or computer diskettes and CD disks, tapes of any nature and computer interpretations thereof, instructions, announcements, and sound recordings of any nature.” Read from the page image. https://epstein-data.com/EFTA02798260 p. 5. ↩

  27. Same opinion, its own sheet 3 of 21 (its own page 2): categories 3 to 6 of the document demand as quoted in the text, and the opening of section “II. Facts Relating to Churcher and the Parties to this Action”: “Churcher is a professional print journalist who has worked continuously in New York since 1983. Churcher Decl. ¶ 1. She is currently employed by American Media, Inc., which publishes the National Enquirer (the ‘Enquirer’) and RadarOnline.com (‘Radar’), where she has worked since November 2014.” Read from the page image. https://epstein-data.com/EFTA02800991 p. 3. ↩

  28. Same declaration, its own sheet 2 of 2: paragraph 3 concludes “She also stated that her client would consent to adjourn the date of compliance only if Ms. Churcher was intending to comply with the Subpoena rather than move to quash.”; paragraph 4: “Because the Subpoena calls for documents and information for which Ms. Churcher is bound by confidentiality (in addition to non-confidential newsgathering information that is also protected by the Shield Law), I could not agree to this condition. Accordingly, the compliance date for the Subpoena remains June 16, 2016.” The sheet closes “I declare under penalty of perjury that the foregoing is true and correct.” and “EXECUTED this 15th day of June, 2016 in Washington, D.C.” above a signature mark and the printed name “Laura R. Handman”. The word “She” opening the sentence quoted first is the last word of sheet 1, not of this sheet; and the extracted text of this sheet renders the surname with a damaged character, which the page image shows plainly as “Churcher”. Both sheets of this document were read at the page image. https://epstein-data.com/EFTA02798267 p. 2. ↩ ↩2

  29. Same declaration, its own sheet 5 of 5, paragraphs 12 and 13, then the jurat. Paragraph 12: “It is important to me that I emphasize the negative impact compelled production of the newsgathering documents and information Ms. Maxwell seeks would have on my career as a journalist. Given the volume of articles I have written, the diverse scope of newsgathering activities I have engaged it, and the breadth of topics I cover, if I were required to give evidence in any civil or criminal matter related to my work, I would cease acting as a professional journalist and instead become a professional witness.” The “engaged it” is the declaration’s own. Paragraph 13: “In sum, to ensure that I maintain my objectivity, do not jeopardize my relationship with confidential sources and avoid becoming an investigative arm for the government or civil litigants, it is essential that I am not compelled to produce documents relating to my newsgathering activities.” Below: “I declare under penalty of perjury that the foregoing is true and correct.”, the execution line dated the 15th day of June 2016, and a manuscript signature above the declarant’s printed name. Read from the page image. https://epstein-data.com/EFTA02798255 p. 5. ↩

  30. Same memorandum, its own sheet 15 of 25 (the brief’s own page 10), on the harms the qualified privilege is meant to prevent: the court “explained further that those harms include ‘burden[ing] the press with heavy costs of subpoena compliance,’ increased requests for anonymity from sources anxious to avoid being ‘sucked into litigation,’ and ‘the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties.’” The name of the Second Circuit case being quoted is covered by a solid bar and is not supplied here. Read from the page image. https://epstein-data.com/EFTA02798269 p. 15. ↩

  31. Same memorandum, its own sheet 2 of 25, “TABLE OF CONTENTS”. Under “ARGUMENT” it carries two numbered grounds, the first with two lettered sub-headings and the second of those with two numbered sub-headings: “THE SUBPOENA SEEKS DOCUMENTS THAT ARE PRIVILEGED FROM DISCLOSURE BY THE NEW YORK SHIELD LAW”; “To the Extent the Subpoena Seeks Information Received Pursuant to Promises of Confidentiality, Such Information Is Absolutely Privileged Under the Shield Law”; “All of the Information Sought by the Subpoena Is, At a Minimum, Protected by the Qualified Privilege Under the Shield Law”; “The Information Sought by Ms. Maxwell Is Not ‘Highly Material and Relevant’ to—Let Alone ‘Critical or Necessary to the Maintenance of’—Any Claim or Defense”; “Ms. Maxwell Has Not Exhausted Alternative Sources for the Information Sought by the Subpoena”; and “THE SUBPOENA SHOULD ALSO BE QUASHED UNDER RULE 45 FOR FAILURE TO ALLOW A REASONABLE TIME FOR COMPLIANCE AND IMPOSING AN UNDUE BURDEN”. Read from the page image. https://epstein-data.com/EFTA02798269 p. 2. ↩

  32. Same memorandum, its own sheets 6 and 7 of 25 (the brief’s own pages 1 and 2), the preliminary statement. Sheet 6: “Sharon Churcher’s involvement in this defamation case stems entirely from the fact that, in her capacity as a professional journalist, she wrote several news articles about the Plaintiff … the Defendant Ghislaine Maxwell (who issued the Subpoena), and Jeffrey Epstein.”; “The Subpoena, served just twelve days before the date of compliance, commands Churcher to sit for a deposition and produce a broad array of documents”; “The Subpoena does not limit the demand for these documents to any particular time period or topic, instead requiring Churcher to sift through a decade’s worth of communications, from multiple email accounts with multiple employers.” Sheet 7 states the standard quoted in the text: the Shield Law “provides reporters with an absolute privilege against disclosure of any information received in confidence, including the identity of confidential sources, and a qualified privilege for unpublished newsgathering material, even when it is not otherwise confidential. To overcome the qualified privilege, the party seeking disclosure bears a heavy burden to clearly show that the information sought is so ‘critical or necessary’ to the case that the party’s claim or defense ‘virtually rises or falls’ based on the information, and that the party has ‘exhaust[ed] all other available sources’ for the information.” Read from the extracted text of these two sheets; sheets 1, 2, 8, 15, 24 and 25 of this document were read at the image. https://epstein-data.com/EFTA02798269 pp. 6–7. ↩

  33. Same memorandum, its own sheet 8 of 25 (the brief’s own page 3): “Since the documents requested are all protected under the Shield Law, Churcher should not be required to sit for a deposition that will presumably cover the same privileged topics. As the New York Court of Appeals explained in its most recent decision on the Shield Law, where ‘the entire focus’ of a reporter’s testimony would be on privileged topics, ‘no legitimate purpose would be served by requiring the witness to go through the formality of appearing [to testify] only to refuse to answer questions concerning the information sought.’”; and “Second, even if the information sought in the Subpoena were not covered by the Shield Law, the Subpoena must be quashed under Rule 45 of the Federal Rules of Civil Procedure (‘Rule 45’) because it is unduly burdensome and does not provide reasonable time for compliance. Twelve days is simply not sufficient to collect, review and produce over five years’ worth of communications that span multiple places of employment (and therefore multiple email servers), and which indisputably include extensive communication with confidential sources that would need to be redacted.” The name of the Court of Appeals case quoted is covered by a solid bar and is not supplied here. Read from the page image. https://epstein-data.com/EFTA02798269 p. 8. ↩ ↩2

  34. The structure of the Sealed Opinion, read across all twenty-one of its ECF sheets. Its numbered headings are: “I. Prior Proceedings” (sheet 2); “II. Facts Relating to Churcher and the Parties to this Action” (sheet 3); “III. The Applicable Standard” (sheet 5); “IV. The New York Shield Law Applies” (sheet 6), with “A. Information Received Pursuant to Promises of Confidentiality is Absolutely Privileged Under the Shield Law” (sheet 8) and “B. The Information Sought by the Subpoena is Protected by the Qualified Privilege” (sheet 10); “V. Maxwell Has Not Overcome the Protections of the Shield Law” (sheet 18); and “VI. Conclusion” (sheet 21). There is no further numbered heading. Every one of the eight was read at the page image. Searched against the extracted text of all twenty-one sheets, with whitespace collapsed: “reasonable time” and “unreasonable” return nothing; “undue burden” returns one, on sheet 5, inside the section III recital of Rule 45(c)(3)(A)(iv); “burden” returns six, the other five being the same recital’s “initial burden” and “unduly burdensome”, the qualified privilege’s “very heavy burden” on sheet 8, and on sheet 12 the burdens the privilege is designed to protect against. None of the six sits in a section of the court’s own reasoning on the movant’s Rule 45 ground. https://epstein-data.com/EFTA02800991 pp. 2, 3, 5, 6, 8, 10, 18, 21. ↩

  35. Same brief, its own sheet 4 of 21 (the brief’s own page 2), carrying the second and third of the three reasons and the brief’s footnote 1. “Second, in certain instances, Churcher was also acting as a source for information to Plaintiff’s counsel and law enforcement agencies, specifically stating that she was not acting in her capacity as a journalist. In these instances, she was not gathering news for publication, she was providing information she had already gathered. Providing this information to third parties waived any qualified privilege that ever arguably existed.”; “Finally, to the extent that any information sought is covered by the qualified protection of Civil Rights Law § 79–h(c), Ms. Maxwell provides a clear and specific showing that the information is highly material or relevant, critical or necessary to the Ms. Maxwell’s truth defense, and not obtainable from any alternative source.” Footnote 1, printed at the foot of the same sheet: “As discussed in detail below, the undersigned has informed Churcher’s counsel that the Subpoena is not intended to cover any information from confidential sources. Thus, the absolute privilege found in Civil Rights Law § 79–h(c) is inapplicable”. The missing full stop at the end of that footnote is the brief’s own. A grey highlight in the copy as filed covers the first three lines of the sheet: lines 1 and 2 across the full measure, and line 3 from its start to the full stop after “her capacity as a journalist.” Measured on the 300 dpi render, the highlighted paper reads 216 of 255 against 255 for the rest of the sheet; the three highlighted bands are each 58 px deep at this sheet’s 115 px line pitch, and on line 3 the highlight ends at x = 833 while the sheet’s text measure runs from x = 302 to x = 2211. Read from the page image, the highlight measured line by line and column by column across the render. https://epstein-data.com/EFTA02792820 p. 4. ↩ ↩2

  36. Same transcript, its own sheet 13 of 35: “THE COURT: Yes, OK. / Churcher. Yes.”; “MR. FEDER: Eric Felder, from [bar] [bar] Tremaine, for the movant.” (the reporter’s “Felder” for Feder is the transcript’s own, and the same speaker is given as “Eric Feder” at line 11); “MR. FEDER: Good afternoon. My name is Eric Feder from [bar] [bar] Tremaine, for the movant, Sharon Churcher. / My client, Sharon Churcher, is a journalist. She is currently employed by American Media, Inc., where she is a reporter for Radar Online and the National Inquirer. And prior to that she worked at the British newspaper, The Mail on Sunday. She’s also worked as a freelance reporter. And she has been subpoenaed as a third party here to give testimony and to provide documents in this case. We move to quash the subpoena.”; and “As Ms. Churcher states in her affidavit in support of the motion, her entire involvement with this case, with the plaintiff, with the defendant, all of the facts underlying the case was as a reporter seeking to report and publish news stories.” The spelling “National Inquirer” is the transcript’s own. The firm name is withheld in part by the production and is not supplied here. Read from the page image. https://epstein-data.com/EFTA02799311 p. 13. ↩

  37. Same transcript, its own sheet 17 of 35: “So as an initial point, it is quite clear that they haven’t exhausted all other sources up to and including the proceedings here today, where they are continuing to seek material from the plaintiff’s email accounts, which your Honor just granted an order that would facilitate that, and also the pending motion to reopen plaintiff’s deposition. So clearly they haven’t exhausted plaintiff as a source.”; and, on the same sheet, “They are also asking for Ms. Churcher’s communications with the plaintiff’s agents or attorneys or communications with law enforcement about the plaintiff, but we’re not aware of any effort to obtain that information from those agents and attorneys or from law enforcement.” Counsel’s argument opens at sheet 13 line 11 — line 8 is his appearance announcement and line 10 the court’s answer to it — and runs to sheet 20 line 7, where the court thanks him at line 8 and the defendant’s counsel begins at line 9. Sheets 13, 17 and 20 were read at the page image; sheets 14 to 16 and 18 to 19 were read from the extracted text. https://epstein-data.com/EFTA02799311 p. 17. ↩

  38. Same transcript, its own sheet 21 of 35. The sentence begun on the previous sheet completes: “Ms. Churcher left for Paul Cassell, who is a lawyer in this case who entered an appearance in this case, in February of 2015.” The message as counsel read it begins at line 4, “On February 5, 2015, your Honor, it starts out: Paul, it’s Sharon. I wanted to discuss and with you on a deep background basis something that’s in my file.”, and ends at line 11, “On a deep background basis, if it’s not going to be a conflict for you, it’s something that I wanted to get your advice on. Take care. Bye-bye.” Counsel then argued from it: “This voice message is troubling on a number of levels, your Honor, in connection with this case. First, it has never been provided to us, and there is a lawyer who has entered an appearance in this case. We have asked for this kind of discovery from the plaintiff and it has never been provided, and it’s germane to the issues before the Court. But what it reveals is that this is not Ms. Churcher’s first interaction with Mr. Cassell, lawyer for the plaintiff. They are on a first-name basis. She is feeling free to call him and leave messages for him.” What stands on this sheet is counsel’s reading of what he said the recording contained, not the recording; the movant’s answer to it is on sheet 25. Read from the page image. https://epstein-data.com/EFTA02799311 p. 21. ↩ ↩2

  39. Same transcript, its own sheet 22 of 35: “And it’s a problem for Ms. Churcher, your Honor, because it’s clear, as is attached to our papers, that Ms. Churcher’s role in this entire ordeal was not simply a journalist. Ms. Churcher is a self-described friend. She is a self-described adviser. She’s a self-described confidante. She is a self-described advocate. In many instances throughout this ordeal, Ms. Churcher was acting as a source of information to Mr. [bar], who is another lawyer who has entered an appearance in this case, and to law enforcement.”; and “The Shield Law only applies when journalists are asked to disclose information received in the course of gathering or obtaining news for publication. And Ms. Churcher’s activities in connection with this case are far outside of those bounds. To be clear, we don’t want that information from Ms. Churcher. So whatever information Ms. Churcher has that was indeed obtained in her job in the course of gathering or obtaining news for publication, we haven’t subpoenaed that information.” The name at line 14 is covered by a solid bar and is not identified here, and no role is supplied for it beyond the one the sheet itself gives. This is the oral counterpart of the concession the brief recorded in a footnote on its own page 2. Read from the page image. https://epstein-data.com/EFTA02799311 p. 22. ↩ ↩2

  40. Same transcript, its own sheet 23 of 35, the sentence running from sheet 22 line 24 to this sheet’s line 4: “But I suggest, your Honor, that the blanket notion that Ms. Churcher can’t sit for a deposition in this case is simply wrong, and these issues need to be resolved on a question-and-answer basis by Ms. Churcher, because her role in connection with this case far exceeded any role as a journalist.”; and “Indeed, your Honor, Ms. Churcher is a fact witness in this case. The Shield Law relied on is only applicable when the journalist is asked to disclose information, again, received in the course of gathering or obtaining news for publication. And much of the information that we are asking — if, indeed, it is not all — from Ms. Churcher has nothing to do with information she gathered or collected in the course of gathering news for publication.” Read from the page image. https://epstein-data.com/EFTA02799311 p. 23. ↩

  41. Same transcript, its own sheet 24 of 35. The passage running from sheet 23 line 22 to this sheet’s line 3 reads: “There is a series of exchanges between the plaintiff and Ms. Churcher that we have in email communications that have been provided to the Court that demonstrate this course of conduct over time. We also have a series of communications between the plaintiff and law enforcement and the plaintiff’s lawyers that are not news-gathering activities. These are wholly outside of the process of gathering news.”; and the answer on exhaustion: “I think the Court knows — I’m sure the Court is exhausted with all of the pleadings that have been filed in this case related to discovery. I believe we have exhausted all avenues available to us to obtain this information. There is really no place else to go. And so there is — I think it is not well founded, your Honor, that there is some notion that we have not done everything that we can to get this information from the plaintiff, Microsoft, other places before turning to a subpoena to Ms. Churcher.” The name at line 5 is covered by a solid bar and is not identified here. He closed the materiality point: “Ms. Churcher is likely the only source of this highly relevant information, which is this 24-page fabricated diary and the testimony around that, communications with law enforcement and the FBI that have no legitimate investigative reporter purpose.” That characterisation is the defendant’s allegation, made by her counsel in argument; the court did not accept the materiality case built on it. Read from the page image. https://epstein-data.com/EFTA02799311 p. 24. ↩ ↩2

  42. Same transcript, its own sheet 25 of 35, the close of the defendant’s argument and the movant’s reply: “should deny the motion to quash, we should be allowed to proceed forward with the deposition of Ms. Churcher. If there are particularized objections to the questions because counsel believe that those invade some privilege, they should be raised at that time, and we go forward on a question-by-question basis because most of this information will not be subject to any privilege.”; “MR. FEDER: May I be heard briefly? / THE COURT: Mm-hmm. / MR. FEDER: Thank you. Just very briefly.”; “First of all, the voicemail that my colleague read is totally consistent with news gathering. She mentions that it’s on deep background, and in trying to cultivate the source she describes herself as almost a friend. Again, I don’t think that type of less formal communication is indicative of a transformation from a journalist into something else.”; “But more problematically, we haven’t heard that voicemail. We haven’t seen any of the emails they are talking about because they are redacted; the exhibits containing them were filed under seal. So we don’t know exactly which pieces of information they are trying to seek and which pieces of information they are claiming are not subject to the privilege.”; and, at lines 24 and 25, the opening of a sentence that carries over to the next sheet, “I think we can all agree that Ms. Churcher is in fact a journalist, that she did in fact publish stories from”. Read from the page image. https://epstein-data.com/EFTA02799311 p. 25. ↩ ↩2 ↩3 ↩4 ↩5 ↩6

  43. Letter motion of Eric J. Feder to the Hon. Robert W. Sweet, Document 262, ECF header “Filed 07/05/16”, 2 sheets, its own sheet 1 of 2, dated “July 5, 2016” and headed “Re: [bar] v. Maxwell, No. 15-cv-7433 – Subpoena to Sharon Churcher”: “This firm represents non-party Sharon Churcher, who has been subpoenaed in the above-referenced case. As Your Honor is aware, Ms. Churcher has filed a motion to quash the subpoena (Dkt. Nos. 215-18 (the ‘Motion’)), for which argument was heard on June 23, 2016.”; “As I stated at the argument on the Motion on June 23, at that point, counsel for Churcher had access only to the publicly-filed redacted version of Defendant’s Response to the Motion, which was filed the evening of June 22, 2016. (Dkt. No. 246 (the ‘Response’)). Accordingly, we were not able to respond to the substance of the Defendant’s arguments at the hearing or in a brief. Although we had previously offered (via email to Defendants’s counsel) to sign an acknowledgment of the Protective Order entered in this case, and thereby gain access to confidential documents as counsel to a potential witness in the case (see Protective Order ¶¶ 5.a. & 5.g.), Defendant’s counsel did not respond to our offer. Subsequent to the argument, we provided the parties with a signed acknowledgment of the Protective Order, and on the evening of June 24, 2016, Defendant’s counsel provided us with Defendant’s full, unredacted response to the motion to quash.”; and “We have consulted with counsel for the parties in the case, and all consent to this filing.” The two requests are numbered 1) and 2) on sheet 1 and read “File a post-hearing Reply brief in further support of the motion (the ‘Reply’)” and “File portions of the Reply under seal pursuant to the Protective Order entered in this case. (Dkt. No. 62 (the ‘Protective Order’).)”. Sheet 2 of 2 carries the second under the heading “Leave to File Reply Brief Under Seal”, states “Churcher also moves to file portions of the Reply under seal pursuant to the Protective Order”, quotes the Protective Order, and records “We are filing a redacted version of the Reply on ECF simultaneously with this Letter Motion.”; it closes “Respectfully Submitted,” above a partly withheld firm name and “/s/ Eric J. Feder”, and “cc: Parties’ counsel (via CM/ECF)”. The spelling “Defendants’s” is the letter’s own. Telephone, facsimile and email lines printed on these sheets are not reproduced here; the firm name is withheld in part by the production and is not supplied here. Both sheets were read at the page image. https://epstein-data.com/EFTA02799192 pp. 1–2. ↩ ↩2 ↩3

  44. The same letter motion re-imaged with the court’s endorsement on it, 2 sheets, its own sheet 1 of 2. It carries two stacked ECF headers: the outer reads “Case 1:15-cv-07433-LAP Document 275 Filed 07/13/16 Page 1 of 2”, and beneath it the inner reads “Case 1:15-cv-07433-RWS Document 262 Filed 07/05/16 Page 1 of 2”, so Document 275 is Document 262 re-imaged; the printed text below is that same letter of 5 July 2016, read against the Document 262 copy at the image. At the foot of the sheet, below the last line of printed text, stand four manuscript marks: the words “So ordered”; below them a signature-shaped mark reading “Sweet”; the letters “U.S.D.J.” after it; and below that the date “7-11-16”. The strokes vary in weight along their length and sit off the baseline grid of the printed letter; the printed text and the printed footer on the same sheet do neither. What is recorded here is what the sheet shows. The sheet also carries a chambers RECEIVED stamp and the SDNY “DOCUMENT ELECTRONICALLY FILED” stamp, whose “DATE FILED:” rule is completed by hand and reads 7/13/16 — two days after the date written beside the endorsement. The plaintiff’s name in the “Re:” line is covered by a solid bar and is not identified here; telephone and email lines printed on this sheet are not reproduced here, and the firm name is withheld in part by the production and is not supplied here. The release stamps a separate number on each sheet of this run, from EFTA02799309 on sheet 1; the document is cited here by its first number and by sheet. Rendered at 300 dpi and read at the page image, with the foot of the sheet examined again at twice that size. https://epstein-data.com/EFTA02799309 p. 1. ↩

  45. “LIST OF DECIDED MOTIONS”, ECF header “Case 1:15-cv-07433-LAP Document 1049 Filed 04/14/20 Page 29 of 91”, 91 sheets, its own sheet 29 of 91 (its own printed page 28). The table’s column headings read “DOCKET #”, “MOTION”, “DATE FILED”, “RELATED DOCKET #”, “RESOLVED DOCKET #”, “RESOLVED DATE”, “SEALED” and “PREVIOUSLY UNSEALED”. The row for Docket 262 reads “Churcher Letter Motion for Leave to File Reply Brief in Further Support of Motion to Quash”, date filed “7.5.16”, resolved docket “275”, resolved date “7.11.16”, the remaining columns blank. The row for Docket 263 reads “Churcher Reply Brief in Further Support of Motion to Quash”, date filed “7.5.16”, every other column blank. Neither row records a disposition. The plaintiff’s name in the caption above the table is covered by a solid bar. The release stamps a separate number on each sheet of this run, from EFTA02781677 on sheet 1; the document is cited here by its first number and by sheet. The extracted text of this sheet interleaves the columns, does not preserve the rows, and prints the heading with its words reordered, so what is given here is read from the page image. https://epstein-data.com/EFTA02781677 p. 29. ↩

  46. Same opinion, its own sheet 6 of 21 (its own page 5), section “IV. The New York Shield Law Applies”: “The New York Shield Law, or reporter’s privilege, protects reporters from compelled disclosure of both confidential information and sources, as well as non-confidential, unpublished newsgathering materials and information. Under Federal Rule of Evidence 501, ‘in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.’ Because this case concerns a state law claim that is in federal court because of diversity of citizenship, evidentiary and discovery privileges are governed by New York law. … Moreover, Churcher is a New York-based journalist. Churcher Decl. ¶¶ 1, 4. Accordingly, the New York Reporters Shield Law applies to the Subpoena.” Read from the extracted text of this sheet; sheets 1, 2, 3, 4, 17, 19, 20 and 21 of this document were read at the image. https://epstein-data.com/EFTA02800991 p. 6. ↩

  47. Same opinion, its own sheet 9 of 21 (its own page 8): “At a minimum, the Shield Law would absolutely preclude any inquiry into the identity of confidential sources on which Churcher relied in reporting the Articles or any information that may reveal those sources’ identities). On their face, many of the Articles rely on confidential sources, including law enforcement sources.” The unmatched parenthesis is the opinion’s own. Read from the extracted text of this sheet. https://epstein-data.com/EFTA02800991 p. 9. ↩

  48. Same opinion, its own sheet 10 of 21 (its own page 9): ”‘[I]mportant interests beyond confidentiality … are served by the reporter’s qualified privilege,’ including ‘the privacy of editorial processes and the press’s independence in its selection of material for publication in accordance with the broader public policy of encouraging the free flow of information and avoiding a chill on the press.’” Read from the extracted text of this sheet. https://epstein-data.com/EFTA02800991 p. 10. ↩

  49. Same opinion, a sentence crossing the sheet break from its own sheet 10 of 21 (its own page 9) to its own sheet 11 of 21 (its own page 10): the privilege protects “the independence of the press and the need to allow the press to publish freely on topics of public interest without harassment and scrutiny by litigants seeking to conduct ‘fishing expeditions’ into [unpublished] materials in the hope that some relevant information may turn up.” Sheet 10 ends at “without harassment”; sheet 11 opens “and scrutiny by litigants seeking to conduct” and closes the sentence at its line 3 with the citation “Id. at *5.” Both sheets read at the page image. https://epstein-data.com/EFTA02800991 pp. 10–11. ↩

  50. Same opinion, its own sheet 14 of 21 (its own page 13): “The Second Circuit instructs that, in determining whether the reporter’s privilege applies, the Court should look to the nature of the ‘primary relationship between’ the respective parties to determine whether it ‘ha[s] as its basis the intent to disseminate the information to the public garnered from that relationship.’ … Here, the ‘primary relationship’ between Churcher and Plaintiff was that of a professional reporter gathering information from a source for the Articles that were, in fact, subsequently published under Churcher’s byline over the next several years.” Read from the extracted text of this sheet. https://epstein-data.com/EFTA02800991 p. 14. ↩

  51. Same opinion, its own sheet 16 of 21 (its own page 15): “Indeed, frequent, often informal communication with sources, even if not for the immediate purpose of gathering information for a specific article, is an integral part of the overall newsgathering process. Accordingly, the Shield Law does not narrowly apply only to the specific exchanges where the source conveys ‘news.’” Read from the extracted text of this sheet. https://epstein-data.com/EFTA02800991 p. 16. ↩

  52. Same opinion, its own sheet 17 of 21 (its own page 16). The upper part of this sheet carries thirteen solid bars on thirteen consecutive line positions, occupying the space between the top margin and the first surviving paragraph; no words stand between them. Measured on the 300 dpi render, the bars are 52 to 53 px deep at this sheet’s 113 px line pitch, and the surviving text below them runs from x = 314 to x = 2173, a measure of 1,860 px. Twelve of the bars are 1,727 to 1,910 px wide, that is 93 to 103 per cent of that measure; the thirteenth and last is 1,241 px, about two thirds of it. The extracted text of the sheet begins at the first surviving paragraph and carries no marker for the withheld lines. The surviving text reads: “Because Churcher has established that she was, and is, a journalist using Plaintiff as a source, the Subpoena is quashed as a consequence of the protections of the Shield Law.”; and “Maxwell’s conclusory assertion that ‘[n]one of the communications’ between Churcher and Plaintiff’s attorneys/agents or law enforcement ‘are in a newsgathering capacity,’ Response at 8, is contradicted by Churcher’s statements to the contrary and by the fact that individuals in those categories are quoted in the articles themselves (both by”. The attribution of the withheld block to the court’s treatment of the defendant’s email exhibits is inferred from the sheet before it and is identified as an inference in the text. Read from the page image. https://epstein-data.com/EFTA02800991 p. 17. ↩ ↩2

  53. The second copy of the same opinion in this release, its own sheet 1 of 21, carrying two ECF headers: “Case 1:15-cv-07433-LAP Document 503 Filed 11/21/16 Page 1 of 21” above “Case 1:15-cv-07433-RWS Document 440-1 Filed 09/20/16 Page 1 of 21”, and a clerk’s stamp reading “USDC SDNY / DOCUMENT / ELECTRONICALLY FILED / DOC #: ___ / DATE FILED:” with “11-21-16” entered by hand. The appearances block, the caption bar and the two partly withheld firm names are the same as on the first copy. Only sheet 1 of this copy was read at the image; sheet 4 was compared in the extracted text and matches. Read from the page image. https://epstein-data.com/EFTA02801332 p. 1. ↩

  54. Deposition transcript filed as an exhibit in the same action under the ECF header “Case 1:15-cv-07433-LAP Document 1307-10 Filed 08/25/23”, 89 sheets; sheet 1 is a cover reading “EXHIBIT D” and sheet 2 is the transcript’s own title page, which prints the deponent’s name under a solid bar above “VS. MAXWELL”, the word “Deposition”, a second solid bar, and the date “05/03/2016”, over the court reporting firm’s imprint. The deponent is not identified here. The count of sheets carrying the name “Churcher” is a count of matches in the full-text index of the extracted text of this document, not a reading of all 89 images; the sheets so matched are 4, 44, 49, 56, 57, 58, 59, 60, 64, 65, 67, 69, 72, 74, 75, 76 and 77. Nothing from the substance of the testimony is reproduced on this page. Read from the page image (sheet 2); the remainder from the extracted text. https://epstein-data.com/EFTA02791036 p. 2. ↩

  55. SEALED OPINION, [plaintiff] v. Ghislaine Maxwell, 15 Civ. 7433 (S.D.N.Y.), Document 440-1, ECF header “Filed 09/20/16”, 21 sheets, its own sheet 1 of 21, the appearances block. The plaintiff’s name in the caption is covered by a solid bar. “Counsel for Plaintiff / BOEIS, SCHILLER & FLEXNER LLP / 401 East Las Olas Boulevard, Suite 1200 / Fort Lauderdale, FL 33301 / By: Sigrid S. McCawley, Esq. / Meredith L. [bar], Esq.” (the spelling “BOEIS” is the opinion’s own); “Counsel for Defendant / HADDON, [bar] AND [bar], P.C. / 150 East Tenth Avenue / Denver, CO 80203 / By: Laura A. Menninger, Esq. / Jeffrey S. Pagliuca, Esq.”; “Counsel for Respondent Sharon Churcher / [bar] [bar] TREMAINE LLP / 1251 Avenue of the Americas, 21st Floor / New York, NY 10020 / By: Eric J. Feder” and, at a Washington address, “By: Laura R. Handman”. Both firm names are withheld in part by the production and neither is supplied here. Read from the page image. https://epstein-data.com/EFTA02800991 p. 1. ↩

  56. Docket abstract, a single sheet, headed at its foot “CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e)” and stamped with three numbers, “DB-SDNY-0091017”, “SDNY_GM_00237201” and the release number. The sheet carries its own printed page number “Page 3” and is not a court-generated docket sheet: it prints ”*** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY *** Copyright © 2018 CourtLink Corporation” above “UNITED STATES DISTRICT COURT / SOUTHERN DISTRICT OF NEW YORK / (Foley Square - NYC)”. Its roster reads “PLAINTIFF: [bar]”; “DEFENDANT: Ghislaine Maxwell (Terminated 5/25/2017)”; “Applicant: John Stanley Pottinger”; “Interested Party: [bar]; NYP Holdings, Inc.,; Daily News, L.P.”; “Intervenor: Michael Cernovich d/b/a Cernovich Media; Miami Herald Media Company; Julie Brown; Alan M. Dershowitz”; “Material Witness: [bar]”; “Miscellaneous: [bar]”; “Respondent: Sharon Churcher; Jeffrey Epstein”; “DOCKET CASE NUMBER: 1:15cv7433”. The block printed above this roster, which carries a different case caption and an attorney’s contact lines, belongs to an unrelated matter and is not reproduced. Read from the page image at 400 dpi. https://epstein-data.com/EFTA01387851 p. 1. ↩ ↩2

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