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Case 9:08-cv-80232-KAM Document 84 Entered on FLSD Docket 05/06/2009 Page 1 of 12 JANE DOE NO. 3, Plaintiff, V. JEFFREY EPSTEIN, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80232-MARRA.JOHNSON ___________ ..,! MOTION TO COMPEL AND/OR IDENTIFY JANE DOE #3 IN THE STYLE OF THIS CASE AND MOTION TO IDENTIFY JANE DOE IN THIRD-PARTY SUBPOENAS FOR PURPOSES OF DISCOVERY, OR ALTERNATIVELY, MOTION TO DISMISS SUA SPONTE, WITH INCORPORATED MEMORANDUM OF LAW 1 Defendant, JEFFREY EPSTEIN ("Epstein" or "Defendant"), by and through his undersigned attorneys, hereby requests that this Court enter an order identifying in the style of this case the complete legal name of the Plaintiff, JANE DOE #3 ("JANE DOE"), to substitute her complete legal name in this case in place of "JANE DOE" and, equally important, allowing Defendant to identify her in various subpoenas that Epstein must serve so Epstein can defend this case or, alternatively, Motion to Dismiss Entire Action Sua Sponte. In support, Mr. Epstein states as follows: I. Motion And Incorporated Memorandum Of Law a. Background 1. On March 5, 2008, Plaintiff, a 20-year-old female, filed this action against Epstein. 1 Several of the discovery responses attached to this Motion and to the companion "Motions to Identify" filed in other related matters are markedly different. Therefore, each requires the court's attention on an individual basis. 1 Case 9:08-cv-80232-KAM Document 84 Entered on FLSD Docket 05/06/2009 Page 2 of 12 2. On February 27, 2009, Plaintiff filed her Second Amended Complaint against Epstein, which alleges three causes of action against him: Count I - Sexual Assault and Battery; Count II - Intentional Infliction of Emotional Distress; and Count Ill - Coercion and Enticement to Sexual Activity in violation of 18 U.S.C. §2422. 3. The Second Amended Complaint appears to raise both Federal and Florida State substantive issues (DE 56). 4. Plaintiff alleges, among other things, that she is entitled to money damages pursuant to 18 U.S.C.A. §2422 and 2255 (in the wherefore clause) and by virtue her claims that Epstein sexually battered her and caused her emotional distress. Plaintiff alleges separate counts against Mr. Epstein, on which he must conduct discovery to defend this case. 5. In particular, JANE DOE claims, in Count I for sexual battery, that she has and will suffer " ... severe and permanent traumatic injuries, including mental, psychological and emotional damages." 1]21, 2nd Am. Comp., DE 56. In Count II for Sexual Battery, plaintiff claims entitlement to recover for " .. . severe mental anguish and pain" 1]27, 2nd Am. Comp., DE 56. In Count Ill for Coercion and Enticement to Sexual Activity in violation of 18 U.S.C. §2422, plaintiff claims entitlement to recover for " ... personal injury, including mental, psychological and emotional damages" 1]33, 2nd Am. Comp., DE 56. Plaintiff also claims entitlement to "punitive damages" and "actual and compensatory damages" and "loss of earning capacity." DE 56. See also Exhibit "A", Interrogatory Response Number 9-10. 2 Case 9:08-cv-80232-KAM Document 84 Entered on FLSD Docket 05/06/2009 Page 3 of 12 6. Epstein has a constitutional due process right to defend himself and to seek the production of information that will assist in his defense of the allegations in the 2nd Amended Complaint. In this case, Plaintiff's counsel objected to Epstein serving subpoenas on Plaintiff's treating physicians and other third parties. Thus, this motion seeks to identify JANE DOE in the style of this case, to identify JANE DOE in various third-party subpoenas for discovery purposes and, alternatively, to dismiss this entire action sua sponte. The undersigned's experience in "Jane Doe" lawsuits is that once a Plaintiff is identified, other individuals come forward in the discovery phase with information which often directly contradicts allegations as to the events and damages. For instance, witnesses may testify that Plaintiff was paid by others for similar sexual acts she claims Mr. Epstein forced upon her or that she willingly participated in certain act(s) that would negate or lessen her damages. This goes directly to Plaintiff's damage claim. 7. Likewise, subpoenas must be issued to third-party treaters and current and former employers, and those subpoenas will seek to obtain records related directly to Plaintiff's claims and her damages (i.e., her claim for severe and permanent traumatic injuries, including mental, psychological and emotional damages" and loss of self-esteem and dignity as referenced above). Cherenfant v. Nationwide Credit. Inc., 2004 WL 5315889 (S.D. Fla. 2004)(order allowing discovery of medical records consistent with Plaintiff's allegations in complaint). This too goes directly to Plaintiff's damage claims. Medical providers, employers, co-employees, etc ... have direct and relevant personal knowledge and 3 Case 9:08-cv-80232-KAM Document 84 Entered on FLSD Docket 05/06/2009 Page 4 of 12 observations regarding damages, i.e., emotional state, activities, self-esteem, etc .... 8. Fed.R.Civ.Pro. 26 allows for broad discovery. Epstein is not required to rely solely on Plaintiff's discovery responses in defending this case, nor is Epstein required by any statute or law to rely only upon what Plaintiff produces in discovery or may obtain from her own medical treaters through her counsel, and to then provide to Epstein only after Plaintiff has reviewed same. In certain related state court actions involving Epstein, the undersigned offered to serve certain subpoenas on the medical treaters and other third-parties with full name, date of birth and Plaintiff's social security number (last four digits), but agreed that the subpoenas filed with the clerk would be redacted. Several attorneys agreed to this procedure in those cases. In Federal Court, subpoenas are not filed with the clerk. Thus, in this matter, the undersigned offered to serve the third-party subpoenas with plaintiff's full name, date of birth and social security number (last four digits) and would agree to redact any identifying information on any documents filed with this court if that ultimately became necessary. As discussed below, Plaintiff's counsel did not agree. Further, Plaintiff's counsel claims a HIPPA complaint protective order is necessary. Such is not the case when a Plaintiff places her mental, emotional, psychological and physical condition at issue. 9. Moreover, when an order from the court is attached to the Subpoena, treaters and other third parties produce the records and show up to the depositions with the records requested because the deponent knows what to 4 Case 9:08-cv-80232-KAM Document 84 Entered on FLSD Docket 05/06/2009 Page 5 of 12 bring by virtue of knowing the identity of the Plaintiff. 10. Epstein's counsel intends to serve and depose witnesses duces tecum. If Epstein is not permitted to identify JANE DOE, how will any deponent know who the parties are and what to bring to the deposition pursuant to the duces tecum? Further, how will Epstein be able to defend the claims. Just like the Plaintiff, Epstein is entitled to due process. 11. While it is within the sound discretion of this court to allow a party to proceed anonymously, Plaintiff should not attempt to utilize that discretion as a shield from legitimate and necessary discovery. Epstein has a fundamental due process right to conduct discovery. b. Motion To Identify JANE DOE In Style Of This Case 12. As discussed below, Epstein has fundamental due process right to defend himself in this civil litigation. While JANE DOE travels under a pseudonym, various newspaper articles identifying Epstein have been released discussing the alleged claims against him. Allowing J