087.pdf

Case 9:08-cv-80232-KAM Document 87 Entered on FLSD Docket 05/13/2009 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80232-MARRA.JOHNSON JANE DOE NO. 3, Plaintiff, V. JEFFREY EPSTEIN, Defendant. ______________ ./ Defendant, Jeffrey Epstein's Reply to Plaintiff's Response In Opposition To Defendant's Motion To Stay And/Or Continue Action For Time Certain With Incorporated Memorandum Of Law Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN") by and through his undersigned attorneys, hereby files his Reply to Plaintiff's Response In Opposition to Defendant's Motion to Stay and/or Continue Action, and states: I. Introduction and Argument Plaintiff's Response in Opposition challenging the stay should not prevail when 5 th Amendment principles are at issue and when there exists a real, substantial and not remote possibility that Epstein may face criminal prosecution by the United States Attorneys' Office ("USAO") if the USAO unilaterally determines that Epstein somehow violated that certain Non-Prosecution Agreement dated June 30, 2008 ("NPA") and/or if Epstein is forced to waive those 5 th Amendment rights and participate in civil discovery in order to defend this civil action. Epstein should not be confronted with the substantial risk of loosing this civil action by virtue of asserting his 5 th Amendment privileges. Despite Plaintiff's contention, Case 9:08-cv-80232-KAM Document 87 Entered on FLSD Docket 05/13/2009 Page 2 of 7 Jane Doe No. 3 v. Epstein Page2 Epstein's Motion does not concentrate solely on the fact that the pleadings are not at the summary judgment stage. The motion also concentrates on Epstein's risk of loosing this entire civil action as a result of Epstein invoking his 5 th Amendment rights. Severino v. Klytie's Developments, Inc., 2008 WL 1782637, *2 (D. Colo)(recognizing that a stay is appropriate under similar circumstances as in the instant case); see also infra. In fact, waiver of Epstein's 5 th Amendment privileges should not be compelled to defend this civil action (and could be remedied by a reasonable stay), especially when civil discovery may lead to the USAO unilaterally declaring a violation of the NPA. The USAO has already unilaterally claimed that EPSTEIN violated the NPA by, among other things, "investigating the Plaintiffs (by and though his attorneys) whom brought civil suits against him for purposes of defending those civil actions" and "by contesting damages in this action and in the other civil actions." See Motion to Stay and Jack Goldberger Affidavit attached thereto as Exhibit "B". Thus, these are not vague assertions as Plaintiff claims. How can Epstein truly defend these matters and be afforded his due process rights when to do so might result in the USAO claiming a breach of the NPA? The fact is that he cannot. Notwithstanding the allegations against Epstein, this Court has an obligation to ensure his due process rights are upheld in both the civil and criminal contexts. Next, in her response, Plaintiff claims that a stay should not be entered because a parallel criminal proceeding against Epstein does not exist. Not only is Plaintiff's theory incorrect for reasons set out herein and in the Epstein's Motion to Stay, but her response ignores the significant fact that a stay may be issued in light of an ongoing Case 9:08-cv-80232-KAM Document 87 Entered on FLSD Docket 05/13/2009 Page 3 of 7 Jane Doe No. 3 v. Epstein Page3 investigation. It is clear from the NPA and Jack Goldberger's Affidavit (attached to the Motion to Stay) " ... that the criminal matters against Epstein remain ongoing until the NPA expires by its terms in late 2010 ... , and the threat of criminal prosecution against Epstein by the USAO continues presently and through late 2010." See Jack Goldberger's Affidavit, 115 (attached to the Motion to Stay). In fact, the FBI refused to provide information regarding this case and other related cases filed against Epstein" .. . stating the materials are at this time exempt from disclosure because they are in an investigative file, i.e., the matter is still an ongoing criminal investigation." See Jack Goldberger's Affidavit, 117 (attached to the Motion to Stay) Additionally, Plaintiff's response downplays the fact that civil discovery may result in the USAO claiming a breach of the NPA. Epstein wishes to vigorously defend this case and others filed against him; however, he does not wish to risk waiver of his 5 th Amendment privileges, at least before the NPA expires or any investigation is closed. Further, Plaintiff adopts the arguments set forth in Jane Doe's Response to the Motion to Stay filed in 08-CIV-80893, which asserts that the NPA is not attached to Epstein's Motion to Stay. The Court has a copy of the NPA. While it may be sealed, this Court may review same, in camera. As such, Plaintiff's Best Evidence argument (as adopted in the instant response) is entirely misplaced and should be disregarded. a. Justice Requires The Entry of A Stay As set out in the Motion to Stay, once the NPA expires, EPSTEIN intends to testify to all relevant and non-objectionable inquiries made to him in discovery be it a deposition, in interrogatories or in production requests. However, the current Case 9:08-cv-80232-KAM Document 87 Entered on FLSD Docket 05/13/2009 Page 4 of 7 Jane Doe No. 3 v. Epstein Page 4 circumstances are such that by testifying or responding to discovery, EPSTEIN will be required to waive his constitutional privileges, thereby subjecting himself to scrutiny by the USAO as a result of matters alleged in this civil action (and others before this Court and in the State of Florida 15 th Judicial Circuit Court, Palm Beach County). When an ongoing criminal investigation exists, courts have granted motions to stay civil proceedings. In St. Paul Fire and Marine Insurance Company v. U.S., 24 Cl.Ct 513 (1991 ), the court held that staying a civil action for 6-9 months was reasonable in light of a pending criminal investigation so long as the movant met certain elements (see infra) and the stay was not immoderate or unreasonable. Taking into consideration the Motion to Stay and this Reply as well as facts alleged by Plaintiff in her operative pleading against Epstein, it is clear that Epstein has met the elements of St. Paul Fire necessary for this Court to enter a stay: 1. Epstein has made a clear showing, by direct or indirect proof, that the issues in the civil action are "related" as well as "substantially similar" to the issues in the criminal investigation. 2. Epstein has made a clear showing of hardship or inequity if required to go forward with this civil case while the NPA and/or the ongoing investigation exist. (see supra and see also Motion to Stay and attached affidavit of Jack Goldberger, Esq. discussing Epstein's 5 th Amendment Rights and how those rights affect this civil litigation - see sup