EFTA00611358.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No.: 08-80736-Civ-Marra/Johnson JANE DOE 41 and JANE DOES #2, Petitioners, - vs- UNITED STATES, Respondent. HEARING BEFORE THE HONORABLE KENNETH A. MARRA Friday, August 12, 2011 United States Federal Courthouse West Palm Beach, Florida 33401 2:00 - 4:19 p.m. Reported By: Melinda Colchico Notary Public, State of Florida J. Consor & Associates 1655 Palm Beach Lakes Boulevard, Suite 500 West Palm Beach, Florida 33401 Phone: 561-682-0905 EFTA00611358  sor & Associates Rcre,,,,, a and trwatip.,,,t. I I f 1 APPEARANCES: 2 On behalf of the Petitioners: 3 BRAD EDWARDS, ESQ. FARMER JAFFE WEISSING EDWARDS FISTOS & LEHMAN 4 425 N. ANDREWS AVENUE, SUITE 2 FORT LAUDERDALE, FLORIDA 33301 5 (954) 524-2820 6 PAUL G. CASSELL, ESQ. USJ QUINNEY COLLEGE OF LAW 7 UNIVERSITY OF UTAH 332 SOUTH 1400 EAST, ROOM 101 8 SALT LAKE CITY, UTAH 84112-0730 (801) 585-5202 9 JAY C. HOWELL, ESQ. 10 JAY HOWELL & ASSOCIATES 644 CESERY BOULEVARD, SUITE 250 11 JACKSONVILLE, FLORIDA 32211 (904) 680-1234 12 13 On behalf of the Respondent: 14 DEXTER A. LEE, ESQ. MARIE VILLAFANA, ESQ. 15 ASSISTANT U.S. ATTORNEYS 99 NE 4TH STREET, SUITE 300 16 MIAMI, FLORIDA 33132 (305) 961-9320 17 18 ALSO PRESENT: 19 ROY BLACK, ESQ. BLACK SREBNICK KORNSPAN & STUMPF 20 201 S. BISCAYNE BOULEVARD, SUITE 1300 MIAMI, FLORIDA 33131 21 (305) 371-6421 22 BRUCE REINHART, ESQ. 250 S. AUSTRALIAN AVENUE 23 SUITE 1400 WEST PALM BEACH, FLORIDA 33401 24 (561) 202-6360 25 Page: 2 EFTA00611359  sor & Associates Rcpettttt z and Trzny-orme. Inc 1 PROCEEDINGS 2 3 THE COURT: Good afternoon. Please be seated. 4 This is the case of Jane Doe No. 1 and Jane Doe 5 No. 2, versus United States, Case No. 08-80736. 6 Will counsel state their appearances, please. 7 MR. LEE: Good afternoon, Your Honor. May it 8 please the Court. For the United States of 9 America, Marie Villafana, Assistant United States 10 Attorney, and Dexter Lee, Assistant United States 11 Attorney. Good afternoon. 12 THE COURT: Good afternoon. 13 MR. EDWARDS: Good afternoon. On behalf of 14 Jane Does 1 and 2, Brad Edwards, as well as my 15 co-counsels, Paul Cassell and Jay Howell. 16 THE COURT: Good afternoon. 17 MR. BLACK: Your Honor, good afternoon. Roy 18 Black appearing on behalf of the intervening 19 lawyers, Black, Weinberg and Lefkowitz. 20 THE COURT: Good afternoon. 21 MR. REINHART: Good afternoon, Your Honor. 22 Bruce Reinhart on behalf of myself. 23 THE COURT: Good afternoon. Anyone else 24 that's going to be participating as an attorney? 25 All right. We have a number of matters to go Page: 3 EFTA00611360  sor & Associates Rcpettttt z and Franc -mum, Inc 1 over today. I thought the first thing I should do is 2 figure out who's going to be participating in the 3 proceedings. So I think I should deal with the 4 intervenors' motions first before we get to any of the 5 substantive motions. 6 So, Mr. Reinhart, why don't I hear from you 7 first. 8 MR. REINHART: Good afternoon, Your Honor. 9 THE COURT: Good afternoon. 10 MR. REINHART: Let me start by saying I don't 11 want to be here and I shouldn't be here but I feel 12 like I have to be. What is pending before you 13 today is a motion by the plaintiffs to address what 14 they purport to be violations of the Crime Victims' 15 Right Act by the government. However, buried in 16 that motion, for reasons that escape me to this 17 day, are allegations that I, who am not a party to 18 this litigation, have never been counsel in this 19 litigation and was minding my own business, have 20 now been alleged to have violated the Department of 21 Justice's regulations and the Florida Bar rules. 22 If you look at the face of the motion, it's 23 clear that there's absolutely no reason for that to 24 be in the motion other than it's a personal attack 25 for the purpose of harassment and abuse. To my Page:4 EFTA00611361  sor & Associates Repottttt z and FrlII•cip . ii r. It c 1 knowledge, these allegations have never been sent 2 to the Florida Bar, even though Mr. Edwards, as a 3 member of the bar, would have an obligation to 4 report them if he believed they were true. But he 5 hasn't. They have never been reported to the 6 Department of Justice, even though there are civil 7 and criminal sanctions, if, in fact, they believed 8 it was true and they believed I did what they said 9 I did. 10 Rather than putting these allegations into 11 that sort of a forum, where I would have a chance 12 to respond and the investigation would be 13 confidential and I could clear my name in private, 14 they've thrown them into this litigation in a 15 public pleading and now they say I shouldn't be 16 allowed to respond to it. 17 THE COURT: Well, haven't you really responded 18 to it? 19 MR. REINHART: Judge, I've said what I want to 20 say but there's been no finding. There's been 21 no -- frankly, there's been no inquiry why in the 22 first place they did what they did, and I think 23 that's really the issue before the Court today. 24 It's not the merits of whether what they say is 25 true or not true. It's not, but that's not the Page: 5 EFTA00611362  * sor & Associates arporlag and Trasscriptous. In. 1 issue for you today. The issue is whether the 2 Court is going to sanction this sort of behavior 3 and whether we're going to have a legal system 4 where I could stand here in a commercial litigation 5 case and put in a pleading that my neighbor is a 6 tax evader or that the guy down the street is 7 cheating on his wife. I mean, we have rules of 8 court that are supposed to limit the facts at issue 9 to the facts at issue. And if we start letting 10 people simply make ad hominem attacks outside of 11 the four corners of the case, the Court can't allow 12 that. 13 So what the Court ought to do, most 14 respectfully, in this case, is to -- whether you 15 allow me to intervene and pursue it myself or 16 whether you do it on your own, you ought to convene 17 some sort of a proceeding and make the plaintiffs 18 justify why they put these allegations in this 19 pleading when they so clearly don't belong there 20 and what, if any, investigation they did to support 21 them. And that's what I'm asking you to do today 22 is to simply convene that process, and if they 23 complied with the rules of the court and they did 24 their sufficient investigation, then the proceeding 25 will show that. And if they were reckless and they Page:6 EFTA00611363  sor & Associates Rani,,,,, z and franc -prom. Ira 1 were malicious and they did it just because they 2 could, they ought to be sanctioned for it, and the 3 Court ought to send a message that you're not going 4 to tolerate that sort of behavior. 5 So, Judge, in short, that's what I'm asking 6 you to do, either exercise your discretion under 7 Rule 24(b) to allow me to be a permissive 8 intervenor and pursue those allegations myself, or 9 to exercise your authority under Rule 11 to 10 sua sponte issue an order to show cause and convene 11 that proceeding. 12 THE COURT: If I let you intervene to try and 13 clear your name from what you consider a slanderous 14 or libelous attack, aren't I essentially inviting 15 anyone who has a slanderous or libelous or 16 defamatory statement made against them in 17 litigation, inviting them to come in and intervene 18 in a court and have the court conduct a mini-trial 19 on whether or not the allegations are true and -- I 20 mean, I'm basically going to open up the legal 21 system to anyone who feels offended by something 22 that's said in court to come in and start 23 mini-lawsuits within a lawsuit. 24 I'm a little concerned about, you know, 25 opening the door to that kind of a process. Page: 7 EFTA00611364  sor & Associates Kepi,,,,, z and It,. c-ipt.ov. Inc 1 MR. REINHART: And I understand that, and I 2 agree. However, first of all, this is 3 permissive -- I'm requesting permissive 4 intervention under Rule 24. So in the first 5 instance, you have the discretion to be the 6 gatekeeper in that instance, not to let everybody 7 in. I'm not saying I have an absolute right to be 8 here. I'm saying you have the discretion to allow 9 me to be here and to argue these points. So that's 10 my first response, is the Court can act as a 11 gatekeeper. And specific to the facts here, all 12 you have to do is look at the face of the pleading 13 to realize that these allegations have nothing to 14 do with this cause of action. It's not even close. 15 I would think in another case when the Court 16 might look at the face of the pleading and say, 17 well, I can understand why this might be here, you 18 can exercise that gatekeeping function. In the 19 alternative, Judge, I'm not asking you to let 20 everybody in. I'm asking you, as the Court, to 21 police your own courtroom and issue an order to 22 show cause for behavior that's occurred in front of 23 you that at least on its face is improper. And 24 that's certainly a proper function for the Court. 25 Again, that doesn't set a precedent that anybody Page: 8 EFTA00611365  sor & Associates Rcpe,,,,, a and trse•c-iptios. It c 1 who wants to complain can complain. It's the Court 2 policing its own backyard. 3 THE COURT: All right. Thank you. 4 Who wants to respond? Mr. Edwards? 5 MR. EDWARDS: Thank you, Your Honor. 6 Your Honor, as you recognized from our pleadings, 7 we feel that this particular motion serves no 8 purpose but to delay and prejudice the plaintiffs 9 from achieving justice. As you know, we represent 10 two victims of many victims of molestation by 11 Jeffrey Epstein, and there's one issue here and 12 that's whether or not the Crime Victims' Rights Act 13 and their rights under that act were violated. 14 First, we don't believe that Mr. Reinhart has 15 standing to make the arguments or -- 16 THE COURT: Well, who has standing to make the 17 arguments other than the person that you attacked 18 in your motion? 19 MR. EDWARDS: Well, a nonparty in this 20 proceeding does not have standing to make a Rule 11 21 sanction motion. So he's asking for -- 22 THE COURT: He's asking to come into court SO 23 he can seek that kind of relief. 24 MR. EDWARDS: That's the kind of satellite 25 litigation we think should be avoided here. In Page: 9 EFTA00611366  sor & Associates Rcrottttt z and franc-ip•mv. Inc. 1 fact, the case law is clear that permissive 2 intervention, if denied, is virtually never 3 overturned on appeal because we don't want to 4 encourage this type of satellite litigation. 5 A Rule 11 standard, as we know, is an 6 objective standard and the analysis is whether a 7 reasonable attorney in like circumstances could 8 believe that his actions were factually and legally 9 justified. 10 We believe there was a bad deal that went 11 down. We have circumstances here that we are still 12 trying to figure out how it happened and why it 13 happened, and the circumstances that we had before 14 we put them into these pleadings is simply that 15 Mr. Reinhart was a U.S. Attorney from 1996 through 16 2008; yet on October 23rd, 2007 -- 17 THE COURT: We don't need to go over all the 18 facts again. I know what the facts are. I know 19 what you said in your pleading. I know what 20 Mr. Reinhart said in response. And I don't -- I'm 21 not here to decide whether there was or was not a 22 bad faith allegation. I'm here to decide whether 23 or not I should allow Mr. Reinhart into the 24 proceeding in order to litigate that whole issue. 25 MR. EDWARDS: And we're asking that you deny Page: 10 EFTA00611367  * sor & Associates arporing and Trinweirus. In. 1 that motion. If it's granted, we would like to 2 take discovery on that matter, including his 3 deposition. 4 THE COURT: All right. Thank you. 5 Mr. Lee, do you have anything you wanted to 6 say? 7 MR. LEE: Yes. Thank you, Your Honor. We did 8 not oppose Mr. Reinhart's motion. We basically 9 view this as a matter between the petitioners' 10 counsel and Mr. Reinhart. 11 THE COURT: All right. At this point, I'm 12 going to reserve ruling. I'm not going to -- I'm 13 kind of reluctant to grant the motion, but I'm 14 going to give it some further thought. There's no 15 need to have a ruling on that today for purposes of 16 Mr. Reinhart's concerns. So I'll reserve ruling. 17 All right. Let me hear from Mr. Black on the 18 intervention by the attorneys. 19 MR. BLACK: May it please the Court, and good 20 afternoon. 21 THE COURT: Good afternoon. 22 MR. BLACK: We have filed -- the three lawyers 23 who previously represented Mr. Epstein have filed 24 for our right to intervene under Rule 24(a) as an 25 intervention of right because our issue relates to Page: I I EFTA00611368  * sor & Associates Rrpoling and Treafctiptius, Inc. 1 the property or the transaction. 2 THE COURT: Are you saying you have a -- is it 3 as a matter of right or -- 4 MR. BLACK: Yes. 5 THE COURT: -- permissive intervention? 6 MR. BLACK: No, as a matter of right. I just 7 have a few cases to cite to the Court. 8 In Chiles versus Thornburgh, it's an Eleventh 9 Circuit case, 1989, 865 F. 2d 1197, the court says, 10 "The Supreme Court has held that an interest under 11 Rule 24(a)(2) means a 'significantly protectable 12 interest.'" 13 The Eleventh Circuit has gone on and In Re: 14 Grand Jury Matter, which is 735 F. 2d 1330, to say 15 that -- it was a motion to intervene. The district 16 court disallowed it. It went up to the circuit. 17 It was remanded, and the court says: We have 18 recognized that a district court should allow 19 intervention by a client in the first instance as 20 soon as the attorney/client privilege issue is 21 raised. 22 That was a grand jury proceeding dealing with 23 a client seeking to protect his attorney/client 24 privilege, and the court held that intervention was 25 as a matter of right. Now, that obviously was a Page: 12 EFTA00611369  * sor & Associates gnu'Ion and Tronnipon. Inc. 1 criminal investigation. 2 In terms of the -- on the civil docket, this 3 court decided in El-Al Residences v. Mt. Hawley 4 Insurance, which is at 716 F. Supp. 2d 1257, an 5 opinion by Magistrate Judge McAliley, in which he 6 says that the law in this circuit and others is 7 clear that this court must allow intervention by a 8 client in the first instance as soon as the 9 attorney/client privilege is raised, citing cases. 10 Colorable claims of attorney/client and work 11 product privilege are a textbook example of an 12 entitlement to intervention as a matter of right, 13 and citing particular cases. 14 THE COURT: Now, let me ask you about that 15 question of privilege. As I understand your 16 motion, you're claiming that documents that were 17 exchanged between yourself and the other attorneys 18 representing Mr. Epstein and the United States 19 Attorney's Office and maybe the State of Florida -- 20 I don't remember if the -- 21 MR. BLACK: It is just the United States 22 Attorney, Your Honor. 23 THE COURT: Okay. The United States Attorney. 24 During the negotiations that resulted in the 25 non-prosecution agreement are somehow work product, Page: 13 EFTA00611370  * sor & Associates !trimling and IT,. •tvitio, Inc. 1 am I correct? 2 MR. BLACK: Yes, sir. 3 THE COURT: Okay. How can a letter between 4 you and your co-counsel and an adversary in a 5 criminal prosecution be considered work product, if 6 it's given to the adversary? 7 MR. BLACK: Yes, sir, and I am happy to answer 8 that question. In order to do so, I have to give 9 the Court some background as to the duties and 10 functions of lawyers as they are of this date in 11 our sentencing system, under the guidelines system 12 and under the particular rules, not only of the 13 court but of the ethical rules of the ABA and the 14 Florida Bar and rules issued by the courts. 15 To begin with, the Supreme Court has 16 recognized for a long time that plea bargaining is 17 an essential part of the administration of justice. 18 It all goes back to the Santobello case. That was 19 40 years ago. The world has changed significantly 20 since then. 21 I just looked at the statistics. The last 22 year I could find in 2005, 87 percent of all 23 federal criminal cases were resolved by a guilty 24 plea and 3.9 percent were resolved by a trial. 25 We've turned into a system of guilty pleas rather Page: 14 EFTA00611371  4bfr sor & Associates inRepettttt z and franc -wimp. Ira 1 than a trial system. And because of that, the 2 courts have put a lot of duties and obligations on 3 lawyers dealing with this plea bargaining process. 4 And as a result of that, the courts and the rules 5 have added sanctions -- excuse me, safeguards to 6 protect us because of communications made during 7 the course of this plea bargaining process. And I 8 think that is really what we trying to get to here. 9 There are safeguards that have been in effect 10 since -- for almost 80 years. And there's a case, 11 United States v. Herman back in the seventies from 12 the Fifth Circuit, saying that the -- the old Fifth 13 Circuit, that we have recognized a type of immunity 14 for any statements made during the course of plea 15 bargaining. And then the Supreme Court and 16 Congress enacted Rule 11(e)(6), which became Rule 17 11(f), and, of course, now refers us to Rule 410. 18 So those rules provide safeguards. What they do is 19 they say if you engage in the plea bargaining 20 process, there is an immunity for the statements 21 that are made. 22 Any statements that relate to the plea 23 bargaining process are immunized. They don't use 24 the word "immunization" but they make it clear that 25 that's the type of protection or cloak that's given Page: 15 EFTA00611372  sor & Associates Reputing and Tra•ctiptlue. In. 1 to these kind of communications. 2 THE COURT: You're talking about inculpatory 3 statements, aren't you? 4 MR. BLACK: Any statement; any statement made 5 during the course of plea bargaining. Rule 410 6 speaks, by the way, of civil and criminal, and it 7 says nothing about incriminating or inculpatory or 8 admissions of guilt. Any statement made during the 9 course of the plea negotiating process is given a 10 type of immunity. 11 THE COURT: I thought that rule relates to 12 admitting statements in evidence during the course 13 of a trial; not that it's a privileged statement 14 that can never be disclosed. Am I incorrect about 15 that? 16 MR. BLACK: Well, I don't -- I'm not -- that's 17 a very good question that we have struggled some 18 with. What are the obligations of, for example, 19 the United States Attorney when they receive 20 communications from defense counsel under Rule 11 21 and under Rule 410? Under Rule 11, they cannot 22 even make derivative use of it so they couldn't 23 take that information and give it to the FBI, for 24 example, to continue investigating. 25 I don't believe that they could give to it Page: 16 EFTA00611373  * sor & Associates Itrpoting and In. •egtrus. In. 1 third parties. I think it would be a violation of 2 the rule to use it in any way other than in 3 determining the type of plea that they would offer 4 to a defendant. 5 Beyond that, I do not believe that it can be 6 used for any purpose by the government, and I don't 7 believe that anybody could use it for any purpose. 8 But even so, in this case, the purpose the 9 plaintiffs want for this is to use it in 10 litigation. So we don't have to worry about if 11 they're going to disseminate it to the media or use 12 it to write a book, or what have you. They intend 13 to use it as evidence in this proceeding. So I 14 don't know that we need to necessarily address any 15 other kinds of uses of this material. 16 THE COURT: Is this material -- first of all, 17 how does -- how do the plaintiffs in this case know 18 about it? Don't they already have it in their 19 possession? 20 MR. BLACK: No. They have obtained the 21 government responses and communications to us. The 22 courts have redacted -- or the government has 23 redacted any of our communications to the 24 government. Now, there are extensive 25 communications. I don't have it here, but my Page: 17 EFTA00611374  sor & Associates Repottttt a and franc -Irma. Inc. 1 folder is about this thick and I have never been in 2 a case that has had as much, particularly written 3 communication, from defense counsel to the 4 government as this case has. 5 We have discussed with them a panoply of 6 things. It's the classic opinion work product that 7 we talk about, what the statutes mean, what the 8 import of the statutes are, what the cases are, 9 what the discretion of the Attorney General is. We 10 discuss federalism, the differences between state 11 and federal law enforcement; whether or not the 12 government should proceed with this case because of 13 various policy reasons. This is classic opinion 14 work product that we send to the government. 15 Now, I know what the Court's ultimate question 16 is: Well, if you send it to the government, why 17 should I give it any kind of confidentiality or 18 privilege? The reason I'm going through this is 19 that we criminal lawyers know that today anything 20 that we send to the government is under this cloak 21 of a type of immunity; that it cannot be used for 22 anything. The government cannot use it in their 23 case. They can't use it in their investigation. 24 They can't use it for anything other than the 25 purpose for which we give it to them, and that's to Page: 18 EFTA00611375  sor & Associates Rcp.ttttt z and Tras•s•ip.iiii. Ira 1 determine whether or not we can come to a plea 2 negotiation. 3 And one of the policy decisions here, and this 4 is why I believe that a privilege applies, is that 5 if the Court should say a civil plaintiff could 6 obtain our communications with the government, in 7 which we discuss everything in the world about this 8 client, and use it in a civil case against the 9 client, all this is going to do is to begin to 10 prevent us from having those kind of 11 communications. And all these cases about plea 12 bargaining say that the most important thing is to 13 have open, honest and frank discussions between the 14 parties to see if any kind of agreement can be 15 reached, and since you have these open and frank 16 conversations you don't have to worry that these 17 materials can in any way be used against your 18 client. 19 THE COURT: All right. Do you have any cases 20 that address this principle in the context of -- 21 similar to what we are doing, with where someone 22 was trying to get this kind of information in a 23 civil case? 24 MR. BLACK: I have never seen a case, a civil 25 case, in which a third party plaintiff has been Page: 19 EFTA00611376  sor & Associates Rcpettttt z and fray•c•ip.iiia. In 1 able to obtain letters and communications and 2 briefs of defense counsel sent to a prosecutor in 3 order to seek a plea bargain. There is no such 4 case. 5 THE COURT: And what cases are you relying on 6 for the proposition that these are cloaked with 7 some type of privilege of non-disclosure? 8 MR. BLACK: Yes, sir. I would rely on United 9 States versus Herman, which is 544 F. 2d 791. 10 That's a Fifth Circuit case of 1977. And, of 11 course, the classic case is Santobello. For some 12 reason I don't have it right here in my folder, 13 although I've got it right here, I believe, which 14 is United States Supreme Court at 404 U.S. 257. 15 So those talk about the safeguards. I just 16 wanted to add two things to this, after I pick up 17 my notes. The courts -- in addition to encouraging 18 plea bargaining -- issued a series of opinions 19 starting in the late 1990s, starting with the 20 Second Circuit, moving to the Ninth Circuit, and 21 now all the circuits do this, in which they say 22 that defense lawyers are ineffective and commit 23 malpractice if they do not communicate with the 24 prosecutor in seeking a plea bargain. 25 There's one case, United States v. Leonti, Page: 20 EFTA00611377  sor & Associates Reportint anJ I ray•c•irry. Inc 1 which is a Ninth Circuit case, which says that you 2 not only have to communicate with the prosecutor, 3 you have to go with your client during the 4 briefings. You have to keep them advised as to 5 what your client is doing and you have to follow 6 this all the way through the end. So the courts 7 put an obligation on us to follow through on this. 8 Now, to get to the work product privilege -- 9 THE COURT: Before you move on -- 10 MR. BLACK: Yes, sir. 11 THE COURT: -- I don't remember you citing 12 these cases or making this argument in your brief. 13 Did I miss it or is this a new twist on what 14 you've -- based upon my question to you? Or is 15 this a new argument that you're raising that you 16 didn't raise before? 17 MR. BLACK: Well, in our -- we filed a motion 18 for intervention and generally set forth what we I 19 intended to do, and the plaintiffs then responded 20 saying that, we object to intervention but request 21 the right to brief whether or not the work product 22 privilege applies if we're granted intervention. 23 So we're at the stage of intervention not at 24 the time of developing the scope of what the 25 privilege is, but the Court asked me, you know, Page: 21 EFTA00611378  * sor & Associates Rrpotiong and Int •rrtros. Inc. 1 obviously what the bottom line is. But I think 2 that the only real issue here is intervention. I'm 3 happy to discuss, you know, the contours of the 4 privilege and why it applies in this case. 5 THE COURT: So you're saying -- your position 6 at this point is, I've made an assertion of 7 privilege; I as -- just on that assertion alone, 8 without regard to the merits of whether the 9 documents are or are not privileged, your mere 10 assertion of the privilege requires me to let you 11 in in order to try and defend that claim? 12 MR. BLACK: Well, I don't think it's quite 13 that cut and dry. I have made -- I have asserted 14 the privilege. I have to have some basis for it. 15 In other words, I couldn't just make some frivolous 16 comment and say, you know, there's an 17 attorney/client privilege or this or that. I think 18 I have to make some statement that there is some 19 good faith basis for saying this. And in our 20 papers, we did this. 21 I'm happy to say more, but I think there's 22 certainly enough here for the Court to say that it 23 is a matter that is of serious concern and that we 24 ought to be able to intervene in order to address 25 it with the Court. Because if we don't address it, Page: 22 EFTA00611379  sor & Associates Rcpe,,,,, z and I raa•c•ecriot. lir 1 it will be lost. 2 THE COURT: All right. So, again, I'm trying 3 to make sure I didn't miss something in the papers. 4 As I understood your moving papers, you claim that 5 these are work product privileged documents or 6 there was some grand jury material involved in 7 this. 8 MR. BLACK: Yes. There is some 6(e) material 9 as well. 10 THE COURT: All right. And, again, maybe I 11 missed it in all the materials I had to go through 12 for today, but did you make the claim in your 13 papers that it's work product because part of the 14 attorney -- criminal defense attorney's 15 responsibility is getting into plea negotiations 16 and there's this privilege of communications with 17 the prosecutors in dealing with plea negotiations; 18 was that line of -- 19 MR. BLACK: Yes. 20 THE COURT: -- reasoning made? 21 MR. BLACK: Right, because that's all these 22 papers are. We said it's privileged because of 23 these communications, because of the importance of 24 keeping open and frank communications, and that it 25 fits under the privilege. Page: 23 EFTA00611380  * sor & Associates Itrpoling and Tian...iron.. Inc 1 THE COURT: I'm sorry. I didn't mean to 2 interrupt you. What else did you want to say? 3 MR. BLACK: All right. The other thing that I 4 wanted to mention is that there are the restatement 5 of the law regarding lawyers in the latest -- from 6 the American Law Institute, used as an example 7 under the purpose of 410, where a party actually 8 sends documents to the government to examine under 9 a limited -- under confidentiality and limited use, 10 and the American Law Institute says that does not 11 waive the work product privilege. 12 The difference -- I don't want to get too deep 13 into it right now, but the difference between the 14 two is you can give work product to other people 15 and not waive its type of work product; whereas you 16 do in the attorney/client privilege. As soon as 17 you give anything under the attorney/client 18 privilege to a third party, you waive it, but not 19 under work product. If it still has some 20 protection associated with it, the question is, 21 under work product, did you give it to people just 22 to use however they want or was there some 23 limitation on it? And what's important here is the 24 things that were sent to the government -- and 25 while we were adversaries at the time, although we Page: 24 EFTA00611381  sor & Associates Rcpe,,,,, z and trao.c-ips. nip. It c 1 no longer became adversaries -- it was under the 2 protections that were given to these materials. 3 And I would -- there's one case I would 4 analogize to, although it's not exactly, obviously, 5 the same. Judge Marcus decided this case dealing 6 with an American Airlines Crash near Cali, Colombia 7 and American Airlines was part of a program where 8 its pilots could report FAA violations to them and 9 to the FAA and it was considered confidential. 10 Judge Marcus, while he was on this court, said 11 that under Rule 501 -- even if you don't find any 12 of these other privileges, under 501, where you can 13 accept common law privileges, he said, I would find 14 a limited common law privilege for a reporting 15 function like this because it is so important to 16 prevent airline disasters that I think that these 17 things ought to be privileged to facilitate open 18 and frank discussions between the pilots and the 19 FAA, and what have you, because it's too important. 20 And, certainly, this fits under that same type of a 21 rubric. 22 If we have a problem with work product, I 23 think that we can find a common law privilege of 24 communication here because of the importance given 25 to plea negotiations that would keep these out of Page: 25 EFTA00611382  sor & Associates Rcpettttt z and frar•c•ep.iiet. In 1 the hands of the plaintiffs who intend to use it 2 against our clients. 3 So I think for a number of reasons this court 4 should allow this intervention. I don't think now 5 is the time to make the decision or the ultimate 6 decision. But I would say this: If there's any 7 kind of balancing here, the importance of 8 protecting communications in plea bargaining today 9 is very important. It's important to this court, 10 to all the courts dealing with trying to resolve 11 criminal cases. And all the cases say that's 12 something that ought to be encouraged. 13 The plaintiffs, who have already filed for 14 summary judgment, who have said numerous times they 15 have all the evidence they need, certainly have a 16 very low, if any, need for anything from us to try 17 to prove their case. So if there's any kind of a 18 balancing test here, I think that it certainly goes 19 in favor of protecting these materials. 20 THE COURT: What do you think in these 21 materials is protected under Rule 6? 22 MR. BLACK: I think that all the materials 23 that the plaintiff is requiring are -- oh, under 24 6(e)? 25 THE COURT: Yes. Page: 26 EFTA00611383  sor & Associates Reportnu and franc -wimp. Ira 1 MR. BLACK: Under 6(e), what happens is that 2 in a number of the letters we discuss materials 3 that we have been shown or know of, like names of 4 witnesses, names of victims and what have you. 5 That goes back and forth. That is obviously grand 6 jury material. Now, I can't say that there's a 7 large amount of that. There is some discussion of 8 those things in these letters, but I wouldn't say 9 that it's more than 10 percent of them. The rest 10 of them are just all the lawyers talking about the 11 law and that type of thing. 12 THE COURT: And what standing would you have 13 to complain about grand jury material being 14 released? 15 MR. BLACK: I think that any officer of the 16 court has standing to complain about the 17 dissemination and violation -- of grand jury 18 materials in violation of 6(e). I don't know that 19 anybody needs a particular standing for that. 20 THE COURT: I mean, if the government -- I 21 don't know what the government's position on that 22 is. But if the government isn't concerned, you 23 think you can step in and say, hey, you're not 24 honoring your obligations under 6(e); I'm going to 25 step in? Page: 27 EFTA00611384  * sor & Associates ItcpotHag and TranctiptIoa. In. 1 MR. BLACK: Actually, there are times when we 2 do that. For example, if a government agent should 3 disseminate grand jury materials to the news media, 4 there have been times when we have made complaints 5 for violations of 6(e). And I've even -- I have 6 filed letters with the Department of Justice to the 7 Attorney General complaining about prosecutors, and 8 I won't mention any names -- not in this case -- 9 who have disseminated 6(e) material in violation of 10 the rules. So I think that any party can make a 11 complaint. 12 THE COURT: I assume you've done that when it 13 adversely affected one of your clients? 14 MR. BLACK: Well, obviously, because 15 THE COURT: Not because it -- just to protect 16 the system? 17 MR. BLACK: Your Honor is exactly right. This 18 is a highly adversarial system and the only reason 19 I'm objecting to it now is because it's beneficial 20 to my client. I'm not doing it out of any 21 eleemosynary intent. 22 THE COURT: Thank you, sir. 23 MR. BLACK: Thank you, Your Honor. 24 THE COURT: Mr. Edwards. 25 MR. EDWARDS: Your Honor, we are asking that Page: 28 EFTA00611385  sor & Associates Rcpettttt z and franc -prom. Ira 1 Your Honor deny the motion to intervene in this 2 case. Mr. Black and these attorneys have not 3 intervened on behalf of Mr. Epstein, who may 4 actually have an interest. They have no stake in 5 the outcome of this case. There is no case that 6 stands for -- 7 THE COURT: Well, I mean, if they are right 8 that this is work product material -- and maybe 9 that is not something that I can decide now, but to 10 the extent that it might arguably be work product 11 material, don't they have standing to protect their 12 own work product? 13 MR. EDWARDS: The cases that Mr. Black cited 14 indicated or held that they needed a colorable 15 argument for work product. You can't just come in 16 and claim work product. And there is a plethora of 17 cases that stand for the proposition, and has only 18 been followed everywhere throughout the country, 19 that voluntary disclosure of work product 20 information to an adversary waives work product. 21 The other rules of evidence that Mr. Black 22 referred to, 410, don't apply to this case. That 23 is a rule of admissibility rather than 24 discoverability. They're not being entered against 25 Mr. Epstein in this case. They are being entered, Page: 29 EFTA00611386  sor & Associates R • pittttt g and Fri ••c -trine. Inc 1 if at all, against the government. 2 And just to correct the statement that he made 3 that the government redacted the portions of the 4 emails and correspondence from Mr. Epstein's 5 attorneys to the government, that's not how this 6 happened. In previous litigation, it was ordered 7 that all of it be turned over to us from 8 Mr. Epstein, and they unilaterally made the 9 decision to redact the information from their 10 attorneys going to the government. And prior to 11 the order that granted us permission to receive 12 this correspondence, all of these arguments, the 13 work product, the 410 argument, all of them were 14 before this court and all of them were overruled. 15 We've been down this road before. We would argue 16 that it's the law of the case at this point, since 17 these are similar issues, and there is no colorable 18 argument of work product at this point, and the 19 intervention should be denied. 20 THE COURT: All right. The cases that you're 21 relying on and that I, at least coming in here, was 22 thinking about that when you disclose something to 23 an adversary it's no longer a work product, are you 24 familiar with the cases in the context of plea 25 negotiations where there's an exception or there's Page: 30 EFTA00611387  sor & Associates Rapettttt z and franc -trios. Ira 1 some different type of privilege that applies in 2 plea negotiations between the government and a 3 criminal defendant? 4 MR. EDWARDS: We have read every case in his 5 brief, as well as any others on this subject, and 6 can't find a single case out there that stands for 7 that proposition. It just doesn't exist. So the 8 cases that he's spoken about don't say that there 9 is this automatic cloak of immunity between plea 10 discussions. In fact, there are cases talking 11 about plea discussions, and there isn't that. 12 This doesn't come up that much because this is 13 a unique scenario where the best evidence of how 14 the victims' rights were violated, when and by 15 whom, is going to be found in the correspondence 16 between the government and Mr. Epstein, as we have 17 already seen from the half of the conversation that 18 we've been able to see. 19 THE COURT: Let me ask you this, and this kind 20 of gets to the merits of the argument, which I 21 don't really want to discuss right now, but do you 22 really need the defense lawyers' correspondence or 23 statements to the government attorneys in proving 24 up whether or not the government violated the 25 Victims' Rights Act, assuming I'm going to find Page: 31 EFTA00611388  sor & Associates Krze,,,,, z and franc -wimp. Irc 1 that it's not -- it doesn't start from the point of 2 indictment; the rights are triggered earlier than 3 that? Don't you have enough information, without 4 their comments in there, trial strategies that may 5 have been revealed to the government -- it is 6 really the government's actions or inactions that 7 you're complaining about, not Epstein's lawyers' 8 actions or inactions. 9 MR. EDWARDS: We have a lot of information but 10 some of the information that we have are clearly 11 responses by A