2017 Summer Zervos V Donald J Trump Memorandum of Law I 192

FILED: NEW YORK COUNTY CLERK 09/14/2018 11:04 PM INDEX NO.
150522/2017
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 09/14/2018
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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:
SUMMER ZERVOS, : Index No. 150522/2017
:
Plaintiff, : Hon. Jennifer G. Schecter
:
v. : Motion Seq. No. 005
:
DONALD J. TRUMP, :
:
Defendant. :
:
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DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION

TO PLAINTIFF’S MOTION TO COMPEL
KASOWITZ BENSON TORRES LLP
Marc E. Kasowitz
Christine A. Montenegro
Paul J. Burgo
1633 Broadway
New York, New York 10019
P: (212) 506-1700
Attorneys for Defendant Donald J. Trump
September 14, 2018
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FILED: NEW YORK COUNTY CLERK 09/14/2018 11:04 PM INDEX NO. 150522/2017
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT .................................................................................................................................. 5
I. THE REQUEST IS NOT RELEVANT TO PLAINTIFF’S DEFAMATION

CLAIM. ............................................................................................................................... 6
II. PLAINTIFF’S REQUEST FOR PROPENSITY EVIDENCE IS IMPROPER. .............. 12
A. Plaintiff’s Request Will Not Lead To Admissible Evidence. ............................... 12
B. Plaintiff Has Not Shown That Any Molineux Exception Applies. ....................... 14
1. The Common Scheme Or Plan Exception Does Not Apply. .................... 14
2. The Intent Exception Does Not Apply...................................................... 18
III. THE REQUEST IS IMPROPER FOR CREDIBILITY/IMPEACHMENT ..................... 21
IV. THE REQUEST IS IMPROPER UNDER ANDON. ........................................................ 23
A. The Request Would Needlessly Delay The Proceedings. ..................................... 23
B. The Court Should Give Special Consideration to Burdens on the President. ....... 25
CONCLUSION ............................................................................................................................. 25
2 of 34
TABLE OF AUTHORITIES
Page(s)
Cases
Abell v. Cornwall Indus. Corp.,

241 N.Y. 327 (1925) ..................................................................................................................8
Air Wisconsin Airlines Corp. v. Hoeper,

571 U.S. 237 (2014) ...................................................................................................................8
Andon v. 302-304 Mott St. Assocs.,

94 N.Y.2d 740 (2000) ...................................................................................................... passim
Badr v. Hogan,
75 N.Y.2d 629 (1990) ..............................................................................................................21
Baron v. Kings-Suffolk Realty Corp.,

4 Misc. 2d 587 (Sup. Ct. New York Cty. 1957) ......................................................................23
Belove v. Chirichella,
12 Misc. 3d 1180(A) (Sup. Ct. Suffolk Cty. 2006)..................................................................14
Benzenberg v. Telecom Plus of Upstate New York, Inc.,

119 A.D.2d 717 (2d Dep’t 1986) ...............................................................................................6
Bigelow-Sanford, Inc. v. Specialized Commercial Floors of Rochester, Inc.,

77 A.D.2d 464 (4th Dep’t 1980) ..............................................................................................10
Biro v. Conde Nast,

963 F. Supp. 2d 255 (S.D.N.Y. 2013)......................................................................................19
Bonadio v N.Y. Univ.,

129 A.D.3d 602 (1st Dep’t 2015) ............................................................................................19
Matter of Brandon’s Estate,

55 N.Y.2d 206 (1982) ....................................................................................................5, 14, 19
Carter Clark v. Random House, Inc.,

2002 WL 31748573 (Sup. Ct. New York Cty. Dec. 2, 2002) ..................................................25
Cheney v. U.S. Dist. Court for D.C.,

542 U.S. 367 (2004) .................................................................................................................25
Clinton v. Jones,
520 U.S. 681 (1997) .............................................................................................................5, 25
ii
3 of 34
Coopersmith v. Gold,
223 A.D.2d 572 (2d Dep’t 1997) ...................................................................................4, 12, 15
Coopersmith v. Gold,
89 N.Y.2d 957 (1997) ...................................................................................................... passim
Coventry Real Estate Advisors, L.L.C. v. Developers Diversified Realty Corp.,

85 A.D.3d 450 (1st Dep’t 2011) ..............................................................................................22
Crane v. New York World Telegram Corp.,

308 N.Y. 470 (1955) ............................................................................................................9, 20
Crazytown Furniture, Inc. v. Brooklyn Union Gas Co.,

150 A.D.2d 420 (2d Dep’t 1989) ...........................................................................................5, 8
Crow-Crimmins-Wolff & Munier v. Westchester Cty.,

126 A.D.2d 696 (2d Dep’t 1987) .............................................................................................10
Crowe v. Kelly,
38 A.D.3d 435 (1st Dep’t 2007) ..............................................................................................22
Doe v. Bronx Preparatory Charter Sch.,

160 A.D.3d 591 (1st Dep’t 2018) ............................................................................................11
Fazio v. Fed. Exp. Corp.,

272 A.D.2d 259 (1st Dep’t 2000) ............................................................................................23
Feeley v. Midas Properties, Inc.,

168 A.D.2d 416 (2d Dep’t 1990) .............................................................................................24
Forman v. Henkin,
30 N.Y.3d 656 (2018) ..............................................................................................................24
Fulani v. New York Times Co.,

260 A.D.2d 215 (1st Dep’t 1999) ..............................................................................................9
Genger v. Genger,
2015 WL 327166 (Sup. Ct. New York Cty. Jan. 15, 2015) .....................................................23
Greenberg v. Spitzer,
155 A.D.3d 27 (2d Dep’t 2017) .................................................................................................9
Greene v. Aberle,
150 Misc.2d 306 (Sup. Ct. Suffolk Cty 1991) ...............................................................7, 14, 24
Hudson v. Rolleri,
78 A.D.2d 539 (2d Dep’t 1980) .................................................................................................7
iii
4 of 34
Interstate Cigar Co. v. I. B. I. Sec. Serv., Inc.,

105 Misc. 2d 179 (Sup. Ct. Nassau Cty. 1980)........................................................................23
Jones v. Maples,
257 A.D.2d 53 (1st Dep’t 1999) ..............................................................................................24
Josphe v. Dermatology Assocs. of Rochester, P.C.,

52 Misc. 3d 528 (Sup. Ct. Monroe Cty. 2016) ........................................................................12
Lawrence v. Miller,
48 A.D.3d 1, 8 (1st Dep’t 2007) ..............................................................................................18
Lipin v. Bender,
84 N.Y.2d 562 (1994) ............................................................................................................2, 6
Lopez v. Huntington Autohaus Ltd.,

150 A.D.2d 351 (2d Dep’t 1989) ...............................................................................................6
Lopez v. Univision Commc’ns, Inc.,

45 F. Supp. 2d 348 (S.D.N.Y. 1999)..........................................................................................9
Mahoney v. Adirondack Pub. Co.,

71 N.Y.2d 31 (1987) ................................................................................................................19
Manzo v. Westchester Rockland Newspapers, Inc.,

106 A.D.2d 492 (2d Dep’t 1984) .............................................................................................20
Matos v. City of New York,

78 A.D.2d 834 (1st Dep’t 1980) ..............................................................................................11
Mazella v. Beals,
27 N.Y.3d 694 (2016) ............................................................................................12, 13, 15, 21
McCarthy v. Klein,
238 A.D.2d 552 (2d Dep’t 1997) .........................................................................................7, 14
In re N.Y. County Data Entry Worker Prod. Liab. Litig.,

162 Misc.2d 263 (Sup. Ct. New York Cty. 1994) ...................................................................11
Neuschatz v. Societe Generale,

176 A.D.2d 134 (1st Dep’t 1991) .................................................................................... passim
Optic Plus Enterprises, Ltd. v. Bausch & Lomb Inc.,

35 A.D.3d 1263 (2d Dep’t 2006) .............................................................................................25
People v. Alvino,
71 N.Y.2d 233 (1987) ..............................................................................................................21
iv
5 of 34
People v. Bagarozy,
132 A.D.2d 225 (1st Dep’t 1987) ............................................................................................19
People v. Brewer,
28 N.Y.3d 271 (2016) ..................................................................................................16, 17, 18
People v. Buskey,
45 A.D.3d 1170 (3d Dep’t 2007) .............................................................................................15
People v. Clark,
29 A.D.3d 918 (2d Dep’t 2006) ...............................................................................................12
People v. Colas,
206 A.D.2d 183 (1st Dep’t 1994) ............................................................................................22
People v. Condon,
26 N.Y.2d 139 (1970) ........................................................................................................16, 17
People v. Fiore,
34 N.Y.2d 81 (1974) ..........................................................................................................15, 16
People v. Greer,
42 N.Y.2d 170 (1977) ..............................................................................................................22
People v. Harris,
150 A.D.2d 723 (2d Dep’t 1989) .............................................................................................21
People v. Haynes,
35 Misc. 3d 1225(A) (Crim. Ct. Kings Cty. 2012) ..................................................................20
People v. Hudy,
73 N.Y.2d 40 (1988) ................................................................................................................13
People v. Johnson,
114 A.D.2d 210 (1st Dep’t 1986) ............................................................................................17
People v. Lewis,
69 N.Y.2d 321 (1987) ..............................................................................................................14
People v. Pippin,
67 A.D.2d 413 (1st Dep’t 1979) ........................................................................................11, 22
People v. Ridenhour,
153 A.D.3d 942 (2d Dep’t 2017) .............................................................................................22
People v. Smith,
39 Misc. 3d 20 (2d Dep’t 2013) ...............................................................................................22
6 of 34
People v. Terence McCray,

102 A.D.3d 1000 (3d Dep’t 2013) ...........................................................................................20
People v. Vargas,
88 N.Y.2d 856 (1996) ....................................................................................................5, 13, 21
People v. Ward,
141 A.D.3d 853 (3d Dep’t 2016) .......................................................................................14, 17
Perez v. Fleischer,
122 A.D.3d 1157 (3d Dep’t 2014) ...........................................................................................24
Polygram Holding, Inc. v. Cafaro,

42 A.D.3d 339 (1st Dep’t 2007) ..............................................................................................22
Rivera v. NYP Holdings, Inc.,

31 Misc. 3d 1223(A) (Sup. Ct. N.Y. Cty. 2011) ......................................................................10
Rivera v. NYP Holdings Inc.,

63 A.D.3d 469 (1st Dep’t 2009) ......................................................................................8, 9, 10
Rosso v. Beer Garden, Inc.,

12 A.D.3d 152 (1st Dep’t 2004) ..............................................................................................13
Seaman v. Wyckoff Heights Med. Ctr., Inc.,

8 Misc. 3d 628 (Sup. Ct. Nassau Cty. 2005)............................................................................12
Steinberg v. Newspaper Enterprises, Inc.,

5 A.D.2d 686 (2d Dep’t 1957) .............................................................................................9, 20
Stephen-Leedom Carpet Co. v. Arkwright-Boston Mfrs. Mut. Ins. Co.,

101 A.D.2d 574 (1st Dep’t 1984) ............................................................................................24
United States v. Colon,

880 F.2d 650 (2d Cir. 1989).....................................................................................................20
United States v. Cushing,

2002 WL 1339101 (S.D.N.Y. June 18, 2002) .........................................................................20
Van Epps v. County of Albany,

184 Misc.2d 159, 172 (Sup. Ct. Albany Cty 2000) .................................................................24
In re Wiesner,
94 A.D.3d 167 (1st Dep’t 2012) ........................................................................................12, 13
Wind v. Eli Lilly & Co.,

164 A.D.2d 885 (2d Dep’t 1990) .............................................................................................12
vi
7 of 34
Zervos v. Trump,
59 Misc. 3d 790 (Sup. Ct. New York Cty 2018) .....................................................................25
Zohar v. Hair Club for Men Ltd.,

200 A.D.2d 453 (1st Dep’t 1994) ............................................................................................14
Statutes and Other Authorities
CPLR 3101(a) ..............................................................................................................................2, 8
CPLR 3103(a) ..................................................................................................................................6
Prince, Richardson on Evidence § 4-615 (11th ed. 1995) .............................................................20
U.S. Const. Art. VI, cl. 2 ..................................................................................................................1
vii
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Defendant President Donald J. Trump, subject to and reserving all rights to his immunity,
under the Supremacy Clause of the United States Constitution, Article VI, cl. 2, as a sitting
United States President from being sued in a state court while serving as President, respectfully
submits this memorandum of law in opposition to plaintiff’s motion to compel and in response to
plaintiff’s memorandum of law (“Mem.”) in support of the motion.1
PRELIMINARY STATEMENT
In this case, plaintiff asserts a single claim, a defamation claim, allegedly arising from
defendant’s denials of plaintiff’s accusations against defendant -- all during his heated
presidential political campaign -- about an alleged incident almost ten years earlier. (Comp.
¶¶ 50, 55, 77.) By her motion, plaintiff seeks far-reaching disclosure -- far afield from any
legitimate issues in this case -- concerning other accusations. However, plaintiff seeks this
disclosure, as her memorandum of law in support of her motion makes clear and her former
counsel openly bragged about,2 not to seek evidence for her defamation claim or to “sharpen[en]
the issues” for trial (Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 747 (2000)), but to
harass and distract President Trump from his official duties and “turn[] the fact-finding process
1
Submitted herewith in opposition to the motion is the affirmation of Marc E. Kasowitz, dated
September 14, 2018 (“Kasowitz Aff.”) and the exhibits thereto (“Ex.”).
2
Ex. 1 (referring to this lawsuit as the “answer” plaintiff’s then-counsel, Gloria Allred, provided
for herself to President Trump’s election); Ex. 2 at 1 (Ms. Allred stating “I’ll Hunt Trump into
the White House.”); Ex. 3 at 1 (noting references made by Ms. Allred during press conference
regarding the potential for deposing Trump); Ex. 4 at 3 (Ms. Allred stating “I’m sure Congress
would be interested” in President Trump’s deposition testimony); Ex. 5 at 2; Ex. 6 at 16 (“Sitting
in depositions as [host Lawrence O’Donnell] just said, with all of the people that he’s sued. I
mean, how is he going to deal with any major crisis of our nation if there is one? If he’s sitting
in a deposition and trying to defend the lawsuits which by the way might be filed against him.”);
Ex. 7 at 7, 8 (Ms. Allred noting that she found President Trump’s victory “very painful”); Ex. 8
at 11 (stating the “lawsuit against then President Clinton had consequences for him. This lawsuit
will have consequences . . . for . . . President Trump”); Ex. 9 at 2 (Ms. Allred discussing her
interest in seeking raw footage from The Apprentice prior to filing of this action).
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into a series of mini trials” (id.). The fishing-expedition disclosure plaintiff seeks here has
nothing to do with her defamation claim, and her motion should be denied.
Plaintiff argues that she is entitled to broad, unlimited disclosure about other women’s
accusations, because she claims some of them were the subject of defendant’s statements at issue
in this case (Mem. 6-8). That is not so. Plaintiff does not and cannot show that the disclosure
she seeks is “material and necessary” (CPLR 3101(a)) to her claim that she was defamed. Nor
can she show, as she must, that her request for this disclosure outweighs the “burden,”
“confusion and delay,” and “unfettered litigation” from “the fact-finding process [turning] into a
series of mini-trials” -- that must be balanced against plaintiff’s need for the disclosure, Andon,
94 N.Y.2d at 746-47. See also Lipin v. Bender, 84 N.Y.2d 562, 570 (1994) (unreasonable
disclosure and burden on “any person or the court” not permitted).
Defendant’s truth defense -- consistent with New York defamation law -- is focused on
whether the statements made about plaintiff are true. Thus, the statements at issue, insofar as
they pertain to other alleged accusers -- none of whom are specifically identified in the
statements -- could not have injured plaintiff and are irrelevant to and not discoverable in
connection with her claim. Indeed, it is telling that virtually none of the women about whom
plaintiff seeks disclosure have brought their own action, and the one who has a pending action is
fully equipped to seek disclosure in her own case. Plaintiff’s only purported basis for seeking
this irrelevant information is to improperly attempt to show that defendant has a propensity to act
in a similar manner here -- evidence of which is not admissible under any theory in this case and
therefore is not discoverable.
Plaintiff also argues that she is entitled to disclosure regarding other alleged accusers
because it may lead to the discovery of admissible, so-called prior bad acts evidence. (Mem. 13-
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14.) However, the information plaintiff seeks concerning prior unfounded accusations of
inappropriate behavior (Wang Aff. Ex. 5 Req. Nos 17-19) falls squarely within what the Court of
Appeals has recognized to be inadmissible and highly prejudicial collateral evidence that
improperly attempts to prove a defendant has a character or propensity to commit the act in
question on the grounds that the defendant purportedly performed a similar act on a different
occasion.
The Court of Appeals’ holding in Coopersmith v. Gold, 89 N.Y.2d 957, 959 (1997) is
dispositive on this issue. There, the court held that the plaintiff -- who was seeking to prove that
the defendant, a psychiatrist, engaged in an improper sexual relationship with her -- could not
admit evidence of defendant’s improper relationships with other patients. Because evidence of
other actual relationships are inadmissible, as Coopersmith establishes, then, a fortiori, evidence
of denials of accusations of prior relationships is also inadmissible. And further, because the
information plaintiff seeks is itself inadmissible propensity evidence and will not lead to the
disclosure of admissible evidence, disclosure is improper, which, contrary to plaintiff’s
assertions (Mem. 8-9), New York courts have repeatedly recognized. See, e.g., Neuschatz v.
Societe Generale, 176 A.D.2d 134 (1st Dep’t 1991) (disclosure seeking “information concerning
all formal and informal complaints of sexual harassment or discrimination” held to be improper
in sexual harassment case).
In an attempt to overcome this bar, plaintiff claims the disclosure she seeks falls within
the common scheme or plan and state of mind exceptions to the general rule barring propensity
evidence. First, plaintiff claims the irrelevant information about other accusers is admissible
under the common scheme or plan exception to demonstrate a purported pattern of behavior and
a modus operandi. (Mem. 8-9.) However, where the common scheme or plan exception applies,
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it applies to show only that the event at issue was part of a single transaction or “preconcerted
general plan” along with the prior acts, Coopersmith v. Gold, 223 A.D.2d 572, 573 (2d Dep’t
1997), aff’d, 89 N.Y.2d 957 (1997) -- something even plaintiff does not (and cannot) allege here.
Furthermore, plaintiff cannot claim defendant has a modus operandi, which she improperly
conflates with the common scheme or plan exception, because that exception only applies where
the identity of the defendant is at issue and even then only where the pattern alleged is so unique
that proof that defendant committed a prior act would establish that only he could have
committed the act in question. However, defendant’s identity is not in dispute here, and the
pattern of conduct that plaintiff alleges is, of course, far from unique.
Second, plaintiff claims that the irrelevant disclosure she seeks regarding other women is
admissible under the intent exception to show that defendant had an alleged intent to “touch or
grope” plaintiff (Mem. 9) and that defendant acted with malice when he denied her accusations
(id. 12). However, courts admit evidence pursuant to the intent exception to the rule barring
evidence of prior acts, only where there is no dispute that an act occurred, but there is a dispute
over whether the act was done intentionally versus mistakenly or negligently. Here, it is
undisputed that defendant denies that the underlying incident occurred and also denies that he
made any false or defamatory statements. Plaintiff’s fishing expedition is simply a masked
attempt to obtain inadmissible propensity-related evidence that, if defendant maliciously made
statements in the past (which he did not), then he did so in this case. Indeed, under New York
law, plaintiff is not permitted to try to prove that defendant allegedly acted with malice in
making the statements at issue here by reference to statements that do not defame her.
Next, plaintiff claims that she is entitled to disclosure to challenge defendant’s credibility.
However, again, plaintiff is not permitted to challenge credibility through propensity evidence.
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Thus, where, as here, there are “two starkly contrasting scenarios [of an alleged sexual
encounter] . . . with only credibility in issue,” the Court of Appeals refuses to allow alleged
“prior misconduct evidence” for that purpose. See, e.g., People v. Vargas, 88 N.Y.2d 856, 858
(1996); Coopersmith, 89 N.Y.2d at 959.3
Finally, the requested disclosure is in any event improper under New York law, because
it would lead -- indeed, it is calculated to lead -- to unfettered litigation, distraction, and delay
over, at best, collateral issues and the harassment of defendant. This concern is particularly acute
here, where the requested disclosure is directed to the President of the United States, whose
office and duties are entitled to “high respect [as] a matter that should inform the conduct of the
entire proceeding, including the . . . scope of discovery.” Clinton v. Jones, 520 U.S. 681, 707
(1997). Thus, plaintiff’s far-afield fishing expedition disclosure requests should be denied.
ARGUMENT
The party seeking disclosure must demonstrate that the information sought is “material
and necessary” to the prosecution or defense of an action, with the test being “one of usefulness
and reason.” Andon, 94 N.Y.2d at 746-47. “[U]nsubstantiated bare allegations of relevancy are
insufficient to establish the factual predicate regarding relevancy.” Crazytown Furniture, Inc. v.
Brooklyn Union Gas Co., 150 A.D.2d 420, 421 (2d Dep’t 1989). Courts “must always” consider
competing interests -- including the “burden,” “confusion and delay” and “unfettered litigation”
which would result from “the fact-finding process [turning] into a series of mini-trials” -- in
weighing the propriety of the requests. Andon, 94 N.Y.2d at 746-47. Moreover, courts have
3
The “general rule of the evidence . . . that it is improper to prove that a person did an act on a
particular occasion by showing that he did a similar act on a different, unrelated occasion,”
subject to “[c]ertain exceptions . . . where the evidence offered has some relevancy to the issues
presented other than mere similarity,” is “applicable in both civil and criminal cases.” Matter of
Brandon’s Estate, 55 N.Y.2d 206, 211 (1982).
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“broad discretion” under CPLR 3103(a), to prevent prejudicial and abusive disclosure. Lipin, 84
N.Y.2d at 570.
Where “demands . . . are unduly burdensome or lack specificity . . . vacatur of the
discovery demand is the appropriate remedy rather than its pruning.” Lopez v. Huntington
Autohaus Ltd., 150 A.D.2d 351, 352 (2d Dep’t 1989) (striking interrogatories that “seek[]
unlimited information as to all inquiries or investigations”) (citations and internal quotations
omitted); see also Benzenberg v. Telecom Plus of Upstate New York, Inc., 119 A.D.2d 717 (2d
Dep’t 1986) (striking unduly burdensome interrogatories and document requests).
I. THE REQUEST IS NOT RELEVANT TO PLAINTIFF’S DEFAMATION CLAIM.
Plaintiff’s document and interrogatory requests (“Request”) seek overly broad disclosure
that has nothing to do with her defamation claim, including information concerning (1) “any
woman” who accused defendant of supposed inappropriate behavior (Wang Aff. Ex. 5 Req. Nos
17-19) at any time, including purportedly 21 women identified in Request No. 18 (Interrogatory
No. 8 and Request Nos. 16, 18); (2) whether or how defendant responded to “any accuser’s”
public statement about defendant’s purported inappropriate conduct (Interrogatory No. 11 and
Request No. 19); (3) “any efforts” to collect information about, influence or impact any woman,
directly or indirectly, who made accusations about defendant’s alleged inappropriate conduct
(Interrogatory No. 12 and Request No. 20); (4) any payments made in connection with “any
woman” who accused defendant of inappropriate or sexual conduct (Interrogatory Nos. 15-16
and Request Nos. 21-22); and (5) how defendant purportedly describes touching or grabbing any
female in a sexual manner, purportedly bringing “females to [his] bungalow,” or purportedly
“keep[ing] secret or hid[ing] from others any inappropriate or romantic behavior” (Request No.
17).
Plaintiff has not cited -- and cannot cite -- a single defamation case in which a New York
14 of 34
court has allowed such broad, unlimited disclosure. In fact, New York courts have consistently
denied such irrelevant disclosure of issues that have nothing to do with the underlying claim in
the case.
Thus, in Neuschatz, 176 A.D.2d 134, the First Department held that, in a sexual
harassment suit, requests for “information concerning all formal and informal complaints of
sexual harassment or discrimination by female employees of defendant . . . without limit as to
time, nature, or geographical location” should be denied as not “material and necessary,” because
there was no “need for such extensive information” and it would not “assist preparation for trial
by sharpening the issues.” Id. at 134-35 (internal quotations omitted). See also McCarthy v.
Klein, 238 A.D.2d 552, 553 (2d Dep’t 1997) (denying disclosure, in a sexual harassment and
discrimination suit, “relating to allegations of sexual abuse, sexual harassment, or sexual
misconduct made by former patients, employees, or ‘each and every person’ against the
defendant,” because plaintiff had not demonstrated “the relevancy of other alleged acts of sexual
misconduct by the defendant.”) (citing Coopersmith, 223 A.D.2d 572).4
Here, plaintiff does not and cannot show that information related to any women who has
ever accused defendant of misconduct at any time is “material and necessary” to her defamation
action. Andon, 94 N.Y.2d at 746-47; CPLR 3101(a).
4
Greene v. Aberle, 150 Misc.2d 306 (Sup. Ct. Suffolk Cty. 1991) is also instructive. There, the
plaintiff brought a defamation claim based on the defendant’s alleged false accusations against
him. Id. at 307. While the central issue was whether the disputed incident occurred, the court
explained that the plaintiff’s requests concerning the defendant’s history “in no way is related to
any of the elements plaintiff must prove” in a defamation action. Id. at 308. Moreover, “[n]ot
only [was] the information sought not material and necessary to the prosecution of plaintiff’s
claims, [but] the Court [found] such information ha[d] not been sought in good faith” because
“Plaintiff’s attempt to obtain such information [was] tantamount to judicial harassment.” Id. at
308-09. See also Hudson v. Rolleri, 78 A.D.2d 539, 540 (2d Dep’t 1980) (in case concerning
shooting by minor with bb gun, “we find no . . . relevance to information pertaining to other B-B
guns allegedly purchased by [defendant’s] . . . store”).
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Plaintiff claims that one of defendant’s defenses is that portions of his statements not at
issue are true -- including his statement that “[t]hat is not who I am as a person, and is not how
I’ve conducted my life” and his denial of accusations by supposedly twelve other women5 (none
of whom are specifically identified in the statements) -- and therefore that she is entitled to
disclosure regarding other women who at any point complained that defendant acted in a similar
manner in order to rebut his truth defense. (Mem. 6-7.) In seeking such broad, unlimited
disclosure, plaintiff erroneously argues that “[i]n defamation actions, courts require disclosure
not only of the specific assertions that give rise to the defamation claim, but” also “assertions in
[the same] articles that are not directly challenged in plaintiff’s complaint,” Rivera v. NYP
Holdings Inc., 63 A.D.3d 469, 469 (1st Dep’t 2009). (Mem. 6 (internal quotations omitted).)
Plaintiff is wrong on all counts.
First, plaintiff is not entitled to disclosure concerning language contained within the
statements that has nothing to do with her defamation claim, which concerns only whether a
statement about plaintiff has harmed her reputation. In determining whether a statement is
actionable, courts focus on the truth or falsity of the portion of the statement that has a “sting” on
the plaintiff’s character, not on “innocuous” portions that do not defame plaintiff. Abell v.
Cornwall Indus. Corp., 241 N.Y. 327, 332 (1925); see also Air Wisconsin Airlines Corp. v.
Hoeper, 571 U.S. 237, 247 (2014) (“[m]inor inaccuracies do not amount to falsity so long as ‘the
substance, the gist, the sting, of the libelous charge be justified.’”) (citations omitted); Crane v.
5
While plaintiff claims that somehow she knows the identity of the women purportedly
referenced in the statements, even though he did not specifically name anyone, she also seeks
discovery from a broader group of twenty-one women, and never once explains in her motion
why nine of the women identified in Request No. 18 are relevant to her claim. See Crazytown
Furniture, Inc. v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421 (2d Dep’t 1989)
(“[U]nsubstantiated bare allegations of relevancy are insufficient to establish the factual
predicate regarding relevancy.”).
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New York World Telegram Corp., 308 N.Y. 470, 477 (1955) (facts unrelated to the truth of the
statement about plaintiff at issue are irrelevant to partial truth defense); Lopez v. Univision
Commc’ns, Inc., 45 F. Supp. 2d 348, 357, 359 (S.D.N.Y. 1999) (holding that under New York
defamation law, “the appropriate focus is on . . . the sting of the challenged statement” on
plaintiff’s reputation, such that where “[p]laintiff’s reputation was harmed, if at all, by the
allegation that MGH and Harvard, with which he claimed a connection, had no record of him[,]”
the falsity of a portion of the article that “is not what stung” is irrelevant).6 Accordingly,
defendant’s truth defense is focused on whether the statements that were made about plaintiff
were true and plaintiff is not entitled to disclosure as to irrelevant portions of the statements
concerning the accusations of other women, which do not “sting” her reputation. Those
statements, insofar as they pertain to other alleged accusers, are irrelevant to and not
discoverable in connection with plaintiff’s claim.
Second, plaintiff claims that Rivera, 63 A.D.3d 469, establishes that she is entitled to
disclosure concerning “‘assertions in [the same] articles that are not directly challenged in
plaintiff’s complaint.’” (Mem. 6.) However, in Rivera, the disclosure that the defendant sought
all concerned the plaintiff and all was relevant to defendant’s claim that the article in question
was substantially true. There, a judge alleged that he was defamed by publications that claimed,
among other things, that he had paid a bribe, had received partial immunity in exchange for
6
See also Fulani v. New York Times Co., 260 A.D.2d 215, 216 (1st Dep’t 1999) (whether
statement is defamatory turns on whether the “sting” of the statement on plaintiff is true);
Steinberg v. Newspaper Enterprises, Inc., 5 A.D.2d 686, 686 (2d Dep’t 1957) (examination as to
the truth of a statement not at issue in defamation case but contained in the same article as
defamatory statement was properly prohibited); Greenberg v. Spitzer, 155 A.D.3d 27, 51-52 (2d
Dep’t 2017) (rejecting plaintiff’s attempt to establish that a statement was false by relying on
portion of the article concerning a third-party, because it “cannot be defamatory as to
[plaintiff].”)
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grand jury testimony, and was being investigated by the Commission on Judicial Conduct
(“CJC”) -- some of which the plaintiff did not contest. See Rivera v. NYP Holdings, Inc., 31
Misc. 3d 1223(A), at *2, *10 (Sup. Ct. N.Y. Cty. 2011) (on remand). The First Department
allowed the defendant to obtain information concerning the plaintiff’s grand jury testimony, his
proceedings before the CJC, and his arrest record (Rivera, 63 A.D.3d at 469-70) -- all of which
related to the defendant’s defense of whether the publications’ overall “sting” on the plaintiff’s
reputation as a corrupt official was substantially true.
Furthermore, on remand, this Court carefully parsed the out-of-context sentence upon
which plaintiff here relies -- that a defendant may obtain disclosure concerning “assertions . . .
that are not directly challenged in plaintiff’s complaint” to prove the defendant’s own substantial
truth defense -- and called it an “uncited heretofore non-existent precept,” that was “unsupported
by caselaw.” This Court ruled that this sentence could only be interpreted narrowly, because
“[t]here is a tremendous gap between requiring that an entire article be read to determine the
context in which one allegedly defamatory word was used and permitting [such] unfettered
disclosure . . . .” Rivera, 31 Misc. 3d 1223(A) at * 10, *11.
Third, plaintiff has not demonstrated her entitlement to the other irrelevant information
she seeks about other accusers, including alleged payments or alleged attempts to influence
them. Settlements are entered into for a variety of reasons, including to avoid bad publicity, and
in no way establish that the underlying acts actually occurred. See Bigelow-Sanford, Inc. v.
Specialized Commercial Floors of Rochester, Inc., 77 A.D.2d 464, 466 (4th Dep’t 1980)
(“[C]ompromise or a settlement may not be regarded as evidence of … liability, or as an
admission”) (citation omitted). Thus, discovery concerning settlement payments is improper.
See Crow-Crimmins-Wolff & Munier v. Westchester Cty., 126 A.D.2d 696, 697 (2d Dep’t 1987)
10
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(“Actions taken and observations made for the stated purpose of arriving at a settlement
agreement . . . which actions would not have been accomplished except in a mutual attempt to
reach a settlement, should . . . generally be protected [from discovery] by the . . . public policy of
encouraging attempts at settlement.”); In re N.Y. County Data Entry Worker Prod. Liab. Litig.,
162 Misc.2d 263, 268 (Sup. Ct. N.Y. Cty. 1994) (citing the “compelling need for privacy” in
holding that nonsettling defendants were not entitled to discover the terms of confidential
settlement agreements with codefendants), aff’d, 222 A.D.2d 381, 635 (1st Dep’t 1995).
Similarly, because plaintiff’s Request concerning any attempts to “seek information”
about other accusers has no bearing on whether defendant made allegedly defamatory statements
concerning her, it should be denied. See Neuschatz, 176 A.D.2d at 134-35.
Finally, the time period from which plaintiff seeks information is not material and
necessary. The Request seeks information from either a 13-year time period (from 2005 through
present) (see, e.g., Wang Aff. Ex. 5 at page 7) (Request Nos. 12, 19) or information from “any
time,” with no limitation at all (Request Nos. 12, 19). However, the only time periods with any
possible relevance to this action are between November 2007 and February 2008, when the
events at issue allegedly occurred (Comp. ¶¶ 3, 22-34), and October 2016, when the publications
occurred (Comp. ¶¶ 11, 55-74). Because her Request seeks information far beyond either of
those periods, it is improper. See Doe v. Bronx Preparatory Charter Sch., 160 A.D.3d 591, 591
(1st Dep’t 2018) (demands for access to defendant’s social media accounts for five years prior to
incident at issue, and to cell phone records for two years prior, were “overbroad and not
reasonably tailored to obtain discovery relevant to the issues in the case”).7
7
See also Matos v. City of New York, 78 A.D.2d 834, 834 (1st Dep’t 1980) (disclosure of
complaints concerning allegedly defective product five years prior to accident would be unduly
“burdensome and oppressive”); People v. Pippin, 67 A.D.2d 413, 418 (1st Dep’t 1979) (12-year
11
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II. PLAINTIFF’S REQUEST FOR PROPENSITY EVIDENCE IS IMPROPER.
A. Plaintiff’s Request Will Not Lead To Admissible Evidence.
Contrary to plaintiff’s assertion (Mem. 8-10), she cannot obtain disclosure concerning
other women’s unproven accusations that defendant allegedly acted inappropriately with them,
because she seeks it to improperly suggest defendant acted in a similar way in this case and
therefore it is not admissible and will not lead to admissible evidence.8 Under established New
York law, “it is improper to prove that a person did an act on a particular occasion by showing
that he did a similar act on a different, unrelated occasion.” See Coopersmith, 223 A.D.2d at
573, aff’d 89 N.Y.2d 957. Such “propensity” evidence “lacks probative value concerning any
material factual issue” and is highly prejudicial because it “has the potential to induce the jury to
decide the case based on evidence of defendant’s character” as opposed to the issues in the case.
Mazella v. Beals, 27 N.Y.3d 694, 710 (2016). This rule has particularly strong application
where, as here, the prior acts at issue are uncharged and unproven. In re Wiesner, 94 A.D.3d
167, 186 (1st Dep’t 2012). Thus, prior similar act evidence is inadmissible under any theory of
old conviction for forgery was “sufficiently remote in time as to have no substantive effect upon
defendant’s credibility” and thus inadmissible for impeachment on cross-examination); Wind v.
Eli Lilly & Co., 164 A.D.2d 885, 887 (2d Dep’t 1990) (limiting request seeking information
concerning product packaging from twenty years to three years); Josphe v. Dermatology Assocs.
of Rochester, P.C., 52 Misc. 3d 528, 531 (Sup. Ct. Monroe Cty. 2016) (limiting overly broad
burdensome requests seeking information “from the beginning of time”).
8
Plaintiff claims disclosure would be proper even if ultimately the information obtained would
not be allowed at trial (Mem. 5, 13); however, because of the wide reporting on every aspect of
the case, disclosure would ultimately reach, and thereby improperly taint, the jury pool. See
People v. Clark, 29 A.D.3d 918, 919 (2d Dep’t 2006) (jury should not be present during hearing
on admissibility of prior bad acts); Seaman v. Wyckoff Heights Med. Ctr., Inc., 8 Misc. 3d 628,
632-33 (Sup. Ct. Nassau Cty. 2005) (“Our legal system is based upon the premise that the truth is
being sought and to that end jurors and the courts are imbued with the power to hear the facts as
they are deemed relevant and to issue a decision based solely upon those facts. To permit the
dissemination of discovery to the public prior to the commencement of a trial violates the
doctrine of fairness.”), aff’d in relevant part, 25 A.D.3d 598 (2d Dep’t 2006).
12
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the case unless it falls within one of the limited exceptions which, as explained infra, Part II.B,
do not apply here, id., and is therefore not discoverable.
Coopersmith, 89 N.Y.2d 957 is dispositive on this issue. There, the plaintiff, who
brought a malpractice claim against her psychiatrist, sought to introduce evidence of other
similar sexual relationships with patients to support her claim that he had such a relationship
with her. Id. at 958. The Court of Appeals held that the trial court properly precluded the
introduction of such evidence based on “the settled rule that evidence of prior, similar acts is
inadmissible to prove that defendant perpetrated the same act on a later, unrelated occasion.” Id.
at 959. See also Vargas, 88 N.Y.2d at 858 (finding evidence of prior sexual misconduct was
inadmissible in rape prosecution with “two starkly contrasting scenarios . . . presented” because
it could be offered for no other purpose “than to raise an inference that a defendant is of a
criminal disposition and, therefore, likely to have committed the crime charged.”).9 Because, as
Coopersmith establishes, evidence of actual prior relationships is inadmissible, a fortiori,
evidence of defendant’s denials of accusations of such relationships also must be inadmissible
and therefore not discoverable.
While plaintiff professes she is unaware of any case prohibiting disclosure of alleged
similar conduct despite allegations defendant engaged in a pattern of conduct with respect to
9
See also People v. Hudy, 73 N.Y.2d 40, 54-56 (1988) (evidence concerning an uncharged
sexual assault under similar circumstances to charged assault was inadmissible because it
“tended only to demonstrate defendant’s general criminal propensity.”), abrogated on other
grounds by Carmell v. Texas, 529 U.S. 513 (2000). Cf. Mazella, 27 N.Y.3d at 710 (evidence that
defendant negligently treated 12 other patients in a similar manner as the decedent was
inadmissible as “the type of propensity evidence that . . . has the potential to induce the jury to
decide the case based on evidence of defendant’s character.”); Rosso v. Beer Garden, Inc., 12
A.D.3d 152, 154 (1st Dep’t 2004) (recognizing New York’s “well established” law “that
evidence of a person’s acts on any particular occasion” cannot be used “to show that such person
acted in a similar fashion on a different, unrelated occasion” and finding admission of such
evidence to be sufficiently prejudicial to require a new trial.”).
13
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plaintiff and others (Mem. 8), in fact, New York courts have repeatedly denied disclosure of
prior similar acts because it does not lead to admissible evidence, as Neuschatz, Greene, and
McCarthy, discussed above, supra Part I, establish.10
B. Plaintiff Has Not Shown That Any Molineux Exception Applies.
Recognizing that the collateral disclosure she seeks is irrelevant and inadmissible
propensity-related evidence, plaintiff claims the disclosure sought will be admissible under one
of the Molineux exceptions, such as the common scheme or plan or intent exceptions. (Mem.
8.)11 It does not. However, even if the disclosure sought did fall into such exceptions -- and it
does not -- it would still be inadmissible and therefore irrelevant, because “the potential for
prejudice resulting to the defendant” far outweighs any minimal probative value. See, e.g.,
People v. Lewis, 69 N.Y.2d 321, 328 (1987) (testimony concerning prior sexual misconduct not
at issue “seriously prejudiced defendant”); see also People v. Ward, 141 A.D.3d 853, 859 (3d
Dep’t 2016) (evidence of prior sexual assault constituted prior bad act for which the “prejudice
far outweigh[ed] its probative value” even if admissible under a Molineux exception).
1. The Common Scheme Or Plan Exception Does Not Apply.
Plaintiff first argues she is entitled to information concerning “whether or how to respond
to any woman’s public statement that [he] acted inappropriately or sexually with her” or about
10
See also Zohar v. Hair Club for Men Ltd., 200 A.D.2d 453, 454 (1st Dep’t 1994)
(interrogatory requesting information concerning prior claims against defendant for alleged
violations of civil rights law or rights to privacy properly stricken as irrelevant to plaintiff’s
claim that his civil rights and rights to privacy were violated by the defendant); Belove v.
Chirichella, 12 Misc. 3d 1180(A), at *2 (Sup. Ct. Suffolk Cty. 2006) (disclosure concerning
complaints and reports of defendant’s service to intoxicated patrons was improper as propensity
evidence to show defendant improperly served decedent) (citing Coopersmith, 89 N.Y.2d 957).
11
The exceptions to the rule against the admissibility of prior similar acts evidence are when the
evidence “has some relevancy to the issues presented other than mere similarity,” such as: “(1)
motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5)
identity.” Brandon’s Estate, 55 N.Y.2d at 211.
14
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“how [Defendant purportedly] touch[es] or grab[s] any female in a sexual manner, how [he]
bring[s] females to [his] bungalow at the Beverly Hills Hotel, and/or how [he] keep[s] secret or
hide[s] from others any inappropriate sexual or sexual or romantic behavior” (Mem. 8-9; Req.
Nos. 17, 19) in an attempt to establish a “pattern” of what she claims is “unwanted sexual
conduct” and “false invitations to have dinner or a business meeting” and corroborate her story.
However, under the common scheme or plan exception, courts only admit evidence of
allegedly similar, prior acts pursuant to this exception in “exceptional circumstances,” when such
acts “support the inference that there exists a single inseparable plan encompassing both the
charged and uncharged” acts. People v. Fiore, 34 N.Y.2d 81, 84-85 (1974).
Thus, the court in Coopersmith (discussed supra, Part II.A) refused to allow the plaintiff
to introduce evidence of the defendant’s alleged sexual relationships with his former patients “in
an attempt to establish that defendant repeatedly formed sexual liaisons with his patients and that
each relationship followed the same pattern,” 89 N.Y.2d 957, 958-59 (1997). As the Second
Department had explained, “alleged similar instances, assuming they actually occurred, ‘were no
more than separate and independent transaction[s] entered into as the occasion arose and not in
pursuance of any preconcerted general plan or design,’” such that the evidence was inadmissible.
Coopersmith v. Gold, 223 A.D.2d 572, 573 (2d Dep’t 1996), aff’d, 89 N.Y.2d 957 (1997)
(internal citations omitted).12
Plaintiff does not and cannot allege in her complaint that the incident she claimed
12
See also, e.g., Mazella, 27 N.Y.3d at 710-11 (common or scheme or plan exception did not
allow admission of evidence purportedly showing that the defendant negligently treated 12 other
patients in a similar manner as the decedent); People v. Buskey, 45 A.D.3d 1170, 1173 (3d Dep’t
2007) (“Here, the evidence that defendant made advances to other girls in the same manner as
the conduct for which he was charged establishes only a ‘repetitive pattern,’ not a common
scheme or plan within the meaning of the Molineux exception.”)
15
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occurred was somehow part of a single plan encompassing the incidents others have falsely
claim occurred. (Comp. ¶ 22-34). What plaintiff is really attempting to show is that if defendant
allegedly acted one way with others, it bolsters her claim that he did the same with her.
However, this is exactly the type of propensity evidence that is inadmissible under any theory of
the case and therefore not discoverable.
To the extent that plaintiff argues that the information she seeks is to establish a
purported modus operandi of luring women in under false pretenses (Mem. 9-10), the Court of
Appeals has held that this does not fall within the common scheme or plan exception, because it
merely shows a “repetitive pattern.” Fiore, 34 N.Y.2d at 87. Evidence concerning prior bad acts
that consist of a modus operandi, is only admissible to establish a defendant’s identity where the
identity is disputed. Because defendant’s identity is not at issue, plaintiff is not entitled to
evidence regarding other accusers. See People v. Condon, 26 N.Y.2d 139, 144 (1970).
Plaintiff’s reliance on People v. Brewer, 28 N.Y.3d 271 (2016) is misplaced. There, the
court allowed into evidence defendant’s prior consensual sexual acts with adults, as non-
propensity evidence, to corroborate the testimony of two minors who were sexually abused in the
same “peculiar” manner as defendant’s consensual sexual acts with adults – performed in the
closet, while smoking crack, with his shirt pulled over his head. Id. 274-275, 277. The court
found that this was not propensity evidence in that the prior sexual acts involved consenting
adults, not minors, and further that the “probative value of the evidence was not outweighed by
the potential prejudice.” Id. at 276, 277.
In Brewer, the People were not attempting to establish that prior consensual sex with
adults had a tendency to show defendant’s propensity to have sex with a minor. However, here
the alleged prior similar acts (such as allegations of purportedly luring women to the Beverly
16
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Hills Hotel or engaging in inappropriate conduct) at issue, are being sought to establish that
defendant purportedly acted in a similar manner as plaintiff alleged in her complaint.
Moreover, also unlike in Brewer, which did not involve allegations of prior “bad” acts or
crimes but rather acts between consenting adults, plaintiff is improperly seeking to obtain highly
prejudicial information related to false accusations of sexual assault and adultery. Ward, 141
A.D.3d at 859 (evidence of prior sexual assault constituted prior bad act for which the “prejudice
far outweigh[ed] its probative value” even if admissible under a Molineux exception); see also
cases cited in supra Part II.A.
Further, in Brewer, the admissibility of the evidence turned on the “peculiar manner” of
defendant’s conduct which corroborated the victims’ accounts of their own, identical abuse,
because the peculiar nature of the acts proved that victims were “describing their own
experiences” where “[n]otably . . . the girls had never witnessed defendant’s [consensual] sexual
encounters” with adults that the People were seeking to introduce. 28 N.Y.3d at 277.
Here, on the other hand, the disclosure sought is not probative because plaintiff, by
claiming that there was a purported pattern of invitations to a hotel or dinner or “keep[ing] secret
or hid[ing] from others any inappropriate . . . behavior” (Mem. 9), does not demonstrate a pattern
that is “so unique that the mere proof that the defendant had committed a similar act would be
highly probative of the fact that he committed the one [at issue].” See Condon, 26 N.Y.2d at 144
(referring to “the identifiable characteristics of the crimes committed by the notorious ‘Jack the
Ripper’” as sufficiently unique to establish an identifiable modus operandi)); People v. Johnson,
114 A.D.2d 210, 212 (1st Dep’t 1986) (requiring “distinguishing oddities” to allow prior bad acts
evidence on modus operandi).
Moreover, many of the alleged acts that plaintiff now claims make up a pattern were
17
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public by the time that she made her accusations, so introducing evidence of them does nothing
to corroborate her story. Compare Brewer, 28 N.Y.3d at 277 (evidence of prior acts were
admissible to corroborate victims’ stories, because they had never witnessed the prior acts). For
example, it was well known that defendant frequented the Beverly Hills Hotel,13 so unfounded
accusations about purported events at the hotel would not be probative to corroborate plaintiff’s
accusations.
Plaintiff asserts that while the Court may ultimately rule that the evidence she seeks is
inadmissible because it is not sufficiently similar to the alleged behavior at issue, she “plainly is
entitled to probe this issue and develop a record to enable the Court to evaluate whether that
standard has been satisfied.” (Mem. 8.) However, this ignores, among other things, cases that
hold that she is not entitled to discover inadmissible and highly prejudicial propensity evidence
(supra II.A), and that it is plaintiff’s burden to establish a “factual predicate” for obtaining
disclosure and that she cannot engage in a “fishing expedition” to seek that predicate out.14
2. The Intent Exception Does Not Apply.
Plaintiff argues that the intent exception permits the use of prior similar act evidence for
purposes of establishing (i) defendant’s intent to “touch or grope” plaintiff “sexually rather than
in any other manner” (Mem. 9), and (ii) proving defendant acted with malice by knowingly
“mak[ing] false, defamatory statements” as opposed to “merely negligent[ly]” making such
13
See Exs. 10-13 (discussing Mr. Trump frequenting the Beverly Hills Hotel).
14
Indeed, while plaintiff could have reviewed the extensive public record concerning other
accusers and made even a passing attempt at pointing out factual predicates, she did not attempt
to do so (and should not be permitted to attempt to do so on reply (Lawrence v. Miller, 48
A.D.3d 1, 8 (1st Dep’t 2007), aff'd, 11 N.Y.3d 588 (2008)), because she cannot overcome the
basic premise that such information is irrelevant.
18
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statements (id. 12). However, the intent exception only applies in the “class of cases” where “the
act charged is assumed as done, and the mind asks only for something that will negat[e] innocent
intent.” Brandon’s Estate, 55 N.Y.2d at 213 (internal quotations omitted). Because defendant
denies the acts at issue occurred -- both the purported underlying incident and that he made false
statements about it -- this exception cannot apply here. See People v. Bagarozy, 132 A.D.2d 225,
236 (1st Dep’t 1987) (intent exception applies only “where there is no challenge to the
occurrence of the physical contact itself, but the intent of the actor is at issue because the nature
of the contact is subject to varying interpretations.”) (emphasis added).15
Plaintiff’s first argument -- that the intent exception applies to show that defendant
allegedly touched plaintiff “sexually rather than in any other matter” (Mem. 9) -- fails for the
additional reason that the relevant inquiry of defamation is not defendant’s intent when the act
occurred but when making the allegedly false statement at issue (which, in any event, to
constitute defamation, must consist of objective fact rather than subjective statements of intent).
Plaintiff’s second argument, that allegedly false statements concerning others can be
introduced to show that defendant acted with malice when he denied plaintiff’s accusations, as
opposed to denying them because of “an allegedly faulty memory” (Mem. 12), also fails. As an
initial matter, New York cases uniformly hold that malice can only be established by examining
the portions of the statements that defame plaintiff. It cannot be established by showing that
defendant’s other statements, or parts of statements, which do not specifically relate to plaintiff,
15
Thus, in Bonadio v N.Y. Univ., 129 A.D.3d 602 (1st Dep’t 2015), cited by plaintiff (Mem. 8-
9), the intent exception applied because, unlike here, there was a dispute over whether defendant
placing plaintiff’s hand on his upper leg was innocent or done with intent to harass, not whether
the act occurred or not, and no particular intent could be inferred from the nature of the act itself.
19
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were false.16 Accordingly, any statements that defendant made concerning other women are not
relevant to the malice determination and disclosure concerning them is improper.17
Further, plaintiff’s fishing expedition must also be denied because it is simply another
attempt to obtain inadmissible propensity evidence that defendant allegedly made statements
with malice in this case because he allegedly did so with other statements. See United States v.
Cushing, 2002 WL 1339101, at *3 (S.D.N.Y. June 18, 2002) (evidence that defendant “lied to a
separate investigatory authority . . . makes it no more likely that he knew he made [the]
untruthful statement [at issue]” because it “would only tend to demonstrate [his] willingness to
lie to an investigatory authority” which is precluded as improper propensity evidence); People v.
Haynes, 35 Misc. 3d 1225(A), (Crim. Ct. Kings Cty. 2012) (finding that where defendant “has
only stated that he cannot remember if the actions occurred[,] . . . not . . . that the touch was
16
See Mahoney v. Adirondack Pub. Co., 71 N.Y.2d 31, 39-41 (1987) (limiting scope of inquiry
in determination of malice to defamatory portions concerning plaintiff, because “[t]hat the story
was false and defamatory . . . is not enough to sustain plaintiff’s claim,” rather, the analysis turns
on “direct evidence that [the defendant]…knew or suspected” that the specific false and
defamatory statement concerning the plaintiff was false at the time of publication.); Biro v.
Conde Nast, 963 F. Supp. 2d 255, 288, n. 21. (S.D.N.Y. 2013), aff’d, 807 F.3d 541 (2d Cir.
2015), and aff’d, 622 F. App’x 67 (2d Cir. 2015) (attempt to prove malice by challenging non-
defamatory portion of allegedly defamatory article was improper where it “does not in any way
speak to the allegedly defamatory conduct at issue.”); Prince, Richardson on Evidence at § 4-615
(11th ed. 1995) (“evidence of utterances of a different nature is not allowed to show malice. Such
evidence is excluded on the ground of unfair surprise and confusion of issues.”) (citing Root v.
Lowndes, 6 Hill (NY) 518, 519 (1844) (In proving malice, courts may not admit evidence of
statements that are not at issue so “the court and jury will [not] be led off from the point in
controversy as presented by the pleadings, into the trial of an indefinite number of collateral
issues.”).
17
See Crane v. New York World Telegram Corp., 308 N.Y. 470, 477 (1955) (facts unrelated to
the truth of the statement about plaintiff at issue are irrelevant to issue of defendant’s malice);
Manzo v. Westchester Rockland Newspapers, Inc., 106 A.D.2d 492, 493 (2d Dep’t
1984)(disclosure requests concerning the “truth of an independent and unconnected defamatory
charge in the published article upon which plaintiff did not bring suit…were properly stricken”);
Steinberg v. Newspaper Enterprises, Inc., 5 A.D.2d 686, 686 (2d Dep’t 1957) (examination as to
the truth of a statement not at issue contained in the same article as defamatory statement was
properly prohibited).
20
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accidental, which would call his intent into question,” evidence of prior bad acts was
inadmissible and “[f]urthermore, [that] intent may be inferred from the nature of the crime.”).18
Indeed, it is telling that plaintiff has not cited a single New York case allowing evidence relating
to statements concerning non-parties to show malice for the statement at issue and defendant has
also not located any such case.19
III. THE REQUEST IS IMPROPER FOR CREDIBILITY/IMPEACHMENT
Plaintiff also claims that the information sought about other accusers is relevant for
“shedding light on Defendant’s credibility.” (Mem. 13-14.) However, “[c]ollateral matters
relevant only to credibility are properly excluded because they distract the jury from the central
issues in the case, and bear the risk of prejudicing the jury based on character and reputation.”
Mazella v. Beals, 27 N.Y.3d 694, 711 (2016).20 Moreover, the Court of Appeals has repeatedly
held that propensity-related evidence, such as the disclosure sought here, cannot be used at trial
to challenge a party’s credibility. See Vargas, 88 N.Y.2d at 858; Coopersmith, 89 N.Y.2d at
958-59 (where “critical issue for the jury was whose version of the . . . relationship was truthful,
which set the stage for a credibility contest between the parties,” evidence of similar, prior
18
See also People v. Terence McCray, 102 A.D.3d 1000, 1006 (3d Dep’t 2013) (prior false
accusation of sexual abuse inadmissible because it did not “suggest a pattern casting substantial
doubt on the validity of the charges made by the victim”) (citations omitted); United States v.
Colon, 880 F.2d 650, 658 (2d Cir. 1989) (defendant’s “conten[tion] that he had no recollection of
[the disputed event] . . . would have been sufficient to remove the issue of intent from the case”
and preclude evidence of prior bad acts as equivalent to a dispute over whether event occurred).
19
Indeed, “[e]vidence of prior criminal acts to prove intent will often be unnecessary, and
therefore should be precluded even though marginally relevant, where intent may be easily
inferred from the commission of the act itself.” People v. Alvino, 71 N.Y.2d 233, 242 (1987).
20
See also Badr v. Hogan, 75 N.Y.2d 629, 635 (1990) (“alleged prior misconduct” bearing only
on credibility “would show only that plaintiff had acted deceitfully on a prior unrelated occasion.
The matter was, therefore, collateral and, under the settled rule, could not be pursued . . . with
extrinsic evidence to refute plaintiff’s denial”).
21
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relationships was inadmissible “to challenge defendant’s credibility and rehabilitate her own,
which are collateral matters by their very essence”); see also People v. Harris, 150 A.D.2d 723,
725 (2d Dep’t 1989) (admission of evidence concerning prior, uncharged sexual abuse and rape
warranted new trial, because “enhancement of the complaining witness’s credibility [is not] one
of the recognized exceptions to the Molineux rule.”).21
Accordingly, because plaintiff cannot use the information she seeks for purposes of
challenging defendant’s credibility, her discovery should be denied. For example, in Coventry
Real Estate Advisors, L.L.C. v. Developers Diversified Realty Corp., 85 A.D.3d 450, 451 (1st
Dep’t 2011), the court denied discovery concerning alleged prior bad acts, because “[i]f the
executive denies the uncharged crime, plaintiffs will not be allowed to use extrinsic evidence
solely to impeach his credibility” and because the defendant already possessed a good-faith basis
to cross-examine the defendant concerning the acts, the discovery was unnecessary. Here, too,
because plaintiff claims to have a good faith basis to cross-examine President Trump (Mem. 13)
and cannot rely solely on extrinsic evidence to impeach defendant’s credibility, her Request
should be stricken. 22 See also Crowe, 38 A.D.3d at 438 (denying disclosure of “extrinsic
21
Polygram Holding, Inc. v. Cafaro, 42 A.D.3d 339, 341 (1st Dep’t 2007), cited by plaintiff
(Mem. 13-14), has no bearing on this analysis. There, in an action for enforcement of a
promissory note, evidence that the plaintiff had made loans in the past with the promise of
forgiveness was discoverable under the parol evidence rule allowing the parties’ usual course of
conduct regarding such agreements, to show that plaintiff made the loan at issue with a promise
of forgiveness. The evidence concerned plaintiff, not defendant, so the “propensity” evidence
rule was not at issue, and, in any event, the prior loans were not “prior bad acts.”
22
However, plaintiff could not even use the information for cross-examination, because the
alleged acts are uncharged, remote, highly prejudicial, and go to defendant’s propensity to
commit the acts at issue. See People v. Greer, 42 N.Y.2d 170, 176 (1977) (cross-examination on
prior bad acts allowed only for acts bearing on the witness’ credibility that do not suggest “a
propensity” to commit the act at issue); People v. Ridenhour, 153 A.D.3d 942, 943-44 (2d Dep’t
2017) (impeachment with “unsubstantiated [propensity] evidence” improper); People v. Smith,
39 Misc. 3d 20, 22 (2d Dep’t 2013) (reversing conviction because prior similar act evidence
improperly allowed); People v. Colas, 206 A.D.2d 183, 188 (1st Dep’t 1994) (reversing
22
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evidence to [be used to] contradict or refute any false . . . testimony . . . on cross-examination
regarding these prior acts of misconduct to impeach their credibility”).23
IV. THE REQUEST IS IMPROPER UNDER ANDON.
Plaintiff has not shown, as she must, that her need for the information in the Request --
which seeks collateral, private information for improper political purposes -- outweighs the
“competing interests” of not unduly burdening the President of the United States and not
delaying the resolution of the case. See Andon, 94 N.Y.2d at 747.
A. The Request Would Needlessly Delay The Proceedings.
Rather than sharpening the issues for trial, the Request would result in significant delay
and prolixity and likely lead to “unfettered litigation,” including in excess of 21 mini-trials
concerning each of the women identified. (Wang Aff. Ex. 5 Req. No. 18.) The parties would
have to subpoena each of these women to disprove each of their accusations. The invasive
discovery would lead to a media circus that would risk tainting the jury pool and lead to
additional “mini-trials,” as plaintiff acknowledges, concerning the admissibility of the
accusations and whether the conduct was sufficiently similar (Mem. 13), as well as the
witnesses’ credibility.
conviction where cross-examination concerned improper propensity evidence); People v. Pippin,

67 A.D.2d 413, 418 (1st Dep’t 1979) (12-year-old forgery conviction was so “remote in time”
that it was not probative of defendant’s credibility).
23
See also Fazio v. Fed. Exp. Corp., 272 A.D.2d 259, 260 (1st Dep’t 2000) (“The use of a
judicial subpoena for the sole purpose of . . . impeaching the witness’ general credibility—is
improper.”); Genger v. Genger, No. 100697/2008, 2015 WL 327166, at *2 (Sup. Ct. N.Y. Cty.
Jan. 15, 2015) (quashing subpoena seeking information to use as extrinsic evidence to attack
witness’s credibility); Interstate Cigar Co. v. I. B. I. Sec. Serv., Inc., 105 Misc. 2d 179, 189 (Sup.
Ct. Nassau Cty. 1980) (prior acts of alleged misconduct consisting of “evidence of plaintiff’s
involvement with alleged ‘fencing’ and ‘receipt of stolen merchandise’” not discoverable to
probe credibility); Baron v. Kings-Suffolk Realty Corp., 4 Misc. 2d 587, 591, (Sup. Ct. N.Y. Cty.
1957) (“discovery is not to be utilized solely for . . . impeach[ing] credibility”).
23
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Accordingly, even assuming there would be some negligible relevance from the
discovery -- and there is not -- because the Request does not “narrow and focus the scope of the
litigation and aid in the resolution” of plaintiff’s claim, Van Epps v. County of Albany, 184
Misc.2d 159, 172 (Sup. Ct. Albany Cty 2000), but rather broaden it and cause distraction, delay,
prolixity, and lead to unfettered litigation on collateral issues, they should be stricken. See
Andon, 94 N.Y.2d at 747; Neuschatz, 176 A.D.2d at 134-35 (improper requests for other sexual
harassment complaints do not “assist preparation for trial by sharpening the issues.”)(citation
omitted).24 That the Request seeks personal and inflammatory matters also weigh against
disclosure. See Forman v. Henkin, 30 N.Y.3d 656, 665 (2018) (courts must “balanc[e] the
potential utility of the information sought against any specific ‘privacy’ or other concerns”);
Greene, 150 Misc. 2d at 310 (denying discovery in defamation case involving disputed sexual
misconduct because “[t]he right of the individual to privacy must be respected and, in this case,
there is no need to investigate activities of the defendant”).
Plaintiff’s former counsel has also made it clear that she does not seek disclosure to
resolve the issues at bar, but to distract the President, obstruct his presidency, and take “far-
reaching” depositions where she can “ask [the President] many questions he may not wish to
answer but will be required to answer.”25 “When the disclosure process is used, like here, to
harass or unduly burden a party, a protective order eliminating that abuse is necessary and
24
See also Stephen-Leedom Carpet Co. v. Arkwright-Boston Mfrs. Mut. Ins. Co., 101 A.D.2d
574, 578 (1st Dep’t 1984) (disclosure improper where the information sought would focus
“undue attention on the collateral issued to the detriment of the main issue” such that the trial
loses focus from “the issues presented by the pleadings.”); Perez v. Fleischer, 122 A.D.3d 1157,
1158 (3d Dep’t 2014) (when reviewing requests for disclosure, New York courts must evaluate
“the potential for confusion or delay, such as expanded litigation or mini-trials on collateral
issues.”); Feeley v. Midas Properties, Inc., 168 A.D.2d 416, 417 (2d Dep’t 1990).
25
See, supra, note 2; Ex. 2 at 1.
24
32 of 34
proper.” Jones v. Maples, 257 A.D.2d 53, 56-57 (1st Dep’t 1999) (citation omitted).26
B. The Court Should Give Special Consideration to Burdens on the President.
The Court should take particular cognizance of the “special burdens” imposed by the
Request, given that it is directed to the President of the United States, because “potential burdens
on the President . . . are appropriate matters for the District Court to evaluate in its management
of the case. The high respect that is owed to the office of the Chief Executive . . . is a matter that
should inform the conduct of the entire proceeding, including the . . . scope of discovery.”
Clinton v. Jones, 520 U.S. 681, 707 (1997) (emphasis added); see also Cheney v. U.S. Dist.
Court for D.C., 542 U.S. 367, 391-92 (2004) (holding that where a discovery dispute involves
the President, it is “not . . . routine” and that courts must “bear[] in mind the burdens imposed on
the Executive Branch in any future proceedings.”).
This Court gave deference to the burden on former President Clinton in denying a request
to depose him, noting that he “still has important responsibilities to fulfill, and should not have
his valuable time taken away to appear unnecessarily at a deposition.” Carter Clark v. Random
House, Inc., 2002 WL 31748573, at *2 (Sup. Ct. N.Y. Cty. Dec. 2, 2002). A sitting President
should be accorded even greater respect, as this Court recognized in discussing state courts’
ability to “be just as mindful of the ‘unique position in the constitutional scheme’ that the
[Presidential] office occupies.” See Zervos v. Trump, 59 Misc. 3d 790, 797 (Sup. Ct. N.Y. Cty
2018) (citations and internal quotations omitted).
CONCLUSION
For the foregoing reasons, the Court should deny the motion to compel in its entirety.
26
See also Optic Plus Enterprises, Ltd. v. Bausch & Lomb Inc., 35 A.D.3d 1263 (2d Dep’t 2006)
(“[a] party’s right to discovery . . . may be curtailed when it becomes an unreasonable annoyance
and tends to harass and overburden the other party [or parties]”) (internal quotations omitted).
25
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Dated: September 14, 2018

New York, New York
KASOWITZ BENSON TORRES LLP
By: /s/ Marc E. Kasowitz

Marc E. Kasowitz
Christine A. Montenegro
Paul J. Burgo
1633 Broadway
New York, New York 10019
(212) 506-1700
Attorneys for Defendant Donald J. Trump
26
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2017 Summer Zervos V Donald J Trump Memorandum of Law I 192

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2017 Summer Zervos V Donald J Trump Memorandum of Law I 192

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FILED: NEW YORK COUNTY CLERK 09/14/2018 11:04 PM INDEX NO.

SUPREME COURT OF THE STATE OF NEW YORK

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION

KASOWITZ BENSON TORRES LLP

Attorneys for Defendant Donald J. Trump

September 14, 2018

PRELIMINARY STATEMENT .................................................................................................... 1

I. THE REQUEST IS NOT RELEVANT TO PLAINTIFF’S DEFAMATION

II. PLAINTIFF’S REQUEST FOR PROPENSITY EVIDENCE IS IMPROPER. .............. 12

A. Plaintiff’s Request Will Not Lead To Admissible Evidence. ............................... 12

1. The Common Scheme Or Plan Exception Does Not Apply. .................... 14

2. The Intent Exception Does Not Apply...................................................... 18

III. THE REQUEST IS IMPROPER FOR CREDIBILITY/IMPEACHMENT ..................... 21

IV. THE REQUEST IS IMPROPER UNDER ANDON. ........................................................ 23

A. The Request Would Needlessly Delay The Proceedings. ..................................... 23

Abell v. Cornwall Indus. Corp.,

Air Wisconsin Airlines Corp. v. Hoeper,

Andon v. 302-304 Mott St. Assocs.,

Baron v. Kings-Suffolk Realty Corp.,

Benzenberg v. Telecom Plus of Upstate New York, Inc.,

Bigelow-Sanford, Inc. v. Specialized Commercial Floors of Rochester, Inc.,

Biro v. Conde Nast,

Bonadio v N.Y. Univ.,

Matter of Brandon’s Estate,

Carter Clark v. Random House, Inc.,

Cheney v. U.S. Dist. Court for D.C.,

Coventry Real Estate Advisors, L.L.C. v. Developers Diversified Realty Corp.,

Crane v. New York World Telegram Corp.,

Crazytown Furniture, Inc. v. Brooklyn Union Gas Co.,

Crow-Crimmins-Wolff & Munier v. Westchester Cty.,

Doe v. Bronx Preparatory Charter Sch.,

Fazio v. Fed. Exp. Corp.,

Feeley v. Midas Properties, Inc.,

Fulani v. New York Times Co.,

Interstate Cigar Co. v. I. B. I. Sec. Serv., Inc.,

Josphe v. Dermatology Assocs. of Rochester, P.C.,

Lopez v. Huntington Autohaus Ltd.,

Lopez v. Univision Commc’ns, Inc.,

Mahoney v. Adirondack Pub. Co.,

Manzo v. Westchester Rockland Newspapers, Inc.,

Matos v. City of New York,

In re N.Y. County Data Entry Worker Prod. Liab. Litig.,

Neuschatz v. Societe Generale,

Optic Plus Enterprises, Ltd. v. Bausch & Lomb Inc.,

People v. Terence McCray,

Polygram Holding, Inc. v. Cafaro,

Rivera v. NYP Holdings, Inc.,

Rivera v. NYP Holdings Inc.,

Rosso v. Beer Garden, Inc.,

Seaman v. Wyckoff Heights Med. Ctr., Inc.,

Steinberg v. Newspaper Enterprises, Inc.,

Stephen-Leedom Carpet Co. v. Arkwright-Boston Mfrs. Mut. Ins. Co.,

United States v. Colon,

United States v. Cushing,

Van Epps v. County of Albany,

Wind v. Eli Lilly & Co.,

Zohar v. Hair Club for Men Ltd.,

Statutes and Other Authorities

CPLR 3101(a) ..............................................................................................................................2, 8

CPLR 3103(a) ..................................................................................................................................6

Prince, Richardson on Evidence § 4-615 (11th ed. 1995) .............................................................20

U.S. Const. Art. VI, cl. 2 ..................................................................................................................1

plaintiff’s memorandum of law (“Mem.”) in support of the motion.1