EFTA01250614.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x IN RE APPLICATION TO QUASH SUBPOENAS TO DAILY NEWS, L.P., No. 10 M8-85 (LMM) AND GEORGE RUSH • x REPLY DECLARATION OF ANNE B. CARROLL Pursuant to 28 U.S.C. § 1746, Anne B. Carroll declares as follows: 1. 1 am V ice President and General Counsel of movant Daily News, L.P., publisher of the New York Daily News (the "Daily News"). I am admitted to practice before this Court 2. I make this Declaration in further support of the motion of the Daily News and Daily News journalist George Rush for an Order pursuant to Fed. IL Civ. Proc. 45(cX3XAXiii) quashing subpoenas ad testificandum and duces iecum served on them by plaintiff Jane Doe in an action pending in the United States District Court for the Southern District ofFlorida captioned Jane Doe v. Jeffrey Epstein, No. 08-cv-80893-1CAM, or in the alternative for a Protective Order pursuant to Fed. IL Civ. Proc. 26(cX1). 3. Annexed hereto as Exhibit A is a true and convect copy ofE & J Gallo Winery v. Encana Energy Servs.. Inc., 33 Med. L. Rptr. 1413 (S.D.N.Y. 2005) (Preska, J.). 4. Annexed hereto as Exhibit B is a true and correct copy of L.W, v. Knox County Bd. ofEduc. 36 Med. L. Rptr. 1721 (E.D. Tenn. 2008). 5. Annexed hereto as Exhibit C is the Supplementary Affidavit of George Rush in this proceeding, sworn to on April 30, 2010. 6. Jane Doe's brief in opposition to Jeffrey Epstein's motion for summary judgment dismissing the federal claims in this action ("Si Opp.") may be found on PACER, S.D. Ha. Civil Docket for Jane Doe v. Jeffrgv Epstein Case # 9:08-cv-$0893-KAM ("Docker)), PP IN. peg EFTA_00089100 EFTA01250614  expressions of confidence in the strength of the evidence in her own case may be found at, ts,. SJ Opp 2 (Doe "has ample evidence that [Epstein] committed federal sex offenses against her"); 11 (Epstein's fraudulent concealment of assets "evidences [his] awareness that he is liable to the girls for substantial sums of money because of his sexual abuse of them," citing Epstein's Mar. 8, 2010. deposition); 12 ("Epstein does not deny that he repeatedly sexually abused Jane Doe when she was a minor"); 35 ("Jane Doe can easily prove her case"). 7. Specific examples given in Doe's opposition to summary judgment of invocations of the 5th Amendment warranting adverse inferences include Epstein's silence in the face of such confrontational Requests for Admission as "[y]ou have committed sexual assault against Plaintiff, a minor," and "[y]ou digitally penetrated Plaintiff when the was a minor," SJ Opp. at 4, and his refusal to answer numerous questions at a Mar. 8, 2010, deposition, id. at 10 & Ex. D. 8. Annexed hereto as Exhibit E is a copy of pertinent pages of the Complaint in Epstein v. Rothstein, Edwards =No. 50 2009 CAO 40800 (Cir. Ct., 15th Jud. Cir., Palm Beach Co.. Dec. 7, 2009), as downloaded from http://www.scribd.comidoc/23947743/121009- epstein. 9. Shortly after receiving service of the subpoenas served on Daily News, L.P., and George Rush which movants seek to quash in this proceeding, I asked plaintiffs counsel Bradley Edwards whether he would withdraw them in exchange for an affidavit from Mr. Rush attesting to the fact that he had interviewed Mr. Epstein. Mr. Edwards said he would not. 10. On Friday, April 30, 2010, I received service of a subpoena from Doe's counsel requiring movant journalist George Rush to appear before this Court on May 4, 2010, at 11:00 a.m., for the purpose of giving testimony in an evidentiary hearing in connection with this matter. A copy of the subpoena is annexed hereto as Exhibit F. 11. On Friday, April 30, 2010,1 emailed the Supplementary Affidavit of -2- EFTA_00089 I01 EFTA01250615 George Rush (Exhibit C hereto) in this proceeding to counsel for plaintiff Doe and asked if, having seen it, they would withdraw the testimonial subpoena to Rush, given that there are no material facts in dispute among the parties to this proceeding. Counsel responded that they would do so only if movants would stipulate to the accuracy of all facts alleged in the subpoenas of Brad- ley Edwards and Michael Fistcn submitted in support of Doe's opposition to movants' motion to quash or for a protective order. I declined. 1 declare under penalty of perjury that the foregoing is true and correct. Executed on May 3, 2010 A7NY-< e...ae Anne B. Carroll (AC 5322) -3- EFTA_00089102 EFTA01250616 EXHIBIT A EFTA_00089103 EFTA01250617 Media Law Keporter Page I of Media Law Reporter'' Source: Media Law Reporter Cases > U.S. District Courts, New York > E&J Gallo Winery v. Encana Energy Services Inc., 33 Med.L.Rptr. 1413 (S.D.N.Y. 2005) 33 Med.L.Rptr. 1413 Eta) Gallo Winery v. Encana Energy Services Inc. U.S. District Court Southern District of New York No. M8-85 January 12, 2005 EEO GALLO WINERY, a California corporation v. ENCANA ENERGY SERVICES INC., a Delaware corporation, f/k/a PANCANADIAN ENERGY SERVICES INC.; ENCANA CORPORATION, a Canadian corporation, f/k/a and successor to PANCANADIAN ENERGY CORPORATION Headnotes NEWSGATHERING [1] Forced disclosure of information — Disclosure of unpublished information — In civil actions (a 60.1003) Forced disdosure of information — Common law privilege (a 60.20) Plaintiff's subpoena seeking documents and testimony from nonparty media entity will be quashed, since information sought is subject to full protection of qualified reporter's privilege, in that nonparty engages in newsgathering activities, information sought involves confidential sources and information, information was gathered with intent to distribute it to public in form of published price indices, and creation of price indices involves subjective editorial judgment, since plaintiff failed to overcome privilege by making sufficient showing that material sought is highly material and critical to its claims, and that it exhausted other available sources of information, and since subpoena is unduly burdensome under Fed. R. Civ. P. 45(c). Case History and Disposition Civil action in which plaintiff issued subpoena seeking documents and testimony from nonparty media entity. On nonparty's motion to quash. Granted. Attorneys Stephen Williams, of Cotchett, Pitre, Simon & McCarthy, Burlingame, Calif., for plaintiff. Allison Gooding, of Gibson Dunn and Crutcher, New York, N.Y., for defendants. Victor A. Kovner, Matthew Leish, and Duffy Carolan, of Davis Wright Tremaine, New York, for nonparty McGraw-Hill Companies. Opinion Text Opinion By: Preska, J.: ORDER Non-party The McGraw-Hill Companies, Inc. ("McGraw-Hill"), by its attorneys, "Victor A. Kovner and Matthew A. Leish, Davis Wright Tremaine UP (Duffy Carolan, Davis Wright Tremaine LIP, of counsel) having moved for an Order quashing a subpoena duces tecum and ad testificandum issued to McGraw-Hill by E&) Gallo Winery ("Gallo") on October 25, 2004 in uto://medialaw.bna.com/medw/disnlaythatch nrint disnlav adin7searrhid=11711717 S/1/1(111 EFTA 00089104 EFTA01250618 iviecna Law keporter Page 2 of connection with the underlying action pending in the Eastern District of California; and The court having considered the Declaration of Larry Foster in Support, dated December 13, 2004, with exhibits; the Declaration of Duffy Carolan in Support, dated December 8, 2004, with exhibits; the Supplemental Declaration of Larry Foster in Support, dated January 6, 2005; the Declaration of Barbara L Lyons in Opposition, dated December 27, 2004; the Declaration of Steven N. Williams Page 1414 in Opposition, dated December 28, 2004, with exhibits; the Request for Judicial Notice submitted in Opposition by Mr. Williams, dated December 28, 2004; the Joinder by Encana defendants in McGraw-Hill's motion; the Declaration of Julie K Buxbaum in Support of the Joinder by Encana, dated December 22, 2004, with exhibits; the Supplemental Confidential Declaration of Mr. Williams in Opposition, dated December 28, 2004, with exhibit; the various Memoranda of taw submitted by McGraw-Hill, Gallo, and the Encana defendants; and argument of counsel; The Court hereby finds as follows: [ 1 ] The Gallo subpoena seeks documents and testimony that are subject to the full protections of the qualified reporter's privilege as recognized in this Circuit. In re Petroleum Products Antitrust Litigation, 680 F.2d 5 [8 Med.L.Rptr. 1525] (2d. Cir. 1982); see also In re Pan Am Corp., 161 B.R. 577 [22 Med.L.Rptr. 1118] (S.D.N.Y. 1993). McGraw-Hill has established that its division Platts is engaged in newsgathering activities in connection with its publication of price indices (also referred to as price assessments); that the subpoenaed documents and testimony involve confidential sources and confidential information; that Platts gathers information from its sources with the intent to distribute it to the public in the form of Its published price indices; and that the creation of the indices involves subjective editorial judgments. Accordingly, to overcome the privilege, Gallo must make a clear and specific allowing that the documents and testimony it seeks are (1) highly material and relevant, (2) necessary or critical to its claims, and (3) not obtainable from other available sources. Gonzales v. National Broad. Co., Inc., 194 F.3d 29 [27 Med.L.Rptr. 2459] (2d Cir. 1999); Krase v. Graco Children's Products, Inc., 79 F.3d 346 [24 Med.L.Rptr. 1599] (2d Cir. 1996). Gallo has failed to make a sufficient showing that the subpoenaed documents and testimony are either highly material, as required to satisfy the first prong of the three-part test, or critical to its claims, as required to satisfy the second prong. Gallo also has failed to show that it has exhausted other available sources of information, Including the Encana defendants, the CFTC, and other energy companies. In particular, because Gallo cannot establish that it has exhausted the deposition process, or that it has completed its litigation efforts to seek documents and testimony from alternative sources, it cannot make a clear and specific showing of exhaustion. Finally, I find that the subpoena is unduly burdensome under Federal Rule of Civil Procedure 45(c). While Gallo has narrowed its subpoena to the Henry Hub and hubs in California, this narrowing does not decrease the burden on McGraw- Hill for the reasons set forth in the Declarations of Mr. Foster. Accordingly, it is hereby ORDERED that McGraw-Hill's motion to quash the subpoena duces tecum and ad testificandum is granted. - End of Case - Contact us at http://www.bna.com/contact/index.html or call 1-800-372-1033 ISSN 1944-0359 Copyright CO 2010, The Bureau of National Affairs, Inc. Reproduction or redistribution, in whole or in part, and in any form, without express written permission, is prohibited except as permitted by the BNA Copyright Policy. http://www.bna.com/corp/index.htmlAV ittp://medialaw.bna.com/medw/displav/batch print display.adOsearchid=11231712 5/3/201( EFTA 00089105 EFTA01250619 EXHIBIT B EFTA_00089106 EFTA01250620 Media Law Reporter Page I of Media Law Reporter® Source: Media Law Reporter Cases > U.S. District Courts, Tennessee > L.W. v. Knox County Board of Education, 36 Med.L.Rptr. 1721 (E.D. Tenn. 2008) 36 Med.L.Rptr. 1721 L.W. v. Knox County Board of Education U.S. District Court Eastern District of Tennessee No. 3:05-CV-274 March 25, 2008 L.W., a minor, by and through his parents SAMUEL and TINA WHITSON v. KNOX COUNTY BOARD OF EDUCATION, et al. Headnotes NEWSGATHERING [1] Forced disclosure of information — Disclosure of unpublished information — In civil actions (►60.1003) Forced disclosure of information — Common law privilege (►60.20) Forced disclosure of information — Statutory privilege ("shield" laws) (►60.25) Given federal claims raised by plaintiffs, nonparty reporter's motion to quash subpoena in civil action must be resolved under federal, and not state, law; motion is granted, even though reportor's privilege does not exist in U.S. Court of Appeals for Sixth Circuit, since, under Fed. R. Civ. P. 26, plaintiffs have failed to show that reporter possesses any unique evidence not addressed during her previous deposition or otherwise available from individuals referenced in article, since plaintiffs have had ample opportunity to obtain information sought, and since burden and expense of proposed discovery outweighs its likely benefit. Case History and Disposition Motion by nonparty reporter to quash subpoena in civil action. Granted. Attorneys Charles W. Pope Jr., of Pope Law Offices, Athens, Tenn.; Heather G. Hacker, Alliance Page 1722 Defense Fund, Folsom, Calif., and Nathan W. Kellum and Jonathan Scruggs, of Alliance Defense Fund - Memphis, Memphis, Tenn., for plaintiffs. Martha H. McCampbell, Office of Knox County Law Director, Knoxville, Tenn.; and Gary M. Prince and P. Alexander Vogel, of O'Neil, Parker & Williamson, Knoxville, for defendants. Opinion Text Opinion By: Guyton, U.S. Magistrate Judge: This civil action is before the Court pursuant to 28 U.S.C. §636(b), the Rules of this Court, and by the Order [Doc. 192) of the Honorable Thomas W. Phillips, United States District Judge, for disposition of non-party Ericka Mellon's Motion to Quash Subpoena and for Protective Order. [Doc. 189] On March 24, 2008, the parties appeared before the Court for a hearing on the instant motion. Attorney Richard Hollow appeared on behalf of Ms. Mellon, attorneys Martha McCampbell and Gary Prince appeared on behalf of the defendants, and attorney Jonathan Scruggs appeared on behalf of the itto://inedialaw.bna.conilmedw/disnlavibatch nrint disnlav adin7cearrhirl=1 1711711 stlnnir EFTA 0(1089107 EFTA01250621 Media Law Reporter Page 2 of plaintiffs. Ms. Mellon moves the Court to quash a deposition subpoena served on her by the plaintiffs, with the deposition set to occur on March 26, 2008, in Houston, Texas. I As grounds, Ms. Mellon states that the plaintiffs seek to depose Ms. Mellon regarding a newspaper article 2 she authored in May, 2005, on matters at issue in this litigation. Ms. Mellon argues that Tennessee's Shield taw protects her from having to testify in this matter, and further argues that, even if Tennessee's Shield Law does not apply, that the deposition should still be quashed under the standards established by Rule 26(b)(2) of the Federal Rules of Civil Procedure. The plaintiffs oppose the motion, arguing that under Rule 501 of the Federal Rules of Evidence, it is federal common law, not Tennessee Law, that controls, and that the Sixth Circuit does not recognize a reportorial privilege. Plaintiffs further argue that under Rule 26, the discovery sought is highly necessary for plaintiffs' case and unavailable from other sources, and thus the deposition should be permitted. 1 Ms. Mellon, formerly a newspaper reporter in Knoxville, currently resides in Houston, where she continues to work as a newspaper reporter. 2 The Court notes, for the sake of reference, that the newspaper article at issue was filed by the plaintiffs in conjunction with their motion for preliminary injunction. [Doc. 21, Exhibit G] [ 1 ] Under Rule 501 of the Federal Rules of Evidence, questions of privilege are generally controlled by federal common law when the court's jurisdiction is based upon a federal question, but state law generally controls when the court is exercising diversity jurisdiction. Fed. R. Evid. 501. In the instant case, the Court is faced with several federal claims, but plaintiff also relies in part on claims under the Tennessee Constitution, thus there is a mix of state and federal claims. The Sixth Circuit has held that, when faced with a combination of federal claims and pendent state law claims, federal common law controls under Rule 501. Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992) ("Since the instant case is a federal question case by virtue of the appellant's section 1983 claim, we hold that the existence of pendent state law claims does not relieve us of our obligation to apply the federal law of privilege."). Given the federal claims raised by the plaintiffs, the Court accordingly finds that the instant motion must be resolved under federal, not state, law. Turning next to the question of whether there is a reportorial privilege in the Sixth Circuit, the Court finds that there is not. The Sixth Circuit has clearly recognized that reporters do not possess a special privilege against being compelled to testify. In re Grand Jury Proceedings, 810 F.2d 580, 584-85 [13 Med.L.Rptr. 2049] (6th Cir. 1987). Rather, the Court must apply the balancing test established by Rule 26. In re DaimlerChrysler AG Securities litigation, 216 F.R.D. 395 (E.D. Mich. 2003) (finding that the Sixth Circuit does not recognize a general reportorial privilege, but quashing a deposition subpoena of a reporter under Rule 26 as unduly burdensome and duplicative). Under Rule 26(b)(2)(C): [t]he frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account Page 1723 the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C). During the motion hearing, defense counsel stated that all of the individuals referenced in the article have been deposed in this matter, and that none of those individuals have refuted the article during their depositions. Additionally, Ms. Mellon's counsel stated that Ms. Mellon was deposed in this matter by the plaintiffs on May 26, 2006, during which Ms. Mellon answered several questions as to the veracity of the article. 3 Ms. Mellon's counsel also stated that the deposition would pose a significant hardship for Ms. Mellon, as it would necessarily require Ms. Mellon to miss work, as well as requiring Ms. Mellon to incur additional expenses associated with an attorney traveling out of state to attend a deposition. 3 A copy of the transcript from Ms. Mellon's May 26, 2006, deposition has been filed. [Doc. 190, Exhibit B] In contrast, the plaintiffs argue that the previous deposition of Ms. Mellon is of no use at trial if the plaintiffs cannot also introduce the underlying newspaper article, and thus that they need to conduct a second deposition in light of the Court's Order precluding the introduction of the newspaper article as an exhibit at trial. The plaintiffs contend that the information they seek from Ms. Mellon cannot be obtained from any other source, and that the information sought is Pccimtial to their itto://medialaw.bna.comimedwidisnlavihatch mint dicrilav arinticearrhiri= I 1911711 Gil/1111A EfTA_000119 I 08 EFTA01250622  Media Law Reporter Page 3 of case. With these facts in mind, the Court turns to the Rule 26 factors. Under the first factor, the Court finds that the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. Specifically, the Court finds that the plaintiffs have failed to show that Ms. Mellon posses any unique evidence not addressed during Ms. Mellon's previous deposition or otherwise available from the individuals referenced in the article. There is no evidence that any of the individuals referenced in the newspaper articles have denied making the statements attributed to them in the article, and thus Ms. Mellon's second deposition would be cumulative to her own previously given deposition and that of the other witnesses. With respect to the second factor, the Court finds that the plaintiffs have had ample opportunity to obtain the information sought. The plaintiffs have previously deposed Ms. Mellon, and had ample opportunity to question her at that time, as well as ample opportunity to depose the individuals referenced in the article. With respect to the third factor, the Court finds that the burden and expense of the proposed discovery outweighs its likely benefit. Given the almost three year period since the article was published, and given the plaintiffs' failure to establish the uniqueness of Ms. Mellon's additional testimony, the Court finds that the likely benefit of this deposition would be small, and that any likely benefit is outweighed by the cost in time and money to Ms. Mellon posed by the deposition. Thus, the Court finds that all of Rule 26 factors weigh in favor of Ms. Mellon, and, accordingly, Ms. Mellon's motion is hereby GRANTED. The deposition of Ms. Mellon scheduled for March 26, 2008, is hereby QUASHED. IT IS SO ORDERED. - End of Case - Contact us at http://www.bna.com/contact/index.html or call 1-800-372.1033 ISSN 1944-0359 Copyright te) 2010, The Bureau of National Affairs, Inc. Reproduction or redistribution, in whole or in part, and in any form, without express written permission, is prohibited except as permitted by the BNA Copyright Policy. http://www.bna.com/corp/index.html#V ittryllmedialaw hnn rnm/mediuddlienlav/katrh nr:nt eiknlen, .Arnenn..-1,:el= I in -11712 CM PIA 1 P EFTA 00089109 EFTA01250623 EXHIBIT C EFTA_00089110 EFTA01250624 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x IN RE APPLICATION TO QUASH SUBPOENAS TO DAILY NEWS, L.P., No. 10 M8-85 (LMM) AND GEORGE RUSH • x SUPPLEMENTARY AFFIDAVIT OF GEORGE RUSH STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) GEORGE RUSH, being duly sworn, deposes and says: 1. I make this affidavit in further support of the motion of Daily News, L.P., and myself to quash subpoenas served on us in this action. 2. My counsel was recently advised by one of plaintiff's attorneys that there is an additional individual -- Michael Fisten, private investigator for Doe's attorney Bradley Edwards -- to whom I described certain aspects of the taped interview with Jeffrey Epstein but whom I did not identify in my prior affidavit. Hearing that refreshed my memory that in fact I did speak to Mr. Fisten about the interview. The attorney's representation that the interview with Mr. Epstein must have occurred prior to October 22, 2009, because my conversation with Mr. Fisten took place on or about that date, is also correct. My statement in my prior affidavit that the interview took place on November 18, 2009, was drawn from an erroneous entry in my Outlook calendar. (Despite a diligent effort, I have been unable to establish the exact date on which the interview with Mr. Epstein took place.) My mistakes in failing to recall the discussion six months ago with Mr. Fisten (which in my memory became conflated with my conversations with Mr. Edwards) and in giving the wrong date for the interview were wholly inadvertent and by no means were, as EFTA_00089111 EFTA01250625 Doe's lawyers suggest in their opposition papers to this motion, intentional falsities. 3. Although I do not have a present memory of every item we discussed concerning the interview, I cannot dispute the subject matters that Fisten and Edwards say in their affidavits were covered, because most of them do at least roughly correspond to parts of the content of the interview. There are, however, additional matters discussed in the interview that plaintiff does not allege were disclosed to her litigation team and that have little or no relevance to this case. 4. I do dispute both men's characterization of a number of matters discussed, however. As this Court will be able to confirm if it does an in camera review of the recording, Edwards' and Fisten's accounts of what I allegedly told them -- or what is allegedly on the tape - - are off the mark or simply untrue in several important respects. Most prominently, Mr. Epstein did not state on the tape either that "he may have come too close to the line" (Edwards Aff't ¶ 13) or that "the only thing he might have done wrong was to maybe cross the line a little too closely" (Fisten Afrt ¶ 7). 5. Mr. Epstein did not make a "damning admission" during the interview about Jane Doe (or any other woman). (Doe Opp. Br. at 1, 20.) In fact, he made no reference whatsoever to Jane Doe, the plaintiff in this case. Therefore, plaintiff's allegation that the tape "is the only direct evidence in existence or available to Jane Doe to prove what Epstein thinks about what he did to her" (Opp. Br. at 22-23) is untrue. 6. As I stated in my prior affidavit, in my meeting with my three sources for whom I played a short segment of the interview tape in the process of an exchange of information to assist my reporting, there was an agreement that the contents of the interview were to be held in confidence. Plaintiff Jane Doe does not contest this. In addition, I have since learned from one of those three sources that in fact he was not present in the room when the recording was played -2 - EFTA_00089112 EFTA01250626 and heard none of it. He has expressed a willingness to submit an affidavit to that effect in this proceeding, should the Court find that appropriate or necessary. 7. I reiterate that the disclosures I made about the contents of the tape were solely in the context of seeking information from sources in the course of my reporting. Reporters doing investigative journalism customarily use information given to them by one side in a dispute as a basis for questions aimed at testing the veracity of that information and drawing out the positions of the other side, as I did in this case. I do not view my having used certain information gained during the Epstein interview in this way to be a waiver of the essential confidentiality of the interview because I did not intend to, and did not, publish the information imparted to me by Mr. Epstein during the interview. Mr. Edwards' bald statement that he and my other sources with whom I spoke about the tape "were not sources in the tradition [sic] sense of the word," but rather individuals with whom I was "simply chatting" (Edwards Afft ¶ 23) fundamentally misunderstands how I and reporters generally gather information. 8. While it is correct that, in response to Mr. Fisten's request for a copy of the tape, I said that I would consider doing that but needed to check with the newspaper's lawyer (Fisten Afft ¶ 10), in fact I never intended to give him a copy, never discussed the issue with the newspaper's lawyer, and never gave him a copy, as he confirms. 9. The statements by Mr. Fisten that I told him that I had "compiled very negative information on Epstein concerning his exploits with underage girls and how he eluded the justice system" and that I presented the story to my publisher, "who killed [it]" (Fisten Afft ¶ 6), is false: I never represented that I had gathered any information about Mr. Epstein that was not a matter of public record, and the Daily News publisher did not "kill" my story -- in fact my article about the Epstein case was subsequently published in the paper. Besides being wrong, Mr. -3- EFTA_00089113 EFTA01250627 Fisten's statements are also gratuitous because they have no bearing at all on the issues before this Court. 10. There is no question that the subpoenas in this case are oppressive and highly burdensome to the Daily News and to me as a reporter. Forcing me to testify and to give up the tape of my off-the-record interview would compromise my reporting by deterring other sources from speaking to me out of fear that they will become involved in third-party litigations and force me to change the way I go about my work; for example, I would no longer keep newsga- thering materials important to my work, and I know I would have to think twice before taking on reporting projects that involve civil litigations, which up to now I have done frequently. Such subpoenas against the press in aid of private disputes, seeking information that offers, in this case, at best marginal support, would place extraordinary and undue time demands on myself and other reporters and impose heavy financial costs on newspapers seeking to protect their reporting at a time when the industry is struggling. Sworn to before me this slit' day of April, 2010 Notary Public NotararnaMIA E. TORRE Y Public, State et pj No. On-062195r York Qualified in New Commission Eames rockcount, Math 29. t i4 -4- EFTA_00089114 EFTA01250628 EXHIBIT D EFTA_00089115 EFTA01250629  Case 9:08-cv-80893-KAM Document 140-1 Entered on FLSD Docket 04/13/2010 Page 1 of 29 Page 527 1 times you went to Mr. Epstein's home? 2 A. I don't know. Like 17. 3 Q. And I think you testified you never took 4 anyone to Mr. Epstein's home, correct? 5 A. Yes. 6 Q. That's correct? 7 A. Yes. 8 Q. I asked you a little bit, I asked you at 9 your last deposition what occurred at the first time 10 that you went to Mr. Epstein's home. And whatever 11 you said will be obviously on the record, so it will 12 be there. But I want to bring you back to that time 13 so I can ask some follow-up questions. 14 It's my recollection, correct me if I'm 15 wrong, please, is that when you went to 16 Mr. Epstein's home was the one who took you, 17 correct? 18 A. Yes. 19 Q. And it was your testimony that when you, 20 at some point during the time you were in 21 Mr. Epstein's home the first time, you took off your 22 clothes in conjunction -- 23 A. Yes. 24 Q. -- with correct? 25 A. Yes. (561) 832-7500 PROSE COURT REPORTING AGENCY, INC. (561) 832-7506 Electronically signed by arable hopkins (601451.9762934) Electronically signed by coigne havens (601461.976.2934) Electronically signed by Cynthia hosiers (601451.9762934) b83133004360.4069-a7cs-e6b7460d071: EFTA 00089116 EFTA01250630 EXHIBIT E EFTA_00089 1 17 EFTA01250631  IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA JEFFREY EPSTEIN, Complex Litigation, Fla. R. Civ. Pro. 1.201 CASE NO. Plaintiff, 50 2000 ao it 03 M11030048 v. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and COPY individually, RECEIVED FOR FILING Defendants. DEC e t 2008 emAnQNitgUDK COMPLAINT GUM% a COMPTROLOR PIVI&ON Plaintiff, JEFFREY EPSTEIN, (hereinafter 'EPSTEIN"), by and through his undersigned attorneys, files this action against Defendants, SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, an individually. Accordingly, EPSTEIN states: SUMMARY OF ACTION Attorney Scott Rothstein aided by other lawyers and employees at the firm of Rothstein, Rosenfeldt, and Adler, P.A. for personal greed and enrichment, in betrayal of the ethical, legal and fiduciary duties to their own clients and professional obligations to the administration of justice, deliberately engaged in a pattern of racketeering that involved a staggering series of gravely serious obstructions of justice, actionable frauds, and the orchestration and conducting of egregious civil litigation abuses that resulted in profoundly serious injury to Jeffrey Epstein one of several targets of their misconduct EFTA_000891 18 EFTA01250632 Epstein v. RRA. et al. Page 2 and others. Rothstein and RRA's fraud had no boundary; Rothstein and his co- conspirators forged Federal court orders and opinions. Amongst the violations of law that are the subject of this lawsuit are the marketing of non-existent Epstein settlements and the sanctioning of a series of depositions that were unrelated to any principled litigation purpose but instead designed to discover extraneous private information about Epstein or his personal and business associates (including well-known public figures) in order to defraud investors and support extortionate demands for payment from Epstein. The misconduct featured the filing of legal motions and the pursuit of a civil litigation strategy that was unrelated to the merits or value of their clients' cases and, instead, had as its improper purpose the furthering of Rothstein's misrepresentations and deceit to third party investors. As a result, Epstein was subject to abusive investigatory tactics, unprincipled media attacks, and unsupportable legal filings. This lawsuit is filed and will be vigorously pursued against all these defendants. The Rothstein racketeering enterprise endeavored to compromise the core values of both state and federal justice systems in South Florida and to vindicate the hardworking and honest lawyers and their clients who were adversely affected by the misconduct that is the subject of this Complaint. Plaintiff reserves the right to add additional defendants — co-conspirators as the facts and evidence is developed. GENERAL ALLEGATONS 1. This is an action for damages in excess of $15,000.00, exclusive costs, interest, and attorneys' fees. EFTA_00089 I 19 EFTA01250633 Epstein v. RRA, et al. Page 15 40. EDWARDS filed amended answers to interrogatories in the state court matters, and and listed additional high profile witnesses that would allegedly be called at trial, including, but not limited to: (i) Bill Richardson (Governor of New Mexico, formerly U.S. Representative and Ambassador to the United Nations); and (ii) Any and all persons having knowledge of EPSTEIN'S charitable, political or other donations;2 41. The sole purpose of the scheduling of these depositions or listing high profile friends/acquaintances as potential witnesses was, again, to "pump' the cases to investors. There is no evidence to date that any of these individuals had or have any knowledge regarding RRA's Civil Actions. 42. In furtherance of their illegal and fraudulent scheme against EPSTEIN, ROTHSTEIN, EDWARDS (who either know or should have known) and, at times in her Civil Action against EPSTEIN: a) Included claims for damages in Jane Doe's federal action in excess of $50,000,000.00 rather than simply alleging the jurisdictional limits. b) Organized a Jane Doe TV media interview without any legitimate legal purpose other than to "pump" the federal case for potential 2 These high-profile celebrity 'purported' witnesses have no personal knowledge regarding the facts on these 'Three Cases", but were being contacted, subpoenaed or listed to harass and intimidate them and Epstein, and to add 'star appeal to the marketing effort of the Ponzi scheme. EFTA 00089120 EFTA01250634 Epstein v. RRA, et at. Page 16 investors or to prejudice Epstein's right to a fair trial in Palm Beach County. c) EDWARDS, Berger and Russell Adler (another named partner in RRA) all attended EPSTEIN's deposition. At that time, outrageous questions were asked of EPSTEIN which had no bearing on the case, but so that the video and questions could be shown to investors. d) Conducted and attempted to conduct completely irrelevant discovery unrelated to the claims in or subject matter of the Civil Actions for the purpose of harassing and embarrassing witnesses and EPSTEIN and causing EPSTEIN to spend tens of thousands of dollars in unnecessary attorneys' fees and costs defending what appeared to be discovery related to the Civil Actions but was entirely related to the furtherance of the Ponzi scheme. e) After EDWARDS was recruited and joined RRA in the spring of 2009, the tone and tenor of rhetoric directed to cases against EPSTEIN used by Attorney EDWARDS and Berger changed dramatically in addressing the court on various motions from being substantive on the facts pled to ridiculously inflammatory and sound-bite rich such as the July 31, 2009, transcript when EDWARDS stated to the Court in 'What the evidence is really going to show is that Mr. Epstein — at least dating back as EFTA_00089 I 21 EFTA01250635 Epstein v. RRA, et al. Page 17 far as our investigation and resources have permitted, back to 1997 or '98 — has every single day of his life, made an attempt to sexually abuse children. We're not talking about five, we're not talking about 20, we're not talking about 100, we're not talking about 400, which, I believe, is the number known to law enforcement, we are talking about thousands of children. . . and it is through a very intricate and complicated system that he devised where he has as many as 20 people working underneath him that he is paying well to schedule these appointments, to locate these girls." 0 As an example, EDWARDS filed an unsupportable and legally deficient Motion for Injunction Restraining Fraudulent Transfer of Assets, Appointment of a Receiver to Take Charge of Property of Epstein, and to Post a $15 million Bond to Secure Potential Judgment, in Jane Doe v. Epstein, Case No. 08-CV-80893- Marra/Johnson. The motion was reported in the press as was the ultimate goal (i.e., to "pump" the cases for investor following). However, the Court found Plaintiffs motion entirely devoid of evidence . . . a and denied the motion in toto. g) ROTHSTEIN told investors he had another 52 females that he represented, and that Epstein had offered $200 million to resolve, EFTA 00089122 EFTA01250636 Epstein v. RRA, et al. Page 18 million, but that he could settle, confidently, these cases for $500 separate and apart from his legal fees. should have known h) ROTHSTEIN and the Litigation Team knew or al value that their three (3) filed cases were weak and had minim for the following reasons: (I) III- testified she never had any type of sex with Epstein; worked at numerous strip dubs; is an admitted prostitute and call girl; has a history of illegal drug use (pot, painkillers, Xanax, Ecstasy); and continually asserted the 5th Amendment during her depositions in order to avoid answering