EFTA00724185.pdf

MAY. 10. 2010 4:36PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. 2 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA B.B., Plaintiff, v. CASE NO. 502008CA037319XXXXMB AB • JEFFREY EPSTEIN, Defendant. OFFICERS' OPPOSITION TO )1OIWPARTY TOWN OF PALM BEACH POLICE EPSTEIN'S MOTION TO COMPEL AND MEMORANDUM 1N SUPPORT OF ORDER MOTION TO QUASH AND/OR FOR PROTECTIVE e Michael Reiter, Captain Non-parties, former Town of Palm Beach Chief of Polic Michael Dawson, Detective George Frick, Detective Joseph Recarey, Detective rs"), submit this memorandum in Michelle Pagan (collectively "Town Police Office Town of Palm Beach Records opposition to Defendant Epstein's Motion to Compel ht Pursuant to Defendant's Custodian's and Police Officers to Produce Records Soug and in support of their Motion Subpoenas Duces Tecum ("Epstein's Motion to Compel") for Protective Order") and to Quash Subpoenas and/or for Protective Order ("Motion state the following in support: SUMMARY OF ARGUMENT verable evidence that is Epstein's Motion to Compel fails to identify any disco ds of the Town Police Officers. likely to result from production of the cell phone recor a call was made and the telephone These records will show nothing more than the time the call. Based on questioning at numbers associated with the maker and recipient of EFTA00724185 MAY. 10.2010 4:38PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. 3 ably ve Recarey, counsel for Epstein presum the depositions of Chief Reiter and Detecti ne calls to the minor victims of sexual offenses seeks information regarding any telepho as well as any calls made to other law investigated by the Town Police Officers state or federal attorneys during the Epstein enforcement personnel or to the mpt from s of all of these individuals are exe investigation. The telephone number Flo rida 's Pub lic Rec ord s Law . Mr. Epstein has failed to make any disclosure under their "ex cep tion al nec ess ity" or "ex trao rdinary circumstances' to warrant showing of e. Eve n if he had , the Cou rt sho uld protect the Town Police Officers from disclosure her purely threatens the disclosure of not only this improper fishing expedition, which privacy, but ers have a reasonable expectation of personal information In which the offic rmants the ent investigations and confidential info records reflecting active law enforcem whi ch cou ld jeop ard ize the Tow n's ability to protect its citizens. There is disclosure of . te way to pro tect aga inst the disc losure of such highly prejudicial information no adequa BACKGROUND 5 to May 2006 A. The Town's Investigation: March 200 or victim of lewd acts and/or prostitution By this and related suits,' an alleged min n of for sexual battery and intentional inflictio has filed a civil suit against Mr. Epstein the subject of an investigation by the Town of Palm emotional distress. Mr. Epstein was had 200 6, Although an initial, unverified report Beach Police Department in 2005 and ber 28, artment regarding Mr. Epstein on Novem been received by the Town Police Dep and federal courts. In May of rela ted case s are pen ding against Mr. Epstein in Florida state for discovery and A num ber consolidated before Judge Kenneth Marra cases would be 2009, the related federal court cases were mul tiple directed that witnesses common to the procedural purposes. Judge Marra sel understands from conversations with counsel for Mr. Epstein deposed only once. Undersigned coun the d In accordance with related state court actions have acte once. Plai ntiff in this case that coun sel in and the s only s common to the state and federal case Judge Marra's order to depose witnesse 2 EFTA00724186 MAY. 10. 2010 4:38PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. 4 report was begin until March 14, 2005 when a 2004, the Investigation at Issue did not Epstein Detective Joseph Recarey took over the received by Officer Michele Pagan. tember 2005. investigation from Officer Pagan in Sep d in the issuance of a Probable Cause The investigation ultimately resulte of Mr. May 200 6 and a state grand jury indictment Affidavit for Mr. Epstein and others in Affidavits, the tein in July 200 6. Fol low ing the issuance of the Probable Cause Eps riate state and matter was referred to the approp Town's investigation ceased and the federal law enforcement authorities. B. Cellular Telephone Records r its the Town Police Department turned ove Pursuant to a federal subpoena, produced me nt on or about August 28, 2006. It has entire case file to the federal govern to the Epstein documents it still maintains relative to the parties in this case those udin g a sign ifica nt num ber of e-mails between law enforcement investigation, incl n igne d to the cas e, with the exc eption of cell phone records of the Tow personnel ass n Police Offi cer s. Eps tein 's req ues t for such records broadly asks the Tow Police Officers to produce: phone and personal cell 15. All cell phone records, both official cell ] the following time periods: phone, used by you between during [sic 4 a. January 1, 2004 - December 31, 200 b. January 1, 2005 — December 31, 200 5 2006 c. January 1, 2006 - December 31, 2007 d. January 1, 2007 — December 31, 2008 e. January 1, 2008 — December 31, f. January 1, 2009 - todays date. are ve Rec are y Is curr entl y em ployed as a Town police detective, as Detecti retired Town tain Fric k, Det ecti ve Pag an and Detective Dawson. Chief Reiter is a Cap chief of police. 3 EFTA00724187 MAY. 10. 2010 4:38PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. 5 d in the only Town Police Officers depose Chief Reiter and Detective Recarey, records they do not possess any of the cell phone the civil suits, have testified that shortly after practice to destroy their monthly bills sought by Epstein because it is their of pay me nt. Det ecti ve Rec are y testified that there was a short period receipt and/or Eps tein inve stig atio n whe n he had two cell phones. This overlap time during the for cell d bec aus e the Tow n Pol ice Dep artment had begun to offer a stipend occurre he had a few ne ser vice with ano the r pro vide r, which he took advantage of, while pho phone. months remaining on his original cell d an item ized bill from either of his cell Detective Recarey has never receive cific call s made or received. After contacting AU phone carriers that would reflect spe the 2005 lity of obtaining records from during and Sprint/Nextel regarding the possibi reprint calls arey was advised by AT&T that it could Epstein investigation, Detective Rec ed bill int/Nextel can only offer a non-itemiz made or received in 2005 whereas Spr reprint. cific phone calls related to the Epstein Chief Reiter could not recall any spe ). with his personal cell phone. (Reiter at 222 investigation that he may have made tein may have given the victims in the Eps Detective Recarey testified that he bers. investigation one of his cell phone num 4 EFTA00724188 MAY. 10.2010 4:39PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. 6 LEGAL ARGUMENT to Overbroad and Not Likely to Lead A. The Requests are Impermissibly Discoverable Evidence ts for all offi cial and per son al cell phone records over a five-year The reques involving Jan uar y 1, 200 4 to the pre sen t, not limited in any way to matters period, from to the tein inve stig atio n, are imp erm issi bly overbroad and not likely to lead the Eps discovery of admissible evidence. overy is 80(c) allows a person from whom disc Florida Rule of Civil Procedure 1.2 tect that per son from annoyance, oppression or sought to move for an order to pro y the discovery not be had; (2) that the discovery ma undue burden by directing "(1) that ired conditions .... that certain matters not be inqu be had only on specified terms and s....." Rule disc overy be limited to certain matter into, or that the scope of the , not y obtain discovery regarding any matter 1.280(b)(1) provides that parties "ma ject matter of the pending action. . . ." As federal privileged, that is relevant to the sub il tical lang uage under the Federal Rules of Civ courts have observed in construing iden not rele vant to 'subject matter involved' in the Procedure, "requested information is tion." on the party's mere suspicion or specula pending action if the inquiry is based 0).3 Inc., 894 F.2d 1318, 1325-26 (Fed. Cir. 199 Micro Motion Inc. v. Kane Steel Co., overy which it believes is a mere fishing "A trial court has authority to prevent disc v. Suoarmill Woods Civic Association. inc. expedition calculated for harassment." has 1346, 1351 (Ma. 1st DCA 1997). Where it Southern States Utilities, 687 So. 2d lead disc overy sought is neither relevant nor will been affirmatively established that the interpreting Florida's civil rules and decisions for guidance in Ship Florida courts -look to the federal 3 ida and federal rules. GJnpagle tylgmt, v. Leondakos procedure rules' so as to harmonize the Flor 602 So 2d 1282, 1283-84 (Fla. 1992). 5 EFTA00724189 MAY. 10.2010 4:39PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. 7 discretion to deny the irrelevant to the discovery of relevant information, a trial court has 655 So. 2d 91, 95 (Fla. 1995); discovery. Allstate Insurance Company v. Langston, So. 2d 548, 550 (Fla. 5th DCA Residence Inn by Marriott v. Cecile Resort. Ltd., 822 of material is impermissible and noting 2002) (agreeing that carte blanche discovery of the requested documents). that the record was insufficient regarding the relevancy ant information the discovery of Mr. Epstein has not and cannot identify any relev personal cell phone records for the which is likely to result from the production of their discretion to protect these non-parties past five years. The Court should exercise its from these harassing requests. ain Information Exempt B. The Town Police Officers' Cell Phone Records Cont under Florida's Public Records Law sought by Mr. Epstein contain any To the extent that any of the cell phone records documents are exempt from Information related to the Epstein investigation, those y, Mr. Epstein's requests seek disclosure under the Public Records Law. Specificall cement officers who made the statutorily protected information regarding the law enfor limited, to their own family calls and the recipients of those calls including, but not t calls with confidential members and crime victims. These records may also reflec informants and/or relating to active criminal investigations. Spouws 1. Telephone Numbers of Law Enforcement Personnel and their pre_Exempt. disclosure of personal The Public Records Law, Section 119.071, protects the well as personal information information regarding its police officers and their families as al offenses. Fla. Stat. for crime victims, including minor victims and victims of sexu ers, social security numbers §119.071(4)(d)1.a (gThe home addresses, telephone numb nnel ... are exempt .J'). and photographs of active or former law enforcement perso 6 EFTA00724190 MAY. 10. 2010 4:39PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. the same info rmation is protected relative to the Along with the places of employment, orcement per sonnel. See id. Telephone numbers spouses and children of such law enf utors or assistant state attorneys, statewide prosec of current of former state attorneys, . also protected. See id. §119.071(4)(d)1.d assistant statewide prosecutors are of Info rma tion , Incl udin g Tel eph one Numbers of Minor Victims 2. identifying , are Exempt. Sexual Offenses and Crime Victims ord s Law also exe mp ts from disclosure any and all documents The Public Rec of a iden tity, incl udin g the hom e or employment telephone number, that reveal the intelligence of a sex ual offe nse . In this way , the law carefully protects criminal victim s under Florida inve stig ativ e info rma tion reg ard ing minor victims of sexual offense and and /or 800 sou ght by the Eps tein duces tecum. Fla. Stat. § Statutes Chapter 794 home (ex cep ting from disc losu re any document that reveals the identity, 119.071(2)0) ets of me nt tele pho ne num ber , hom e or employment address, or personal ass or employ person as im of a crim e, incl udin g the crim e of sexual battery, and identifies that the vict tion which vict im of a crim e); Fla . Sta t. § 119.071(2)(h)1.b (excepting any informa the , including a who is a victim of a sexual offense may reveal the identity of a person and 800). sexual offense proscribed in Chapters 794 tein Has Ma de No Sho wing of "Exceptional Necessity" or Eps t C. rrant Disclosure of Otherwise Exemp "Extraordinary Circumstances" to Wa Public Records n Pol ice Offi cers con ced e tha t a documents' exemption from disclosure The Tow of Pub lic Rec ord s Act doe s not ren der it automatically privileged for purposes under the pter 119 is l disc ove ry. How eve r, ma teri al that Is exempt from disclosure under Cha civi "extraordinary of 'exceptional necessity" or discoverable only upon a showing 7 EFTA00724191 MAY. 10.2010 4:39PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. 9 390, 392 (Fla. 2d DC A 2003). circumstances? Henderson v. Perez 835 So. 2d g here. Epstein has made no such showin found that plaintiff failed to make a showing In Henderson for example, the Court the aordinary circ umstances sufficient to require of exceptional necessity or extr the home rou gh Cou nty She riffs Offi ce to produce Information including Hillsbo officers during res ses and pho tog rap hs of ten of its active law enforcement add on. 835 So. 2d at 391 -92 (citi ng Dep't of Hwy. Safety & Motor discovery in a civil acti ici Co. , 570 So. 2d 132 2 (Fla . 2d DCA 1990)). The Court rejected Vehicles v. Kre unable to arg um ent s tha t with out the add res ses and photographs he would be plaintiff's esses at the ely inve stig ate the m and atta ck their credibility should they be witn effectiv pare Crews v. or to pro ve any of his clai ms or rebut any defenses. see id; Com trial, g exceptional (M.D. Fla. June 13, 2006) (findin Hensley 2006 WL 1679596, *2 l com pell ing inte res t in iden tifyi ng 911 phone callers related to fata circumstances and ir best t whe re par ties had bee n una ble to find any witnesses, despite the car acciden (finding ; Me n v, Mia mi, 200 3 WL 233 12748, *3 (S.D. Fla. Nov. 14, 2003) efforts) order requiring iona l nec ess ity or extr aor dina ry circumstances warranting court except s, date of arding defendant police officers addres disclosure of exempt information reg be cc -ipleted where service of process could not birth and social security number rch by priv ate inve stig ato r pro duc ed 21 persons with defendant's name). because sea traordinary in Hen der son , the re is no °excepttonal necessity* or *ex As s containing um stan ces " tha t wou ld just ify the disclosure of the cell phone record circ law enforcement s of the Town's active and former otherwise exempt telephone number Reiter min or vict ims of sex ual offe nse s. Detective Recarey and Chief officers and 8 EFTA00724192 MAY. 10.2010 4:39PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. 10 any telephone calls or other testified to the best of their recollection as to enforcement personnel, victims, communications that they may had with other law tigation. Unlike Crews the witnesses and third parties related to the Epstein inves who can likewise be questioned witnesses and victims in this case are the plaintiffs law enforcement personnel. It will regarding any conversations they may have had with any, relate in any way to the Epstein be nearly Impossible to determine which calls, If prevent the disclosure of exempted investigation. Moreover, there is no practical way to order or otherwise. Gannett N.J, information under the circumstances, by protective Super. Ct. App. Div. 2005) (finding partners v. Cty. of tyliddlekex, 877 A.2d 330 (N.J. telephone billing records of county news organization not entitled to disclosure of the rving that public officials and officials under the state's open public records act, obse ality, public records act excepted from persons they talk to have a right to confidenti ber of any person and there was no "public records" the "unlisted telephone num and voluminous request for 12 practical way to prevent disclosure of such numbers, tions). The Court should not risk months worth of records would disrupt agency opera ation on these facts.2 the disclosure of exempt law enforcement and victim inform CONCLUSION ctfully request that the In sum, the Town of Palm Beach Police Officers respe edure 1.280(c) and the Public Court enter an Order pursuant to Florida Rule of Civil Proc quashing the subpoenas duces Records Law denying Epstein's Motion to Compel, rs to 2 Should the Court be inclined to uphold the subpoena and direct any of the Town Police Office requested that such record s be produ ced produce any part of their cell phone records, it is respectfullyof the information in this case to the parties sure only pursuant to a confidentiality order that restricts disclo third partie s neces sary to the litigati on of the case. and those witnesses and 9 EFTA00724193 MAY. 10. 2010 4:39PM JONES FOSTER JOHNSTON & STUBBS NO. 313 P. II tecum to the extent that they seek cell phone records and granting the Town of Palm Beach Police Officers all other relief deemed just and proper under the circumstances. I HEREBY CERTIFY that a true copy of the foregoing instrument has been furnished by facsimile and United States mall to Theodore J. Leopold, Esquire and Spencer T. Kuvin, Esquire, Leopold-Kuvin, PA, 2925 PGA Boulevard, Suite 200, Palm Beach Gardens, Florida 33410; Jack Alan Goldberger, Esquire, Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400, West Palm Beach, Florida 334O1-5O12; and Robert D. Critton, Jr., Esquire, Burman, Critton, Luther & Coleman, LLP, 515 North Flagler Drive, Suite 400, West Palm Beach, Florida 33401, this 10th day of May, 2010. JONES, FOSTER, JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 Post Office Box 3475 West Palm Beach, Florida 33402-3475 Telephone: 561-659-3OOO Facsim 56 -650-0465 By hn C. Randolph Florida Bar . 29000 Joanne M. onnor FloiL' iSial 307mi ROO=13166100315\PLIA17Z6782.DOC 10 EFTA00724194