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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

DONALD J. TRUMP, Motion Seq. No. 006

Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S

MOTION TO DE-DESIGNATE DOCUMENTS THAT WERE
IMPROPERLY DESIGNATED “CONFIDENTIAL”

CUTI HECKER WANG LLP

305 Broadway, Suite 607
New York, New York 10007
(212) 620-2603

Attorneys for Plaintiff Summer Zervos

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TABLE OF CONTENTS

Preliminary Statement.................................................................................................................... 1

Background .................................................................................................................................... 2

Defendant’s Attempts to Misuse the Confidentiality Stipulation .................................................. 7

There is No Basis for the Documents to be Designated “Confidential” ...................................... 10

Conclusion ................................................................................................................................... 13

TABLE OF AUTHORITIES

Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1
(1st Dep’t 2000) ......................................................................................................................... 11

Estee Lauder Inc. v One Beacon Ins. Group, LLC, No. 602379/05, 2013 WL 1703243
(Supreme Court, N.Y. Cnty. Apr. 12, 2013) .............................................................................. 11

Gambale v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004) ..................................................... 12

JetBlue Airways Corp. v. Helferich Patent Licensing, LLC, 960 F. Supp. 2d 383
(E.D.N.Y. 2013) ................................................................................................................... 11, 12

Mosallem v. Berenson, 76 A.D.3d 345 (1st Dep’t 2010) ............................................................. 12

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Plaintiff Summer Zervos submits this Memorandum of Law in support of

Plaintiff’s motion to de-designate certain non-confidential documents that Defendant and his

company, so-called “non-party” The Trump Organization LLC (“the Trump Organization”),

produced in discovery but improperly designated as “confidential” in an attempt to shield them

from public scrutiny.1

Preliminary Statement

This case, fundamentally, is about the truth. Summer Zervos told the truth when

she stated publicly that Defendant sexually assaulted her. Defendant then deliberately and

maliciously lied when he attacked her by falsely, repeatedly declaring to millions of people that

she fabricated the events for money, fame, and political purposes. See generally Complaint (Dkt.

No. 1) (Exhibit A2) ¶¶ 54-78. Plaintiff commenced this action in January 2017 to prove that the

truth matters, and that deliberate false attacks are both profoundly harmful and violate the law.

The truth is particularly crucial in the context of reporting sexual assaults

committed by those with all the power against those with none. A sexual perpetrator who attacks

his victim yet again with malicious falsehoods does so to make clear to the world and those he

abuses that his victims must never reveal their truth, and that they should instead remain silenced

and ashamed. It is, in effect, an expansion and perpetuation of the abuse.

Summer Zervos seeks to vindicate her rights and has prosecuted this action

through active discovery to uncover the truth and to hold Defendant accountable for his lies.

1
Plaintiff has argued already that the Trump Organization is under the effective control of
Defendant for purposes of this litigation, which has been evidenced throughout this case. See
Dkt. No. 188. The Court indicated during the October 26, 2018 conference with the parties that
it need not address that issue as a practical matter because the Trump Organization was going to
produce documents in response to a subpoena and not charge any costs.
2
All references to “Exhibit __” refer to the exhibits appended to the accompanying Affirmation
of Mariann Meier Wang dated October 24, 2019.

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Despite delays, the court process has worked.3 During discovery, Defendant and

his company, the Trump Organization, were forced to produce documents that corroborate, in

striking detail, the public account that Plaintiff gave before this case was filed regarding her

interactions with Defendant.

Long before this case was filed, Plaintiff publicly described exactly when, where,

and how the sexual assaults took place. Defendant insisted that there was no truth to Plaintiff’s

allegations, but he has now been forced to produce documents from his own files confirming that

he and Plaintiff were exactly where she said they were exactly when she said they were there. In

a further effort to hide the truth, Defendant/the Trump Organization initially designated those

documents “confidential” pursuant to the Stipulation for the Exchange of Confidential

Information (the “Confidentiality Stipulation” (Dkt. No. 168, Exhibit B)), and it was only after

months of legal wrangling, and a recent telephone conference last Friday with the Court, that

Defendant and the Trump Organization finally and begrudgingly agreed to lift a number of those

baseless designations. Exhibit C (De-Designated Documents Produced in Discovery by Trump

Organization).

But there is one critical piece that they insist on keeping secret. Defendant and

the Trump Organization still refuse to withdraw the “confidential” designation that they

baselessly attached to

3
While some adjournments were jointly agreed to, the serious litigation delay has all come from
Defendant. To cite just a few examples: he delayed serving non-party subpoenas until only 11
days were left on the then-applicable discovery deadline (and over a year after Plaintiff served
non-party subpoenas); he delayed for months in addressing ESI issues; he missed the March
2019 deadline for contesting privilege log issues by almost two months and is just now re-raising
them; he failed even to use the July 2018 medical authorization we provided to him, and notified
us about his failure, without explaining why, to request a new one only nine months later.

The Court has recently ordered both parties, including Defendant, to be deposed by December 6,
2019 and for Defendant to provide four dates for his deposition, with discovery closing January
30, 2020. See Dkt. No. 249.
2

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.4 The only argument they have advanced for insisting that these

nine pages of documents not be publicly disclosed is that they contain Defendant’s former cell

phone number, which they contend is “confidential.” That argument is nothing short of absurd

given that Defendant no longer uses that number and, indeed, himself publicized it to his

millions of Twitter followers during the 2016 campaign. Defendant evidently is aware that the

documents at issue closely corroborate Plaintiff’s detailed account of their interactions. That is

not a valid reason for Defendant to use the Confidentiality Stipulation to continue to conceal the

truth.

Background

Plaintiff alleges that, in late 2007, Defendant ambushed and sexually assaulted her

on multiple occasions. Complaint ¶¶ 23-34 (Exhibit A). Defendant repeatedly touched her,

groped her, and kissed her, even after she clearly and forcefully expressed her rejection of those

sexual contacts, with both her words and actions. Id.

Plaintiff had come to know Defendant through her time in pre-production and her

appearance on the fifth season of The Apprentice, which was filmed around the fall of 2005. Id.

¶¶ 19-20. In a remarkably prescient moment, Defendant fired Plaintiff on the first episode of her

season for stepping in to clarify something about a colleague who was about to be fired – she

insisted on intervening to tell the truth, and Defendant then turned to her and fired her for doing

so. After Plaintiff explained, “I’m being truthful, and I’ll always be truthful,” Defendant

responded, “How stupid is that?” See https://www.youtube.com/watch?v=DuGC6AcG6x4&t

=211s (beginning at 3:31).

Plaintiff’s account of Defendant’s sexual assaults on her is corroborated by

numerous statements and actions she took many years before she ever spoke out or filed this

4
The documents at issue, which are Bates numbered TRUMPORG_000101 through 000109, are
attached as Exhibit D to the Wang Affirmation and filed in camera. An unredacted version of
this Memorandum of Law is also being filed in camera.
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case. Plaintiff reported Defendant’s assaults to family members and close friends immediately

after they occurred and then again over the years. Complaint ¶ 3. She confronted Defendant

about his inappropriate behavior, both in a phone call shortly after the assaults and in an email

sent through his secretary Rhona Graff in April 2016. Exhibit E (Statement of Summer Zervos,

Oct. 14, 2016) at 3-4. Plaintiff also considered taking more formal legal action with respect to

Defendant many years ago and in fact reached out to multiple lawyers back in 2011, including to

Gloria Allred, whose records reflect that contact. Plaintiff also contacted Fox News in August

2015 and reported that Defendant had “invited me to a hotel room under the guise of working for

him” but had instead acted inappropriately toward her. Exhibit F (Email from Plaintiff to Fox

News). The fact that Plaintiff sought legal counsel in 2011 and spoke about this to others

including a news organization – years before the events of 2016 at issue in this case – strongly

supports the inference that her core narrative is true. In addition, Plaintiff produced in discovery

a polygraph test showing that she told the truth, Exhibit G, as well as photographs of the original,

hard copy New York Times, Southern California edition, that contained an article about

mortgages – the very hard copy that Defendant gave her in December 2007 when he told her that

she should default on her mortgage because defaulting on debt obligations was central to his

business model, Exhibit H. See also Exhibit E at 3; Complaint ¶ 33.5

But that is not all. Plaintiff’s account of the underlying sexual assaults has now

been corroborated, in close detail, by documents produced from Defendant’s own files. In

particular, the Trump Organization has produced copies of Defendant’s calendar entries and

itineraries from late 2007 through early 2008 – the period in which Ms. Zervos reported she met

with and was assaulted by Defendant. Those newly de-designated documents line up with Ms.

Zervos’s detailed public account with striking accuracy. For example:

5
Because it was a Sunday print edition, it appears that newspaper was delivered to Defendant
prior to the listed date of December 23, 2007.
4

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Ms. Zervos publicly stated on October 14, 2016 that: “In 2007 I was going to be

in New York for a social obligation. I contacted Mr. Trump’s office to see if he was available for

lunch. I was informed that he could not have lunch, but that he would make time to meet with me

at his office.” Exhibit E, at 1. Ms. Zervos then described in her statement how Defendant kissed

her on the lips twice during that meeting, which made her feel nervous and embarrassed. Id.

• The newly de-designated documents, which the Trump Organization produced in

discovery, include:

(1) an email from Ms. Zervos to Defendant’s secretary Rhona Graff in the fall of
2007 inquiring whether Ms. Zervos could take Defendant to lunch when she
was in New York, Exhibit C, at TRUMPORG_000353;

(2) a response from Ms. Graff in which she told Ms. Zervos to reach out when she
was in town and that she could meet with Defendant at Trump Tower, id., at
TRUMPORG_000355; and

(3) Ms. Zervos’s follow-up email on December 3, 2007 when she arrived in town,
id., at TRUMPORG_000351.

Ms. Zervos also stated that soon after her meeting with Defendant at Trump

Tower, Defendant reached out and reminded her that he had plans to visit Los Angeles. She

stated that he then called after he had just landed in Los Angeles from Las Vegas (a fact that

Keith Schiller, Defendant’s bodyguard, later mentioned to her) and in that call he eventually

asked her to meet him that evening at the Beverly Hills Hotel so they could go to dinner. Exhibit

E, at 1-2.

• Itinerary documents produced by the Trump Organization (which were recently de-
designated) corroborate that Defendant flew from Las Vegas to Los Angeles on
December 21, 2007 and stayed at the Beverly Hills Hotel for two nights, until
December 23, 2007. Exhibit C, at TRUMPORG_00003-00004.

Ms. Zervos stated that when she arrived at the hotel, “[t]he security guard opened

the door and [she] went in.” Exhibit E, at 2.

• The newly de-designated itinerary documents show that Schiller was present with
Defendant in Los Angeles during that trip. Exhibit C, at TRUMPORG_00003.

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Ms Zervos described in her public statement how Defendant grabbed and sexually

assaulted her in his Beverly Hills Hotel bungalow. Exhibit E, at 2.

• Once again, Defendant’s calendar shows him staying at the Beverly Hills Hotel on
December 21, 2007. Exhibit C, at TRUMPORG_00003-00004.

Ms. Zervos stated that before she left that night, Defendant “told [her] to meet

him the next morning at his golf course in Palos Verdes.” Exhibit E, at 3.

• Defendant’s itinerary and calendar confirm that Defendant visited the Trump National
Golf Club in Palos Verdes the next morning on Saturday, December 22, 2007.
Exhibit C, at TRUMPORG_00004 (a typo on the calendar entry incorrectly states the
date as December 21).

Thus, Defendant’s own records – produced for the first time in 2018, long after Ms. Zervos

initially spoke out – strongly corroborate Plaintiff’s account of the sexual assaults that Defendant

inflicted on her, and prove that Defendant lied. See, e.g., Complaint ¶ 8 (“I never met her at a

hotel . . .”).

The additional Documents from Defendant’s own files that are at issue in this

motion – –

corroborate Plaintiff’s account of the sexual assaults with even more granularity and with a

degree of precision that Plaintiff could not have known were she not telling the truth about those

interactions when she spoke publicly about them before this case was filed. For example:

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The documents at issue in this motion therefore provide even more irrefutable proof that

Plaintiff’s detailed account of her interactions with Defendant is accurate.

Defendant’s Attempts to Misuse the Confidentiality Stipulation

The Confidentiality Stipulation governs the designation of materials that “the

parties agree merit confidential treatment” in this case. Exhibit B ¶ 1. By its terms, it provides

that “[e]ach party may designate Documents produced . . . in connection with this action as

‘confidential.’” Id. ¶ 2 (emphasis added). Paragraph 3 then carefully limits the categories of

information that a party has the option to designate in this manner, namely materials that contain:

(i) trade secrets, proprietary business information, competitively sensitive

information, or other information the disclosure of which would, in the good faith
judgment of the party designating the material as confidential, be detrimental to
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the conduct of that party’s business or the business of any of that party’s
customers or clients;
(ii) social security numbers, bank account numbers, specific and/or detailed
personal financial information of a party, home addresses, personal email
addresses, personal telephone numbers, or an employee’s wage information;
(iii) medical or mental health records or medical or mental health information
about a party; or
([iv]) the identity of any person who has made an allegation of sexual assault,
sexual misconduct, or sexual harassment against a party but who has not
identified herself publicly.

The Trump Organization disregarded those limited, enumerated categories of

information that may be designated “confidential” under the Confidentiality Stipulation, and

instead designated “confidential” every one of the 702 pages of documents it produced,

regardless of whether there was any basis for doing so. Plaintiff initially raised the issue of the

Trump Organization’s over-designation of documents as Confidential on October 16, 2018. See

Dkt. No. 216 at page 3, n.2.

Plaintiff’s counsel contacted counsel for the Trump Organization on April 1, 2019

to seek clarification of the Trump Organization’s basis for designating certain documents

“confidential.” We noted at that time that the cell phone number for Defendant that is listed in

the documents at issue has been public for years and has been publicly disclosed by Defendant

himself. Wang Aff. ¶ 12. After Plaintiff’s counsel inquired about this twice, Matthew Maron,

counsel for the Trump Organization, responded on April 25, 2019 but did not explain why the

documents at issue were confidential, stating only that they “were designated ‘Confidential’

under [paragraph] 3(a)(ii)” of the Confidentiality Stipulation. We responded to the Trump

Organization the same day, pointing out that its response was insufficient to satisfy the meet and

confer process, and asking Mr. Maron to explain which language in the Confidentiality

Stipulation supposedly applied. Id. ¶ 13.

On May 1, 2019, Mr. Maron stated that the Documents “are deemed

‘Confidential’ under paragraph 3(a)(ii) [of] the Confidentiality Stipulation as they consist of

personal telephone information. Your position that the phone number referenced in these
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documents was ‘disclosed’ in a news article provides no basis whatsoever to support their de-

designation.” On May 2, 2019, we wrote to Mr. Maron to formally request that certain Trump

Organization productions, including the documents at issue in this motion, be de-designated, but

we received no response. We wrote again on May 9, 2019 to follow up, but once again we

received no response. Id. ¶ 14.

On October 10, 2019, we wrote to counsel for Defendant and the Trump

Organization to notify them that we intended to bring the dispute over the improper

confidentiality designations to the attention of the Court. On October 17, 2019, counsel

participated in a telephone conference with Michael Rand, Principal Law Clerk to the Honorable

Jennifer G. Schecter. During that call, Mr. Rand directed the parties to meet and confer one last

time regarding the confidentiality designations of the documents at issue. If the parties could not

resolve the issue, Mr. Rand indicated that the next step in accord with the Confidentiality

Stipulation would be for Plaintiff to file, by Order to Show Cause, a motion to de-designate the

documents. Id. ¶¶ 15-16.

On October 21, 2019, we conferred with counsel for Defendant and the Trump

Organization. Defense counsel informed us for the first time that they were withdrawing the

confidential designation for several pages of Defendant’s itineraries and other documents from

2007 that were in dispute, after baselessly designating them confidential and then refusing to

remove that designation in numerous conferrals. Notably, although Mr. Maron from the Trump

Organization was on the line, counsel for Defendant was the one who informed us of this change,

confirming again that Defendant has functional control over the Trump Organization and that

they are one and the same for purposes of this litigation. Id. ¶ 17. See Dkt. No. 216 at 1 n.1

(Plaintiff’s Section of Joint Letter to Court) (“Plaintiff has already pointed out to the Court that

Defendant has the ability to direct the Trump Organization with respect to all documents and

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files, and that for purposes of producing documents or providing information relevant to this

lawsuit, Defendant controls the Trump Organization.”); see also Dkt. No. 188.

In that conferral call, counsel for Defendant further stated that they will not

withdraw the confidential designation with respect to the documents at issue in this motion.

Plaintiff’s counsel again asked for the basis for that designation, and the parties made the same

arguments back and forth yet again, with counsel for Defendant stating unequivocally that they

will not change their position on this issue. The only basis Defendant’s counsel presented for

keeping those documents from the public is that they contain Defendant’s former cell phone

number. Wang Aff. ¶ 18.

Paragraph 4 of the Confidentiality Stipulation provides that, if a party receiving

information does not concur with the confidentiality designation, and the party that produced the

information does not agree to declassify such document, the receiving party “may move before

the Court for an order declassifying those documents or materials.” Accordingly, we now make

this motion pursuant to that provision and as permitted by the call with the Court on October 21.

There is No Basis for the Documents to be Designated “Confidential”

There is no basis for the documents at issue in this motion to be designated

“confidential” under the terms of the Confidentiality Stipulation. The sole basis that the Trump

Organization has provided for designating the documents “confidential” is that they contain

Defendant’s old cell phone number.6 But it is undisputed that the phone number is not currently

used by Defendant, that it has not been for years, and that this long-dead former telephone

number has been widely reported in the media and is anything but a secret. See Tanya Basu,

“Donald Trump Just Gave Out His Own Cell Phone Number,” Time, Aug. 4, 2015, available at

https://time.com/3983939/donald-trump-gawker-cell-phone.

6
It was the Trump Organization that designated these documents “confidential”.

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Not only had this phone number been publicly known and widely disseminated at

least since August 2015, after the number was disclosed publicly, Defendant himself publicized

the number as part of a publicity stunt to draw attention to his presidential campaign. See Polly

Mosendz, “Donald Trump Turns Leaked Cellphone Number Into Campaign Move,” Newsweek,

Aug. 4, 2015, available at https://www.newsweek.com/donald-trump-turns-leaked-cell-phone-

number-campaign-move-359662. Indeed, as of the date of this filing, Defendant himself

continues to make that cell phone number publicly available on his Twitter account. See

https://twitter.com/realdonaldtrump/status/628590822913650688.

The presence of a nonworking former cell phone number that Defendant himself

has disclosed and continues to disclose to the public is not a basis for designating a document

“confidential.” See JetBlue Airways Corp. v. Helferich Patent Licensing, LLC, 960 F. Supp. 2d

383, 397 (E.D.N.Y. 2013) (“Any countervailing privacy interest of [the party seeking sealing]

cannot defeat the strong presumption of public disclosure where the material it seeks to seal is

already in the public domain.”). Accordingly, the Court should order the removal of the

“confidential” designation that the Trump Organization inappropriately attached to these

documents, and allow all redacted or sealed documents filed with this motion to be re-filed

without sealing or redaction. See Estee Lauder Inc. v One Beacon Ins. Group, LLC, No.

602379/05, 2013 WL 1703243, at *5 (Supreme Court, N.Y. Cnty. Apr. 12, 2013) (ordering

unsealing of discovery documents because party that designated them confidential “failed to

provide a basis justifying the confidentiality designations for the subject discovery”).

The relief Plaintiff seeks is not merely compelled by the language of the

Confidentiality Stipulation and by common sense. It also is necessary to comply with the broad

“presumption of public access” to court documents under both the First Amendment and New

York law. See Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 7 (1st

Dep’t 2000). “The public interest in openness is particularly important on matters of public

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concern, even if the issues arise in the context of a private dispute about which secrecy, then,

may well prove the greater detriment to the public.” Id. (citations omitted). There is a strong

public interest in making these documents accessible to the public because they contain highly

relevant evidence that strongly corroborates Ms. Zervos’s report that Defendant sexually

assaulted her – allegations that formed the basis for Defendant’s defamatory statements.

There is a substantial public interest in evidence that tends to prove that Ms. Zervos’s

allegations are accurate. On the other hand, there is no countervailing interest in secrecy because

the documents do not contain any sensitive information that is not already public. See JetBlue

Airways Corp., 960 F. Supp. 2d at 397. See also Gambale v. Deutsche Bank AG, 377 F.3d 133,

144 & n.11 (2d Cir. 2004) (“[Courts] simply do not have the power, even were we of the mind to

use it if we had, to make what has thus become public private again. . . . Once [information] is

public, it necessarily remains public.”). The mere fact that Defendant would prefer to keep all of

his documents confidential, or to keep all documents that prove Ms. Zervos’s claim confidential,

is not a basis for denying public access to documents in which there is a substantial public

interest. See Mosallem v. Berenson, 76 A.D.3d 345, 351 (1st Dep’t 2010) (“neither the potential

for embarrassment or damage to reputation, nor the general desire for privacy, constitutes good

cause to seal court records”; rather, a party seeking confidentiality must demonstrate “specific

harm . . . that outweighs the importance of public access to the records”).

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Conclusion

For all of these reasons, the Court should order that the documents contained in

Exhibit D be de-designated and treated as not confidential for all purposes.

Dated: October 24, 2019

New York, New York

CUTI HECKER WANG LLP

By: /s/ Mariann Meier Wang

Mariann Meier Wang
Eric Hecker
Daniel Mullkoff
Heather Gregorio

305 Broadway, Suite 607

New York, New York 10007
(212) 620-2603

Attorneys for Plaintiff

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