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Following the Joinder Motion, Dershowitz made numerous public appearances in which
he vigorously denied the allegations, stated that Edwards and Cassell “are lying deliberately,”
and that if Cassell and Edwards “had just done an hours’ worth of work, they would have seen
she [Plaintiff] is lying through her teeth.” See Menninger Decl., Ex. E at 9-10.
The Dershowitz Case
On January 6, 2015, Edwards and Cassell initiated litigation against Dershowitz - the
Dershowitz Case. See Menninger Decl., Ex. F.
In the Dershowitz Case, Edwards and Cassell sued Dershowitz for defamation claiming
that Dershowitz’s public statements – that they and their client were lying and that they failed to
investigate their client’s claims – were false. The Complaint by Edwards and Cassell alleged that
“[i]mmediately following the filing of what Dershowitz knew to be an entirely proper and well-
founded pleading, Dershowitz initiated a massive public media assault on the reputation and
character of Bradley J. Edwards and Paul G. Cassell accusing them of intentionally lying in their
filing, of having leveled knowingly false accusations against the Dershowitz without ever
conducting any investigation of the credibility of the accusations, and of having acted unethically
to the extent that their willful misconduct warranted and required disbarment.” Menninger Decl.,
Ex. F, ¶ 17.
Edwards and Cassell claimed as false Dershowitz’s statements that “Edwards and Cassell
failed to minimally investigate the allegations advanced on behalf of their client [Virginia
Giuffre] and even that they sat down with her to contrive the allegations.” Menninger Decl., Ex.
E at 9. During the Dershowitz litigation, Edwards and Cassel responded to interrogatories and
requests for production issued by Dershowitz. Menninger Decl., Ex. G. Interrogatory No.1 asked:

(i.e., that they were known victims of Mr. Epstein and the Government owed them CVRA duties), especially
considering that these details involve non-parties who are not related to the respondent Government. These
unnecessary details shall be stricken.” See Menninger Decl., Ex. D.

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“State verbatim or as close as possible Each statement by Dershowitz that You assert defamed You,”
to which Edwards and Cassel responded with nine pages of statements made by Dershowitz in the
press where Dershowitz states: 1) Plaintiff is lying; 2) Edwards and Cassel know Plaintiff is lying; 3)
Edwards and Cassel helped Plaintiff lie and “put words in her mouth”; and 4) Edwards and Cassel
failed to properly investigate Plaintiff’s allegations before publicizing Plaintiff’s statements.
Menninger Decl., Ex. G at 3-11.
Edwards and Cassell further stated that the listed Dershowitz press statements were
defamatory because “[t]he factual assertions contained or implied in the statements quoted in
answer to Interrogatory Number 1 were not true, notably with regard to claims that Edwards and
Cassell were deliberately lying, had failed to conduct an investigation of the allegations before
filing them, had manipulated or conspired with Jane Doe No. 3 to make intentionally false
allegations about Mr. Dershowitz, and that Plaintiffs were motivated to participate in the filing of
knowingly false accusations against the Defendant by a desire to achieve personal economic
gain.” Menninger Decl., Ex. G at 11, Response to Interrog. 2.
At the time the Dershowitz Case was filed, Edwards, Cassell and Boies represented
Plaintiff regarding “potential litigations.” See supra at ¶ 3f.
Plaintiff, Edwards and Cassell claim to be in a joint defense or common interest
agreement relating to the Dershowitz Case (Menninger Decl., Ex. H at 205:19-206:7), although
no such agreement has ever been produced.
Plaintiff and her counsel actively participated in the Dershowitz Case. Plaintiff provided
a declaration in the Dershowitz Case in support of the claims against Dershowitz. Menninger
Decl., Ex. I. Plaintiff also sat for a deposition in the Dershowitz Case and testified in a manner
expected to support Edwards’ and Cassell’s claims. Menninger Decl., Ex. H. Her counsel filed
12 pleadings in that matter.

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I. The Attorney-Client and Work Product Privilege Standards and Limitations
a. The Attorney-Client Privilege
“The attorney-client privilege protects communications (1) between a client and his or
her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of
obtaining or providing legal advice.” United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011).
The purpose of the privilege “is to encourage full and frank communication between attorneys
and their clients and thereby promote broader public interests in the observance of law and
administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). “In order to
balance this protection of confidentiality with the competing value of public disclosure, however,
courts apply the privilege only where necessary to achieve its purpose and construe the privilege
narrowly because it renders relevant information undiscoverable.” Mejia, 655 F.3d at 132.
Because the privilege “stands in derogation of the search for truth so essential to the effective
operation of any system for justice ... the privilege must be narrowly construed.” Calvin Klein
Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000) (citing United States v. Nixon,
418 U.S. 683, 710 (1974)). “The party invoking the privilege also has the burden to show that the
privilege has not been waived.” Wultz v. Bank of China Ltd., 304 F.R.D. 384, 391
(S.D.N.Y.2015).
b. Work Product Privilege
The work-product privilege protects documents either created by counsel or at counsel's
directive, in anticipation of litigation. See In re Grand Jury Subpoenas Dated March 19, 2002 &
August 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003). The attorney work-product privilege “shelters
the mental processes of the attorney, providing a privileged area within which he can analyze and
prepare his client's case.” United States v. Nobles, 422 U.S. 225, 238 (1975). Again, the party

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asserting the work-product privilege “bears the heavy burden of establishing its applicability.” In
re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007). Work product
“includes both opinion work product, such as an attorney's mental impressions or legal theories,
and fact work product, such as factual investigation results.” Koumoulis v. Indep. Fin. Mktg.
Grp., Inc., 295 F.R.D. 28, 39-40 (E.D.N.Y. 2013), aff'd, 29 F. Supp. 3d 142 (E.D.N.Y. 2014).
“Both the attorney-client and work-product privileges may be waived if a party puts the
privileged communication at issue by relying on it to support a claim or defense.” Id.
II. Plaintiff and her Attorneys Waived Attorney-Client and Work Product Privileges
by Putting Plaintiff’s Representation At Issue in the Dershowitz Case
“The [attorney-client] privilege may implicitly be waived when [a party] asserts a claim
that in fairness requires examination of protected communications.” United States v. Bilzerian,
926 F.2d 1285, 1292 (2d Cir.1991); see also McGrath v. Nassau Cty. Health Care Corp., 204
F.R.D. 240, 244 (E.D.N.Y. 2001) (“Parties may waive any work product protection by putting
the privileged information at issue”). Courts determine whether a subject matter has been placed
at issue based on whether “(1) assertion of the privilege was a result of some affirmative act,
such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put
the protected information at issue by making it relevant to the case; and (3) application of the
privilege would have denied the opposing party to information vital to his defense.” Bank
Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 210 F.R.D. 506, 509-10 (S.D.N.Y. 2002)
(quoting Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975)). “[C]ourts have generally
applied the Hearn [at issue] doctrine liberally, finding a broad waiver of attorney-client privilege
where a party asserts a position “the truth of which can only be assessed by examination of the
privileged communication.” Bank Brussels Lambert, 210 F.R.D. at 508.