Carroll v. Trump

1

E. JEAN CARROLL, Plaintiff, v. DONALD J. TRUMP, Defendant.

No. 22-cv-10016 (LAK)

United States District Court, S.D. New York

February 15, 2023

Roberta Kaplan Joshua Matz Shawn Crowley Matthew Craig Trevor Morrison Kaplan Hecker & Fink LLP Attorneys for Plaintiff

Joseph Tacopina Matthew G. DeOreo Chad Derek Seigel Tacopina Seigel & DeOreo, P.C. Alina Habba Michael T. Madaio Habba Madaio & Associates LLP Attorneys for Defendant

MEMORANDUM OPINION

Lewis A. Kaplan United States District Judge

Donald J. Trump is accused in this and a second very closely related civil case of having raped E. Jean Carroll in the mid 1990s. Ms. Carroll claims that the dress she wore on that occasion (and allegedly has preserved) bears stains that have tested positive for male DNA, albeit male DNA from an unidentified source. She provided Mr. Trump with the DNA test report absent an appendix, over three years ago. At the same time she demanded a DNA sample from Mr. Trump for the obvious purpose of seeing whether it is possible to tell whether Mr Trump's DNA is on the dress.

Until February 10,2023, about ten weeks before this case is set to be tried, Mr. Trump has refused to provide his DNA. Moreover, he has employed litigation tactics the effect and probable purpose of which have been to delay Ms. Carroll's actions against him - an object that is significant in view of the fact that Ms. Carroll now is 79 years old. Now -

• after the time for pretrial discovery of evidence in both cases has expired,

• three days after Mr. Trump's latest request for a multi-week trial postponement was substantially denied,

• one day after the parties filed a joint pretrial order in the first of these cases that makes clear that neither Ms. Carroll nor Mr. Trump intends to call any DNA experts as witnesses in the trial of that case, and

• on the eve of trial of at least the second-filed of these cases -

Mr. Trump suddenly has proposed a deal. He has offered to provide a DNA sample but only on the condition that I require Ms. Carroll first to turn over to him a previously undisclosed appendix to the DNA report - the report that Ms. Carroll obtained and provided to Mr. Trump years ago.

There is no justification for any such deal. Either Ms. Carroll is obliged to supply the omitted appendix or she is not. Either Mr. Trump is obliged to provide a DNA sample or he is not. Neither is a quid pro quo for the other. And the short answer to Mr. Trump's request is clear.

Mr. Trump is not entitled to the undisclosed appendix. The time for pretrial discovery in both cases is over, and Mr. Trump never previously asked for it.

To be sure, that is not to say that Mr. Trump could not have obtained it had he acted differently. He and his numerous counsel have had Ms. Carroll's DNA report and its conclusions, albeit without the appendix he now seeks, since January 2020. The copy of the report they have had since then shows on its face that there was an appendix and that the appendix was not attached to it. That is clear (1) because the body of the report refers to the appendix that was not included with the copy turned over and (2) from the pagination. Despite this obvious omission, Mr. Trump never in three years asked a court to require its production. Indeed, the record discloses no request for the appendix even to Ms. Carroll's counsel until February 9,2023. Moreover, at the outset of this case in late 2022, the Court directed both parties to submit "[a] detailed statement of what specific discovery that was not conducted in Carroll I [(the first of the two related cases)] is needed for the prosecution or defense of this case [(Carroll II)] and the basis for the contention that it is needed."^[1]But Mr. Trump's written statement made no reference to the appendix he now seeks. Nor did his counsel mention it at the scheduling conference in open court.

The patently untimely request for the appendix thus reflects either a tactical shift or just an afterthought. One possible explanation is that it is an attempt to reverse a deliberate tactical decision by Mr. Trump's counsel not to raise the question of the appendix over the past three years, a decision perhaps the product of a belief that asking for the appendix might well have resulted in renewed demands for Mr. Trump's DNA. Another possible explanation is a negligent failure to read the report with any care over the entire three-year period and thus the failure to notice the lack of the appendix. But whatever the explanation, the effort comes too late.

Nor would Ms. Carroll now be entitled to a DNA sample from Mr. Trump. Her counsel have had plenty of opportunities in both of the two related cases to move to compel Mr. Trump to submit a DNA sample. Had they done so, they almost certainly would have gotten it. But Ms. Carroll's counsel never moved to compel Mr. Trump to submit a DNA sample. They obviously decided to go to trial without it. And there is no justification for imposing Mr. Trump's new proposal on Ms. Carroll now that she has prepared for trial on the entirely justified basis that there will be no DNA evidence.

Both sides have had years in which to make DNA an issue in this case. For their own reasons, each did not do so. Starting down the DNA road at this point almost inevitably would lead to further delay for sampling, testing, expert report writing, and depositions of experts. It almost surely would delay the trial again. And Mr. Trump has given the Court no reason to believe that pursuing that course would be likely to yield any admissible evidence, let alone a guarantee that anything important would come of it. Indeed, as is discussed in greater detail below, further proceedings with respect to the DNA on the dress cannot prove or disprove Ms. Carroll's claim that Mr. Trump raped her and could well prove entirely inconclusive in all respects.

In these circumstances, there is no case for relieving the parties of their obligations to have completed their pretrial discovery by the dates fixed by the Court.

Facts

Carroll I, the first of Ms. Carroll's two cases against Mr. Trump, originally began in November 2019 in a state court in New York and later was removed to this court. It alleges that Mr. Trump defamed Ms. Carroll in a series of statements he issued in June 2019 in relation to her rape accusation against him. This, the second action (“Carroll II”), was brought three years later, in November 2022, to recover damages and other relief for the alleged rape pursuant to a newly-enacted New York law, the Adult Survivors Act, which created a "window" within which adult survivors of sexual assaults could sue their assaulters without regard to the otherwise applicable statute of limitations. Carroll II includes also a claim against Mr. Trump for defamation in a statement he issued in October 2022.^[2]

Carroll Iand Carroll II, at least for the moment, are two distinct lawsuits involving the same parties. But make no mistake, although only Carroll II includes a claim for damages for the alleged rape itself, as distinct from the alleged defamation, the question whether Mr. Trump in fact raped Ms. Carroll is central to both cases.

The DNA Report About the Dress

Unsurprisingly Ms. Carroll requested a DNA sample from Mr. Trump shortly after Carroll I was commenced and her lawyers learned that there was unidentified male DNA on the dress.

In a notice that Ms. Carroll served on January 30, 2020 and filed a few weeks later in state court in Carroll I, Ms. Carroll sought Mr. Trump's DNA pursuant to Section 3121 of the New York Civil Practice Law and Rules.^[3] The Section 3121 notice stated that Mr. Trump was required to submit to a physical examination to "obtain a buccal, blood or skin cell sample . . . sufficient for DNA analysis and comparison against unidentified male DNA present on the dress that [Ms. Carroll] wore during the sexual assault at issue."^[4]

Ms. Carroll's 3121 notice attached a laboratory report concerning an examination of the dress and shoes Ms. Carroll allegedly wore at the time of the alleged assault by Mr. Trump which, she claimed, she had kept in her closet until 2019, when she wore them for a photoshoot for New York magazine.^[5] The purpose of the examination was "to determine if male biology, specifically semen, is present" on the dress Ms. Carroll allegedly wore at the time of the alleged assault and whether any of the five individuals who might have come into contact with the dress at a photo shoot, allegedly the only subsequent occasion on which she wore that dress, "can be eliminated as contributors to any biology foreign to [Ms.] Carroll."^[6] Examination of the dress did not detect any "acid phosphate activity" which, had it been detected, would have been "a presumptive indication of the presence of semen."^[7] But the examination included also swabbing of different surface areas of the dress for DNA.

The report stated that the swabs taken from the dress that were processed for DNA analysis and examined microscopically consisted of skin cells and, for some areas that were swabbed, nucleated epithelial cells.^[8] There was no evidence of any sperm cells. Nevertheless, the DNA recovered from the outside right sleeve of the dress "was determined to be a mixture of at least four contributors: three significant contributors, of whom at least one is male, and at least one minor/trace-level contributor."^[9] The DNA recovered from the outside left sleeve of the dress "was determined to be a mixture of at least four contributors: two significant contributors and at least two minor/trace-level contributors of whom at least one is male."^[10] For both, there was "very strong support that [an individual present at the photo shoot] is a significant contributor," and four...