EFTA00317211.pdf

Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 1 of 37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, Plaintiff, CASE NO.: 08-CIV-80119-MARR A/JOHNSON vs. JEFFREY EPSTEIN, Defendant. Related cases: 08-80232, 08-08380, 08-80381, 08-80994, 08-80993, 08-80811, 08-80893, 09-80469, 09-80591, 09-80656, 09-80802, 09-81092 DEFENDANT'S, CONSOLIDATED RULE 4 REVIEW AND APPEAL OF PORTIONS OF THE MAGISTRATE'S ORDERS DATED FEBRUARY 4, 2010 (DE 462), (DE 480) AND APRIL 1, 2010 (DE 513), WITH INCORPORATED OBJECTIONS AND MEMORANDUM OF LAW Defendant, Jeffrey Epstein (hereinafter "Epstein"), by and through his undersigned attorneys, hereby files his Consolidated Rule 4 Review and Appeal of Portions of the Magistrate's Orders (DE 462), (DE 480) and (DE 513) pursuant to Rule 60, Fed.R.Civ.P. Rule 4, Rule 4(c) and Fed. R. Civ. P. 53(e). In support, Epstein states: L Introduction The Fifth Amendment serves as a guarantee against testimonial compulsion and provides, in relevant part, that "[n]o person...shall be compelled in any Criminal Case to be a witness against himself" (DE 242, p.5); see also Edwin v. Price, 778 F.2d 668, 669 (1 1 th Cir. 1985) (citing Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). The privilege is accorded liberal construction in favor of the right and extends not only to answers that would support a criminal conviction, but extends also to those answers which would furnish a link in the chain of evidence EFTA00317211 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 2 of 37 Doe v. Epstein 08-CV80119 Page No. 2 needed to prosecute the claimant for a crime. See Hoffman v. United States, 341 U.S. 479, 486 (1951). Information is protected by the privilege not only if it would support a criminal conviction, but also in those instances where "the responses would merely `provide a lead or clue' to evidence having a tendency to incriminate." &,.g United States v. Neff, 315 F.2d 1235, 1239 (9th Cir.), cent denied, 447 U.S. 925 (1980); Blau v. United States 340 U.S. 159 (1950); SEC v Leach, 156 F.Supp.2d 491, 494 (E.D. PA. 2001). Add new case from my e-mail of yesterday: (Court in Englebrick v Worthington Industries Inc 670 F Supp2d 1048 (CD Cal, 2009) rejected motion to compel in helpful language: "A valid assertion of the privilege does not require an imminent criminal prosecution or investigation: 'The right to assert one's privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution' cite omitted ...a possibility of prosecution exists where the witness has not received a grant of immunity, the statute of limitations has not run, double jeopardy does not apply, and there are no other concrete indications that criminal prosecution is barred. See also Belmonte v Lawson., 750 F. Supp. 735, 739 (ED. Va. 1990X"Courts should avoid engaging in crystal ball forecasts about what a prosecutor may or may not do...). Significantly, these cases have been consolidated for discovery. Therefore, consistent rulings must apply. In making those rulings, this Court must continue to recognize that the allegations in the related cases cannot be forgotten. (&g., sag DE 242, 293). Production of information in one case could provide a link in the chain of evidence used to prosecute Epstein for a crime or provide an indirect link to incriminating evidence in another case and in another jurisdiction. M. and infra. EFTA00317212 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 3 of 37 Doe v. Epstein 08-CV80119 Page No. 3 Moreover, in addition to the testimonial privilege discussed herein, the Fifth Amendment includes an act of production which encompasses circumstances highly relevant to certain of the discovery requests at issue where the act of producing documents in response to a subpoena or production request has a compelled testimonial aspect in that it would constitute an implied admission as to the defendant's possession or control of the requested documents, as to their authenticity, and as to the defendant's selection of them as meeting the requests for production. ate United States v. Hubbell, 530 U.S. 27, 35-36 (2000). Thus, where the existence or location of the requested documents are unknown, or where production would "implicitly authenticate" the requested documents, the act of producing responsive documents is considered testimonial and is protected by the Fifth Amendment. See In re Grand Jury Subpoena, 1 F.3d 87, 93 (2nd Cir. 1993); Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000Xthe "privilege" against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution and also covers those circumstances where the disclosures would not be directly incriminating, but could provide an indirect link to incriminating evidence). In addition, several of the requests outlined below implicate Federal Rules of Evidence 408, 410 and 502, and the confidentiality protections intrinsic to federal tax returns that would be unavailable under 26 U.S.C. 6103 even if a subpoena is served upon the IRS. Furthermore, H. Procedural Background Epstein filed his Motions for Reconsideration or, Alternatively, Rule 4 Appeal, at DE 477 and 488. However, this court entered an order (DE 513) allowing for Consolidated Rule 4 Appeals relative to the above docket entries. EFTA00317213 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 4 of 37 Doe v. Epstein 08-CV80119 Page No. 4 (a) Jane Doe Plaintiff, Jane Doe's Motion to Compel is filed at DE (194). Defendant's Response in Opposition is filed at DE (339), and the arguments set forth therein are incorporated herein by reference as if completely set forth herein as each apply to request numbers 10, 12 and 13. (b) Jane Does 2-8 Plaintiffs, Jane Doe 2-8s' Motion to Compel is filed at DE (333). Defendant's Response in Opposition is filed at DE (390) and the arguments set forth therein are incorporated herein by reference as if completely set forth herein as each apply to request number 1 of Plaintiff's First request to produce Net Worth Discovery. The Request for Production and the responses thereto arc attached as Composite Exhibits "A" and "B". III. The Requests For Production, Argument And Memorandum Of Law a. Jane Doe - Requests Numbers 7, 9 and 10 Request No. 7: All discovery information obtained by you or your attorneys as a result of the exchange of discovery in the State criminal case against you or the Federal investigation against you. Request No. 9: Any documents or other evidentiary materials provided to local, state, or federal law enforcement investigators or local, state or federal prosecutors investigating your sexual activities with minors. Request No. 10: All correspondence between you and your attorneys and state or federal law enforcement or prosecutors (includes, but not limited to, letters to and from the State Attorney's office or any agents thereof). Response to Request Numbers 7, 9 and 10: Defendant is asserting specific legal objections to the production request as well as his U.S. constitutional privileges. I intend to produce all relevant documents regarding this lawsuit, however, my attorneys have counseled me that at the present time I cannot select, authenticate, and produce documents relevant to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to effective representation. Accordingly, I assert my federal constitutional rights under the Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States Constitution. EFTA00317214 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 5 of 37 Doe v. Epstein 08-CV80119 Page No. 5 Drawing an adverse inference under these circumstances would unconstitutionally burden my exercise of my constitutional rights, would be unreasonable, and would therefore violate the Constitution. In addition to and without waiving his constitutional privileges, the information sought is privileged and confidential, and inadmissible pursuant to the terms of the deferred prosecution agreement, Fed. Rule of Evidence 410 and 408, and §90.410, Fla. Stat. Further, the request may include information subject to work product or an attorney-client privilege. It appears there is now a direct conflict with what Jane Doe requests (m Lg., DE 354, p. 3). In short, Plaintiff is fast and loose in her argument regarding what she seeks (i.e., she states in no uncertain terms (DE 354, p.3) that she seeks information that the Federal government gave to Epstein. However, in her Reply to the Response in Opposition, she now seeks everything that the government gave to Epstein's lawyers and what his lawyers gave to the Federal government (i.e., the full breadth of the requests). The far broader ambit of the requests implicates whether the Plaintiff is seeking just the communications provided by USAO to Epstein's counsel or all Epstein's counsel's communications with, g., the USAO, the State Attorneys' Office or any other local, state or Federal law enforcement. If Jane Doe seeks "all" communications, it deeply implicates the work product of Epstein's lawyers. If Plaintiff seeks just the communication provided by the USAO or the State Attorney, it deeply implicates the work product of the USAO and the State Attorney negotiating and communicating with Epstein's counsel which include, but are not limited to, information that resulted in a plea and information that did NOT result in a plea and information that may have resulted in the entering of the Non-Prosecution Agreement ("NPA"). Either way, the requests deeply implicate the protections and policies of FRE 408, 410 and 502 as more fully set forth infra. Before this limitation was made by Plaintiff, Epstein argued in his response in opposition (DE 339, p.7-8) that these requests are the same type requests the court found subject to the Fifth Amendment. With the limitation made by Plaintiff and her counsel in the Reply, the court ruled "(t)hat the earlier requests referenced by Epstein were significantly broader than the narrow EFTA00317215 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 6 of 37 Doe v. Epstein 08-CV80119 Page No. 6 requests at issue here, including for example, a request for all documents 'relating to' the federal non—prosecution agreement, and all documents 'relating to' either the federal or state criminal investigations. These requests would have required Epstein to pick and choose which documents were responsive and in this way force Epstein to use to effectively make 'use of the content his mind,' an action that would undeniably implicate the Fifth Amendment." (DE 462, p.9) Clearly the instant requests are exactly the same type of broad requests this court has already ruled upon. Had the Plaintiff not limited the scope of the requests in her Reply (DE 354, p.3), the court would not have labeled these requests as "narrow" because these requests now seek all information related to the federal non—prosecution agreement and all documents relating to either the federal or state criminal investigations, which clearly require Epstein to effectively make use of the content his mind to determine what is and what is not responsive to these broad requests. As a result of the limitation made by Plaintiff in her Reply (DE 354) and as a result of this court's Order (DE 462), Epstein responded - "[a]s to Request Number 7, Epstein and his attorneys do not have any "discovery information" provided to them by the federal government and [a]s to Request Number 9, Epstein has not been given any evidentiary materials or evidentiary documents by the federal government." (DE 477) Certainly, these responses were not intended to "gild the lily" as Plaintiff contends nor are they misleading. Despite what the interrogatory sought, Plaintff chose to limit same in her Reply to only what the Federal Government gave Epstein, and that is exactly how the Magistrate interpreted same. The responses were made based upon Plaintiff's limitation in what she sought from Epstein and because this court entered an Order based upon that limitation. Had the limitation not been made, neither this court nor Epstein would have been misled down this primrose path. EFTA00317216 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 7 of 37 Doe v. Epstein 08-CV80119 Page No. 7 Nonetheless, Plaintiff now seeks to obtain the full breadth of information sought under request numbers 7, 9 and 10. However, that argument shall meet a short death in that Plaintiff herself limited the scope of the requests in her Reply and failed to timely file her own Rule 4 Appeal after the court entered its order at DE 462, which adopted Plaintiff `s limited scope of the requests (which Plaintiff now wishes to change). See S.D. Fla., Rule 4(a)(1), Mag. J. 2009. If the court made a mistake in adopting the limited scope of the requests (which it did not), Plaintiff should have timely appealed, which she did not. As such, Plaintiff's requested relief in this regard should be denied. Next, the Magistrate's order as to Request No.: 10 must be reversed because it contravenes critical public policy of encouraging resolution of criminal prosecutions without trial and the concomitant understanding that defendants will be considerably more likely to engage in full and frank discussions with the government if they need not fear that statements they or their counsel make to government prosecutors will be used against them to their detriment. The policies behind FRE 408, 410 and 502 provide this court with a basis for sustaining Epstein's objections to Request No.: 10. For instance, the critical importance of plea bargaining to the criminal justice system has long been recognized. "[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Bordenkircher v. Hayes, 434 U.S. 357, 361-62 (1978), quoting Blackledge v. Allison, 431 U.S. 63, 71 (1977). To encourage defendants to participate in the plea negotiation process, rules have developed to prohibit admission into evidence against the defendant of any and all statements he or his counsel acting on his behalf makes to government prosecutors during the plea negotiation process. This confidentiality protection is embodied in both Fed, R. Evid. 410 and Fed. R. Critn. EFTA00317217 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 8 of 37 Doe v. Epstein 08-CV80119 Page No. 8 P. 11(f). While these rules by their express terms refer only to admissibility of evidence, the purposes and policies underlying these rules is instructive in this context, in which a civil plaintiff seeks discovery of documents falling within the scope of these two rules. Rule 410 was created to promote active plea negotiations and plea bargains, which our Supreme Court has acknowledged are "important components of this country's criminal justice system.". . . Our Court of Appeals has held that "in order for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that this statements will later be used against him.". . . Indeed, absent the protection of Rule 410, "the possibility of self-incrimination would discourage defendants from being completely candid and open during plea negotiations." S.E.C. v. Johnson, 534 F.Supp.2d 63, 66-67 (D.D.C. 2008), quoting United States v. Davis, 617 F.2d 677, 683 (D.C.Cir. 1980). See, United States v. MezzanattQ, 513 U.S. 196, 205, 207 (1995)(purpose of the rules is to encourage plea bargaining, and rules "creat[e], in effect, a privilege of the defendant," quoting 2 J. Weinstein & M. Berger, Weinstein's Evidence 1410[05] at 410-43 (1994)); United States v. Barrow, 400 F.3d 109, 116 (2d Cir. 2005X"The underlying purpose of Rule 410 is to promote plea negotiations by permitting defendants to talk to prosecutors without sacrificing their ability to defend themselves if no disposition agreement is reached"); Fed. R. Crim. P. 11, Advisory Committee Notes, 1979 Amendment ("the purpose of Fed. R. Ev. 410 and Fed. R. Crim. P. 11(eX6) [now Rule 11(f)] is to promote the unrestrained candor which produces effective plea discussions")) Additional illustration of the high degree of confidentially accorded settlement negotiations is found in Fed. R. Evid. 408, which precludes the introduction into evidence 2 FRE 410(4) is particularly directed to communications in matters which, like Epstein's, did not result in a plea of guilty to any federal charge. Fla. Stat. §90.410 provides parallel protections in slate criminal matters. Epstein pled guilty to Fla. Stat. 796.07(2)(1), Unlawful to Solicit, Induce, Entice, or Procure Another to Commit Prostitution, Lewdness or Assignation, and Fla. Stat. 796.03, Procuring Person Under Age of 18 For Prostitution. Therefore, in the event this court orders production of said correspondence, then it must first hold an in camera inspection to determine what, if any, documents aro related to the foregoing pleas and what documents are not. Along those same lines, an in camera inspection must be had in an effort to redact any information that may violate third-party privacy rights or information that would implicate Epstein's Fifth Amendment rights. infra. EFTA00317218 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 9 of 37 Doe v. Epstein 08-CV80119 Page No. 9 communications made during settlement negotiations. The purposes underlying Rule 408 are essentially the same as those underlying Fed. R. Crim, P. 11(f) and 410: "to encourage non- litigious solutions to disputes." Reichenbach v. Smith, 528 F.2d 1072, 1074 (11th Cir. 1976). ee ug. Stockman v. Oakcrest Dental Center P.C., 480 F.3d 791, 805 (6th Cir. 2007)("the purpose underlying Rule 408 . . . is the promotion of the public policy favoring the compromise and settlement of disputes that would otherwise be discouraged with the admission of such evidence"); Bankcard America, Inc. v. Universal Bancard Systems. Inc., 203 F.3d 477, 483 (7th Cir. 2000)("Because settlement talks might be chilled if such discussions could later be used as admissions of liability at trial, the rule's purpose is to encourage settlements"); In re A.H. Robins Co.. Inc., 197 B.R. 568, 572 (E.D.Va. 1994)("Rule 408 aims to foster settlement discussions in an individual lawsuit, and therefore insulates the particular parties to a settlement discussion from possible adverse consequences of their frank and open statements"). So crucial is this policy of confidentiality to the functioning of our federal court system that some courts have held that communications falling within the parameters of Rule 408 are covered by a settlement privilege which insulates them not just from admission into evidence but from discovery as well. aLL, tl,g Goodyear Tire & Rubber Co. v. Chiles Power Stumlva Inc., 332 F.3d 976, 979-983 (6th Cir. 2003). Given the powerful and long-standing policy of according confidentiality to settlement negotiations in both the civil and criminal context, civil plaintiffs should, at a minimum, be required to demonstrate real and concrete need for the material. They should not be permitted to rummage through such sensitive documents based on nothing more than a vague and contentless statement that the materials are "likely to lead to the discovery of other admissible evidence." Motion to Compel at 12 n.3, which is all that plaintiff offers as to Request No. 10. This is EFTA00317219 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 10 of 37 Doe v. Epstein 08-CV80119 Page No. 10 particularly so given the reality that parties often take positions or offer potential compromise solutions during plea negotiations which are inconsistent with the litigation strategy they will pursue if the case goes to trial. As one court has explained in the civil context: There exists a strong public interest in favor of secrecy of matters discussed by parties during settlement negotiations. . . . The ability to negotiate and settle a case without trial fosters a more efficient, more cost-effective, and significantly less burdened judicial system. . . . Parties must be able to abandon their adversarial tendencies to some degree. They must be able to make hypothetical concessions, offer creative quid pro quos, and generally make statements that would otherwise belie their litigation efforts. Goodyear Tire, 332 F.3d at 980. The same is no less true in the plea negotiation context particularly where a central component of the discussions and negotiations between counsel for Epstein and counsel for the USAO was to reach an agreement on conditions relating to 18 USC 2255 including certain waivers and other obligations of Epstein's NPA. The plaintiffs have contended that such provisions relating to 2255 are civil in nature, thus squarely implicating FRE 408 protections. The free availability in discovery to civil plaintiffs of communications made during the plea negotiation process has profound potential to chill frank and open communications during that process so crucial to the functioning of the criminal justice system in any criminal case which has potential to become a civil or regulatory matter as well. Such defendants will be loath to be fully forthcoming during plea discussions or communications and indeed, if the potential civil or regulatory consequences are sufficiently severe, may decline to enter into plea negotiations at all, if they must fear that their communications will be made available to civil plaintiffs in discovery, thus entirely defeating both the purpose and spirit of Rules 410 and 11(f). In addition, the communications made during the plea negotiation process contain fact and opinion attorney work product of both Mr. Epstein's attorneys and government attorneys. Particularly given the strong public policy in favor of confidentiality of plea/settlement EFTA00317220 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 11 of 37 Doe v. Epstein 08-CV80119 Page No. 11 negotiations, the disclosure of such information should be treated as falling within the selective waiver provisions of Fed. R. Evid. 502 and not be treated as an open-ended waiver of the attorney-client and work product privileges, and, if the discovery order is upheld as to request 10 a request for an order pursuant to FRE 502(d) mandating that the communications that led to the execution of a Non-Prosecution Agreement and communications regarding its implementation should be, to the extent they involve fact or opinion work product, not disclosed to third parties in civil litigation outside the criminal proceedings to which they relate. FRE 502(D) provides: ". . . a Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court - -in which event disclosure is also not a waiver in any other Federal or State proceeding." The correspondence in question contained what would constitute paradigm opinion work product with the single caveat that the opinions of each counsel, Epstein's and the United States Attorney's were exchanged with each other pursuant to the overall expectation that they were safeguarded from disclosure by the policies of confidentiality that protect communications during settlement and plea negotiations. The requested communications include the views of Epstein's counsel in the criminal case regarding why a federal prosecution was inappropriate, why the federal statutes did not fit the alleged offense conduct, why certain of the alleged victims were not credible. It also includes Epstein's counsel's views on the limits and inapplicability of certain elements of 18 U.S.C. §2255, one of the principal causes of action in the Jane Doe cases. This opinion work-product should not be disclosed when it was incorporated into heartland plea negotiations that are accorded protection under the federal rules of evidence. It is the disclosure of such legal opinions — and not just their admissibility — that should be protected from a civil EFTA00317221 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 12 of 37 Doe v. Epstein 08-CV80119 Page No. 12 discovery request that lacked any statement as to why this information was even necessary to the fair litigation of the civil cases. Concomitantly, to the extent that the request is now limited to communications from the Government to Epstein, see DE 54, pgs 3 and 8, the narrowed request implicates the same concerns for the opinions, the work product, and the expectation of privacy of the United States Attorney or Assistant United States Attorney who authored the many letters received by counsel for Epstein. As such, to the extent that the Court is considering affirming any part of the Magistrate-Judge's opinion allowing request 10 that would result in the required disclosure of communications from the Government counsel to Epstein, that notice be provided to the United States Attorney so they may intervene to protect their opinion work product, assert their rights to confidentiality under FRE 408 and 410, and assert where appropriate their interests in grand jury secrecy and in the privacy rights of their witness who in at least one document are identified. The defendant requests that if the Court were considering allowing the disclosure of any portion of the communications sent by Epstein to the Government which are within the original request for production but apparently not plaintiffs latest filing, DE 354, pg 3, the Court first consider permitting the defendant to provide a privilege log that would identify specific portions of the correspondence that contains the opinion work product of counsel for Epstein and permitting leave to seek an order under FRE 502(d) that would protect such communications from disclosure to third parties such as requested in this matter. If the USAO cannot be compelled to release its investigation(s) and related work-product directly due to the protections of Fed. R. Crim. Pro. 6, Epstein cannot be compelled to disclose same in violation of his constitutional rights? He cannot Rules 408, and 410 all counsel strongly against the discoverability of such documents. The court is requested to reverse the EFTA00317222 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 13 of 37 Doe v. Epstein 08-CV80119 Page No. 13 Magistrate-Judge's order as to paragraph 10. Alternatively, the Court is requested to permit a privilege log that would be filed by Epstein's counsel — and if they so desire the Government — particularizing the prejudice to their work product and to the values otherwise protected by FRE 408 and 410 on a document by document basis. Epstein also continues to maintain that the requested correspondence is protected under the Fifth Amendment, as it could furnish a link in the chain of evidence needed to prosecute him for a crime or provide the federal government with information that provides a lead or clue to evidence having a tendency to incriminate Epstein. infra; Hoffman v. United States, 341 U.S. at 486; United States v. Neff, 315 F.2d at 1239; Blau v. United States, 340 U.S. at 159; and SEC v Leach, 156 F.Supp.2d at 494. As this court has recognized, the threat of criminal prosecution is real and present as Epstein remains under the scrutiny of the USAO, which is explained and/or acknowledged in the Court's Orders (DE 242, p.4 and 462, p.2). As this Court knows, Epstein entered into a Non- Prosecution Agreement ("NPA") with the USAO for the Federal Southern District of Florida . However, the NPA does not provide Epstein with any protection from criminal investigation or prosecution other than in the Southern District of Florida. As the court has acknowledged in its orders (e.g., DE 462), complaints in these related matters allege that Epstein both resided in and allegedly engaged in illegal sexual conduct in districts outside the Southern District of Florida, and that he allegedly lured economically disadvantaged girls to homes other than in Palm Beach. Thus, the fact that there exists a NPA does not mean that Epstein is free from a reasonable fear of future criminal prosecution. In fact, this court acknowledged that "[t]he danger Epstein faces by being forced to testify in this case is substantial and real, and not merely trifling or imaginary as required." (DE 242, p. 10). EFTA00317223 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 14 of 37 Doe v. Epstein 08-CV80119 Page No. 14 As such, in the event Epstein is required to produce information provided to him by the federal government — or provided by Epstein to the Government - that information could provide a link in the chain of evidence needed to prosecute Epstein of a crime outside the protections of the NPA. Given the nature of the allegations, to wit, a scheme and plan of sexual misconduct, this court should find it entirely reasonable for Epstein to assert his Fifth Amendment privilege as to request Number 10, especially since it is broad enough to encompass information that could violate Epstein's Fifth Amendment Privileges. Hubbell, supra. In responding to the request, Epstein would be compelled admit that such documents exist, admit that the documents were in his possession or control, and further admit that the documents produced were authentic. In other words, the very act of production of the category of documents requested would implicitly communicate "statements of fact." as well as authenticate the letters as genuine examples of communications that include disclosures made by Epstein's attorney i.e., his agent on his behalf, Hubbell, supra; Hama, supra. The defendant requests that the Court order that the documents in question are protected by FRE 408 and 410, that if not they should be subject to a "selective waiver" order under FRE 502(d) given their inclusion of attorney opinion and fact work product that was only disclosed in reasonable expectation they would be solely used to further plea and settlement discussions. o the extent this court orders production of any of the requested materials, the information should first be produced in camera to determine what portions of the materials should be redacted to protect the attorneys' mental impressions and to assist the Court in making further determinations as to what information , should be protected by Federal Rules 408, 410, and 502. See supra. Again, as set forth in the Reply attached hereto as Exhibit "B", the USAO and the EFTA00317224 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 15 of 37 Doe v. Epstein 08-CV80119 Page No. 15 Palm Beach State Attorneys' Office should be put on notice that their underlying files are being requested by and through backdoor methods. (b) Plaintiffs' Attorneys Already Have Much Of The Information They Seek Pursuant To This Improver Motion Practice And Have No Demonstrable Need For More Several depositions have occurred over the last 4 weeks wherein it appears Mr. Edwards already has the information he seeks responsive to these requests, which is likely the reason Mr. Edwards has not filed any affidavits supporting the specious arguments set forth in Plaintiff's Motions. As such, there is no substance or factual representations made by Plaintiff to support her argument. Plaintiff is wasting attorney time and judicial resources in her effort to obtain what she already has in her possession. For example, at a deposition of Mr. Epstein on February 17, 2010, the following exchange occurred: Mr. Edwards: The 87-page Palm Beach Police Department incident report where there are numerous underage females describing their interaction with Mr. Epstein at his house. I'm specifically reading from page 41 related to A.H., who was one of the victims he pled guilty to. Mr. Pike: Is that the same document that you're seeking production of, in this same exact case? Mr. Edwards: I don't know what you're talking about. This is something from the state attorneys' file. It is clear from Mr. Edwards's response above (attached as Exhibit "C") that he has the information from the Palm Beach Police Department and the information from the State Attorneys' file. This begs the question — if plaintiff already has the information she seeks, why is Plaintiff wasting valuable attorney time and judicial resources to obtain what is already in hand? Sic also Exhibits "D-1" and "D-2" and "E," a copy of the 89-page incident report marked as an Exhibit by Plaintiff's counsel at Detective Recarey's deposition as well as certain message pads Plaintiff claims was pulled from the residence at 358 Brillo Way. EFTA00317225 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 16 of 37 Doe v. Epstein 08-CV80119 Page No. 16 Moreover, at the deposition of AR on March 15, 2010, the following exchange occurred: Mr. Edwards: Well, at some point in time what's been marked as defense Exhibit "1", you received a grand jury investigation target letter, correct? sit Mr. Edwards: There's another message from 9/11/05 saying "I got a car for," and then the name is blotted out. The State Attorneys' Office blotted the names of minors out sometimes in their file.... sit Once again, Mr. Edwards's response above (attached as Exhibit "F") establishes that he has the information from both the Palm Beach Police Department and the State Attorneys' file. In fact, as argued infra, Mr. Edwards has certain information from the Palm Beach Police Department, which resulted from various alleged "trash pulls" from a residence on Palm Beach (e.g., certain notepads). Finally, at the deposition of Detective Recarey of the Palm Beach Police Department, on March 19, 2010, the following exchange occurred: Mr. Kuvin: Okay. And what were the dates of the surveillance? Witness: [Referencing his Report] It appears she met with members of the B.S.F. unit, Burglary Strike Force.... sss Mr. Kuvin: [Referencing the Report] If we go down to page 40 in your report, first let me back up... . Mr. Kuvin: Okay. So the chain of custody which we have marked as Exhibit 5 shows that all the evidence you had in this case was given to the FBI. . .. aeg Exhibit "G". The undersigned was at Detective Recarey's deposition. Mr. Kuvin and Mr. Edwards had copies of various reports and also had copies of various message pads claimed to be "pulled" from Epstein's trash by the Palm Beach Police Department. See infra. It is clear from the EFTA00317226 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 17 of 37 Doe v. Epstein 08-CV80119 Page No. 17 deposition that opposing counsel has the information from the Palm Beach Police Department and the State Attorneys' file. also, /OA for additional argument. (i) Work-Product - Palm Beach State Attorneys' File Next, as to any information obtained from the State Attorney at any phase (request numbers 801), the State Attorney has not provided anything to Epstein or his attorneys. While the State Attorneys' file was made available for inspection, Jack Goldberger, Epstein's criminal lawyer, went over to the State Attorneys' Office and hand selected information from the file for copying, including certain witness interviews. Egg Exhibit "H" Affidavit of Jack Goldberger. Accordingly, the information hand selected by Mr. Goldberger falls under the work-product doctrine as production of same would reveal Mr. Goldberger's mental impressions, thought processes and strategy relative to the defense of Epstein. Smith v. Florida Power & Light Company 632 Sold 696, 698 (Fla. 3 rd DCA 1994Xeven if individual documents are not work- product, "the selection process itself represents defense counsel's mental impressions and legal opinions as to how the evidence in the documents relates to the issues and the defenses in the litigation"). W. The information simply falls under the "highly protected category of opinion work-product." Id; see also Fla.R.Civ.Pro. 1.280. Also, Counsel for Jane Does 2-8 in the Federal companion cases apparently obtained a copy of the file retained by the Palm Beach State Attorneys' Office. It is reasonably believed that all Plaintiffs' attorneys in this action have extensive materials from the State Attorney and the Palm Beach Police Department pursuant to various public records requests. Certainly, Mr. EFTA00317227 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 18 of 37 Doe v. Epstein 08-CV80119 Page No. 18 Edwards is able make such public records requests or can subpoena the requested information, neither of which would implicate the work product privilege as outlined above. Here, the standard is a showing of a need to obtain the information, and the inability to obtain the substantial equivalent without undue hardship. Metric Engineering, Inc. v. Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003)(To show `need,' a party must present testimony or evidence demonstrating the material requested is critical to the theory of the requestor's case, or to some significant aspect of the case); Ashemimry v. Ba Nafa, 847 So.2d 603 (Fla. 5th DCA 2003). In addition, Florida Rule of Civil Procedure 1.280(b)(3), does allow discovery of fact work product where the requesting party can show need and the inability to obtain the substantial equivalent by other means without undue hardship. Vesta Fire Ins. Corp. v. Figueroa, 821 So.2d 1233. 1234 (Fla. 5th DCA 2002)(the showing of need and undue hardship necessary to overcome the work product immunity must include specific explanations and reasons). Again, Mr. Edwards fails to submit any affidavit or any other document meeting the above criteria. Additionally, this court should consider placing the Palm Beach State Attorney and the USAO on Notice that their investigative files are being requested. Since Plaintiff seeks information given by federal government and the state attorney to Epstein, including correspondence, Epstein reincorporates the arguments set out in his initial Rule 4 Appeal as that information is within the penumbra of the protections of Federal Rules of Evidence 408 and 410. Moreover, despite Plaintiffs contention, Federal Rule of Evidence 410 is applicable because negotiations did not end with a federal plea. Furthermore, Federal Rule of Evidence 408 is applicable given that 18 U.S.C. 2255 is quasi-civil remedy. Clearly, the information sought by Plaintiff has no evidentiary value - given that Plaintiffs have the raw materials and police reports and affidavits resulting from state investigation. Accordingly, there is a chance that the Palm EFTA00317228 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 19 of 37 Doe v. Epstein 08-CV80119 Page No. 19 Beach State Attorney and the USAO may not want to disclose their files for one reason or another. (ii) Third Party Privacy Rights And Judge Jeffrey's Colbath's Order The Magistrate's Order does not consider the privacy rights of other alleged victims. As this Court knows, attached to the NPA is a list which delineates alleged victims. Once the NPA was made public, Judge Colbath, with the agreement of the Palm Beach Post, Brad Edwards, Esq. and Spencer Kuvin, Esq. agreed that the "list" would remain private. As such, Request for Production Numbers 7, 9 and 10 seeks information that may violate others third-party privacy rights in that certain names may be mentioned in correspondence, including those on the "list." As noted in Eisenstadt v. Baird, 405 U.S. 438, 454, 92 S.Ct. 1029, 1038, at fn. 10 (1972): In 5tanley, 394 U.S., at 564, 89 S.Ct, at 1247, the Court stated:`(A)lso fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized man.' [Citations omitted]. The fundamental right of privacy is not only guaranteed under by the Fourteenth Amendment of the United States Constitution, but also under the Constitution of the State of Florida, Art. I, Sect. 23. As summarized by the Florida Supreme Court in Shalom/1 v. State 553 So.2d 148, 150-51 (Fla. 1989): The right of privacy, assured to Florida's citizens, demands that individuals be free from uninvited observation of or interference in those aspects of their lives which fall within the ambit of this zone of privacy unless the intrusion is warranted by the necessity of a compelling state interest. In an opinion which predated the adoption of section 23, the First District aptly characterized the nature of this right. EFTA00317229 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 20 of 37 Doe v. Epstein 08-CV80119 Page No. 20 A fundamental aspect of personhood's integrity is the power to control what we shall reveal about our intimate selves, to whom, and for what purpose. Bryon. Hatless. Schaffer. Reid & Assocs.. Inc. v. State ex rel. Schellenberg. 360 So.2d 83, 92 (Fla. 1st DCA 1978), quashed and remanded on other grounds, 379 So.2d 633 (Fla.1980). Because this power is exercised in varying degrees by differing individuals, the parameters of an individual's privacy can be dictated only by that individual, The central concern is the inviolability of one's own thought, person, and personal action. The inviolability of that right assures its preeminence over "majoritarian sentiment" and thus cannot be universally defined by consensus. (Es pbasis added). Clearly, the nature of the question would require Epstein to produce information that may identify third parties (including alleged victims), which would necessarily thwart such individuals' rights to assert their constitutional right of privacy as guaranteed under the United States and Florida Constitutions. &2e generally Eisenstadt v. Baird, supra at 454-455 (the right encompasses privacy in ones sexual matters and is not limited to the marital relationship). The Magistrate's Order did not address this issue. Federal law provides crime victims with rights similar to those afforded by the Florida constitution which includes, but is not limited to, "the right to reasonable, accurate, and timely notice of any pubic court. . .proceeding involving the crime. . . ," "the right not to be excluded from any public court proceeding. . . ," and "the right to be heard." 15 Fla. Jur.2d Crim.Proc. §1839; Fla. Stat. 960.0021. Based upon the foregoing, any alleged victim that may be identified in any of the requested information must first be notified, which means that this court must, at the very least, conduct an in camera inspection of any and all information to determine which alleged victim must be placed on notice that their identity may be revealed or redact their names in camera. Ste gt,%2 Fla. Stat. §794.03, §794.024 and §794.026. The right to privacy encompasses at least two different kinds of interests, the individual interests of disclosing EFTA00317230 Case 9:08-cv-80119-KAM Document 545 Entered on FLSD Docket 05/12/2010 Page 21 of 37 Doe v. Epstein 08-CV80119 Page No. 21 personal matters and the interest in independence in making certain kinds of important decisions. Favalora v. Sideway, 966 So.2d 895 (Fla. 4th DCA 2008). Accordingly, based on the facts and circumstances of this case, and under applicable law, Defendant's assertion of the protections afforded under the 5th, 6th, and 14th Amendments of the United States Constitution are required to be upheld. In addition, this Court must address t