EFTA01191873.pdf

Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 1 of 40 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 9:08-cv-80736-KAM JANE DOE #1 and JANE DOE #2, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. PLAINTIFFS RESPONSE TO MOTION FOR LIMITED INTERVENTION BY ALAN M. DERS HON rrz COME NOW petitioners Jane Doe No. 1 and Jane Doe 2, as well as movants Jane Doe No. 3 and Jane Doe No. 4 ("the victims"), to respond in opposition to Mr. Dershowitz's motion for limited intervention (DE 282). Dershowitz moves to intervene to strike a proffer made by Jane Doe No. 3 of facts that support her pending motion to join this action. The Court should deny the motion. Dershowitz has not established any direct interest in this Crime Victims' Rights Act (CVRA) action that would entitle him to intervene as of right under Fed. R. Civ. P. 24(a). Nor has he nrt Rule 24(b)'s standards for discretionary intervention for four reasons: First, Dershowitz has another forum in which to litigate and defend his reputational interests — a pending defamation action regarding this very case; second, Dershowitz (and other persons Jane Doe No. 3 specifically alleged abused her) have not availed themselves of other opportunities to defend their reputational interests; third, Dershowitz lacks any basis to strike allegations that are directly relevant to pending issues in this case; and fourth and finally, Jane Doe No. 3 attests in a As promised in their motion to join (DE 280), Jane Doe No. 3 and Jane Doe No. 4 do not seek to expand the number of pleadings filed in this case. If allowed to join this action, they would simply support the pleadings already being filed by Jane Doe No. I and Jane Doe No. 2 — including this opposition. EFTA01191873 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 2 of 40 sworn affidavit (attached as Exhibit 1) that all her allegations are true — an affidavit consistent with compelling corroborating evidence. BACKGROUND AND COURSE OF PROCEEDINGS Because this case has been proceeding for more than six-and-a-half years, it is useful to summarize some of the events pertinent to Dershowitz's intervention motion and Jane Doe No. 3's related and pending motion for joinder. As the Court is aware, on July 7, 2008, a young woman identified as Jane Doe No. I filed an emergency petition to enforce her rights under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771, alleging that the Government had failed to provide her rights with regard to a plea arrangement it was pursuing with Jeffrey Epstein. The Court rapidly held a hearing. During that hearing, victim's counsel (having previously made a proffer of the relevant circumstances to Government counsel) orally moved to have Jane Doe No. 2 added into the case as another "victim" under the CVRA. Government counsel had no objection to adding her to the case, apparently believing that, in light of the sexual abuse perpetrated against her, she met the "victim" definition in the statute. DE 15 (Tr. July 11. 2008) at 14. The Court then instructed the parties to attempt to reach a stipulated set of facts. Over the next several years, the Government took conflicting positions on whether it would stipulate to facts provided by Jane Doe No. 1 and Jane Do. 2, ultimately refusing to stipulate to any facts. See generally DE 225-1 at 2-4. Unable to obtain stipulations by the Government, in 2011 the victims filed a summary judgment motion alleging 53 proposed undisputed facts (DE 48), along with a motion to have the Court accept those facts because of the Government's failure to contest them (DE 49). On September 26, 2011, the Court allowed the case to move forward. DE 99. The Court, however, declined to accept victims' argument that it should simply accept their facts 2 EFTA01191874 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 3 of 40 because of the Government's failure to contest their facts, directing instead that discovery should proceed. Id. at 11. In light of the Court's direction, on October 11, 2011, the victims filed discovery requests with the Government, including requests specifically seeking information about Dershowitz, Prince Andrew, and others. Further efforts from the Government to avoid any discovery followed (see generally DE 225-1 at 4-5),2 ultimately leading to a further Court ruling in June 2013 that the Government should produce documents. DE 189. The Government then produced about 1,500 pages of irrelevant materials to the victims (DE 225-I at 5), while simultaneously submitting 14,825 pages of relevant materials under seal to the Court. The Government claimed that these pages were "privileged" for various reasons, attaching an abbreviated privilege log. Jane Doe No. I and Jane No. 2 objected to those claims of privilege, see generally DE 225 and DE 265, and also to the Government's failure to specify in its privilege log the names of all the persons involved in the materials (DE 265 at 1-2). These issues remain pending today.3 In the summer of 2014, undersigned counsel for Jane Doe No. 1 and Jane Doe No. 2 contacted Government counsel to request their agreement to add an additional victim to this case: a young woman Jeffrey Epstein sexual abused when she was under age. On August 20, 2014, counsel sent a letter to U.S. Attorney Wilfredo Ferrer requesting the Government's consent to a stipulated motion to simply add her into the case (as had been done earlier with Jane Doe No. 2). Counsel attached a draft proposed motion that would have blandly recounted that she was similarly situated to Jane Doe No. 1 and Jane Doe No. 2. See Exhibit 2. The proposed motion 2 Jeffrey Epstein also attempted to block discovery of materials in this case, leading to an Eleventh Circuit ruling that the victims' discovery efforts were proper. Doe v. Epstein, 749 F.3d 999 (11th Cr. 2014). 3 Remarkably, even though the Court directed the Government to begin producing discovery in June 2013, the Government has yet to finish that production some 19 months later. 3 EFTA01191875 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 4 of 40 did not include any of the facts surrounding her abuse, relying instead on a stipulation to secure the Court's anticipated approval. Three months later, having received no response from the Government, victims' counsel sent an additional letter to Mr. Ferrer, requesting agreement to add an additional victim to the case — a young woman identified in current pleadings as Jane Doe No. 34: Dear Mr. Ferrer: I sent you a letter in August requesting your office's stipulation to our adding Jane Doe #[4] in this case. Unfortunately, we did not receive a response from your office. We are hopeful that your lack of a response was simple oversight. In addition to following up on the August letter, we are now requesting your Stipulation to the adding of Jane Doe #[3] as well. Her true name is [redacted].... As we expressed in our personal meetings a couple years ago, we don't understand the tactical decision to be adversarial to victims of known sexual abuse on every point in this litigation. Now that many of those issues we discussed have been resolved in our favor, it seems to make even more sense to avoid engaging in unnecessary battles that could only serve the purpose of delaying the victims' rights to have this case resolved on its merits. As I indicated in my August letter requesting your stipulation to the adding of Jane Doe #[4], adding Jane Doe #[3] will also not delay matters, so long as we can stipulate to her being added. Without a stipulation, we foresee litigation over this point, which will produce nothing but additional delay — and further question about your Office's commitment to full protection of victims' rights under the Crime Victims Rights Act. Your office is very familiar with [redacted] and her circumstance. She was sexually trafficked and abused by Mr. Epstein (and others at the direction of Mr. Epstein) not only in this jurisdiction but throughout the United States and beyond.... . . . [E]ven if you were to object and prevail on the motion to add her to the current litigation, the only consequence would be that Ms. [name redacted] would then file a separate CVRA lawsuit, something she is entitled to do because the CVRA contains no time limit. . . .We have, throughout this case, consciously avoided filing anything that would unnecessarily cast your office in a bad light, and it is again with that in mind that we request your stipulation here. We need this stipulation by December 10, 2014 to avoid delaying any other aspects of this case. We will not file any pleadings on this subject before that date. 4 In the letter to Mr. Ferrer, the woman identified in current court pleadings as Jane No. 3 is referred to as "Jane Doe No. 4." For consistency with the court pleadings, the designations in correspondence have been modified here — as indicated by brackets — to track the current designation in the pleadings. 4 EFTA01191876 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 5 of 40 See Exhibit 3. Weeks went by and the Government — once again -- did not respond to counsel's request for a stipulation. This prompted a further email from counsel to the AUSA's handling this matter to inquire about the status of request: When we spoke a few months ago, I told you that we represented [Jane Doe No. 3] and were considering adding her to this suit. At the time of our call we asked if you would agree to our adding her, and I understood that you would have to check with others. Consequently, I sent a couple of letters to Mr. Ferrer that I have attached to this email. I was hoping for a response letting ire know that the Office would not oppose the amendments adding Doe 3 and 4... . I realize our 11/19 letter asked for a response by the 10th. However, I was hoping you could give me some indication whether we will get an answer before the 10th (and perhaps what that answer will be), because if there will not be an agreement to adding these Plaintiffs then I want to get the Motion prepared. See Exhibit 4; see also Exhibit 5 (short response regarding trying to get an answer). On December 10, 2014, despite having had four months to provide a position, the Government responded by email to counsel that it was seeking more time, indicating that the Government understood that victims' counsel might need to file a motion with the court on the matter immediately: "The U.S. Attorney is on travel and I do not have an answer for you on whether the government will agree to the addition of two new petitioners. I appreciate you not filing your motion until December [15], 2014. If you need to file the motion, we understand. Thanks." See Exhibit 6. Rather than file a motion immediately, victims' counsel waited and continued to press the Government for a stipulation. See Exhibits 7, 8, and 9. Finally, on December 23, 2014 — more than four months after the initial request for a stipulated joinder into the case — the Government tersely indicated its objection, without indicating any reason: "Our position is that we oppose adding new petitioners at this stage of the litigation." See Exhibit 10. 5 EFTA01191877 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 6 of 40 Because the Govemment now contested the joinder motion, undersigned counsel prepared a more detailed pleading explaining the justification for granting the motion. One week after receiving the Government's objection, on December 30, 2014, Jane Doe No. 3 and Jane Doe No. 4 filed a motion (and later a corrected motion) seeking to join the case. DE 279 and DE 280.5 Uncertain as to the basis for the Government's objection, the notion briefly proffered the circumstances of Jane Doe No. 3 and Jane Doe No. 4 that would qualify them as "victims" eligible to assert rights under the CVRA. See 18 U.S.C. 3771(e) ("For the purposes of this chapter, the term `crime victim' meant a person directly and proximately harmed as a result of the commission of federal offense . . . ."). With regard to Jane Doe No. 3, the notion indicated that when she was a minor, Jeffrey Epstein had trafficked her to Dershowitz and Prince Andrew (among others) for sexual purposes. Jane Doe No. 3 stated that she was prepared to prove her proffer. See DE 280 at 3 ("If allowed to join this action, Jane Doe No. 3 would prove the following .... "). The motion also provided specific reasons why Jane Doe No. 3's participation was relevant to the case, including the pending discovery issues regarding Dershowitz and Prince Andrew. DE 280 at 9-10 (explaining several reasons participation of new victims was relevant to existing issues). After the motion was filed, various news organizations published articles about it. Dershowitz also made numerous media statements about the filing, including calling Jane Doe No. 3 - a serial liar" who "has lied through her teeth about many world leaders." http://www.enn.corn/2015/01/06/usidershowitz-sex-allegation/. Dershowitz also repeatedly Dershowitz argues that Jane Doe No. 3 violated Local Rule 15.1 by failing to attach a proposed amended complaint. DE 282 at 2. But Jane Doe No. 3 was simply following the same approach that Jane Doe No. 2 had taken earlier, by filing a motion to join rather than a proposed amendment to pleadings. 6 EFTA01191878 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 7 of 40 called undersigned legal counsel for Jane Doe No. 3 "two sleazy, unprofessional, disbarable lawyers." Id. On January 5, 2015, Dershowitz filed the pending motion to intervene. DE 282. DISCUSSION Dershowitz's motion to intervene relies on Fed. R. Civ. P. 24(a) (mandatory intervention) and 24(b) (permissive intervention). Neither argument for intervention is well-founded. L DERSHOWITZ'S ALLEGED "REPUTATIONAL" INTERESTS DO NOT SATISFY RULE 24(A)'S REQUIREMENTS FOR INTERVENTION AS OF RIGHT. Dershowitz first claims that he meets Rule 24(a)'s requirements for mandatory intervention. Rule 24(a) requires that the Court allow a person to intervene in a case if that person "claims an interest relating to the property or transaction that is the subject of that action and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect his interest, unless existing parties adequately represent that interest." Dershowitz contends he meets Rule 24(a)'s requirements because he has a "reputational" interest in the matter, specifically an interest in contesting Jane Doe No. 3's allegation that Jeffrey Epstein trafficked her to Dershowitz for sexual purposes. Numerous courts have declined to allow a mere "reputational" interest to justify mandatory intervention. For example, Calloway v. Westinghouse Elec. Corp., 115 F.R.D. 73 (M.D. Ga. 1987), denied a motion to intervene where the alleged interest was a doctor's "own reputation and academic credibility." Id. at 74. The court denied intervention because "a witness' interest in his reputation alone . . . does not constitute the required 'interest relating to the property or transaction which is the subject of the present action' necessary to allow intervention as a matter of right. To find otherwise would invite intervention every ti me a court is required to determine the credibility of a witness." Id. Similarly, Flynn v. Hubbard, 82 F.2d 7 EFTA01191879 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 8 of 40 1084, 1093 (1st Cir. 1986), affirmed the denial of the Church of Scientology's request for intervention in part because "the church "merely clairn[ed] a generalized injury to reputation [that] identifies no legal detriment arising from a default judgment against Hubbard." Id. at 1093 (Coffin, J., concurring). See also Edmondson v. State of Neb. a rel. Meyer, 383 F.2d 123, (8th Cir. 1967) ("The mere fact that Edmondson's reputation is thereby injured is not enough [to support intervention]. Edmondson's representative has pointed to no legal detriment flowing from this possible finding of the trial court, and we can find none."); Forsyth. County v. U.S. Army Corps of Engineers, No. 2:08-CV-0126-RWS, 2009 WL 1312511, at *2 (N.D. Ga. May 8, 2009) (denying intervention because an "interest in protecting its reputation . . . is not direct, substantive, or derived from a legal right").6 The Court has previously considered — and rejected — a similar effort to intervene on a "reputational" claim. That claim was made by Bruce Reinhart who — like Dershowitz — had previously represented Jeffrey Epstein's interests in related litigation. Reinhart moved to intervene in this case to contest the victims' allegations that Reinhart (a former prosecutor in the U.S. Attorney's Office investigating Epstein) received confidential, non-public information about the investigation. The victims specifically alleged that Reinhart had "joined Epstein's payroll shortly after important decisions were made limiting Epstein's criminal liability" and that Reinhart had gone on to improperly represent Epstein-related witnesses in various civil suits. See DE 99 at 12 (discussing DE 48 at 23). Reinhart filed a sworn affidavit admitting that he had represented Epstein-related clients, but claiming that he did not possess any such confidential information. He sought to intervene to challenge the victims' arguments. 6 Dershowitz cites dicta in Saclunan v. Liggett Grp., Inc., 167 F.R.D. 6, 20-21 (E.D.N.Y. 1996), that a reputational interest can support intervention. But Sac/anon did not analyze the issue; rather it simply cited another case, Penthouse Int'l, Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, 373, 392 (2d Cir. 1981), which in turn contains no analysis of the issue or any such holding 8 EFTA01191880 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 9 of 40 After a hearing, the Court denied Reinhart's motion, finding that his interest in litigating the validity of the victims' allegations was too attenuated to support intervention. DE 99 at 13.7 The Court's rationale applies equally here and should lead the Court to deny Dershowitz's motion. Dershowitz claims that his situation is distinguishable in view of how "harmful" (DE 282 at 6) he believes the current allegations are. But the degree of indignation at allegations is not a sound basis for allowing intervention. As the Court previously explained, it "cannot permit anyone slighted by allegations in court pleadings to intervene and conduct mini-trials to vindicate their reputation." DE 99 at 13. Dershowitz does have an alternative ground he could try to advance for intervention. As Jane Doe No. 3 pointed out in her motion to join the case, Dershowitz personally helped to negotiate the non-prosecution agreement (NPA) at issue in this case, which bars his prosecution in the Southern District of Florida as a "potential co-conspirator of Epstein." DE 280 at 4 (quoting NPA at 5). The Court has previously allowed Epstein to prospectively intervene in any proceedings that might involve invalidating the NPA. DE 246. Dershowitz can make a similar motion if he identifies himself as a potential co-conspirator involved in crimes covered by the NPA. But lacking such an allegation, his existing motion does not allege any concrete impairment of his interests supporting mandatory intervention. IL DERSHOWITZ HAS NOT SHOWN THAT THE COURT SHOULD ALLOW PERMISSIVE INTERVENTION UNDER RULE 24(B). 7 During the hearing on Reinhart's intervention motion, the Government stood silent about the accuracy of Reinhan's affidavit. Much later, after the Court had denied the motion, the Government admitted that it possessed information contradicting Reinhart's sworn affidavit. See DE 225-1 at 9-10, yi 43-45 ("in answering the victims' Requests for Admissions, the Government has admitted that it possess information that Reinhart learned confidential non-public information about the Epstein case and he discussed the Epstein case with other prosecutors."). 9 EFTA01191881 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 10 of 40 Dershowitz also contends that the Court should exercise its discretion to allow permissive intervention in this case under Fed. R. Civ. P. 24(b). The rule grants discretion to the court to allow intervention by a person who has "a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b); accord Mt. Hawley Ins. Co. v. Sandy Lake Properties, Inc., 425 F.3d 1308, 1311 (11th Cir. 2005) (permissive intervention allowed only where "a claim or defense and the main action have a question of law or fact in common and the intervention will not unduly prejudice or delay the adjudication of the rights of the original parties."). A district court's ruling on such intervention is reviewed only for abuse of discretion. Stone v. First Union Corp., 371 F.3d 1305, 1309 (11th Cir. 2004); see also AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561-62 (2nd Cir. 2005) ("[aj denial of permissive intervention has virtually never been reversed" because of the considerable discretion afforded to district courts). In ruling on a motion for permissive intervention, the Court must consider all relevant factors, including "the nature and extent of the intervenor's interest." Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009). Here, Dershowitz lacks a "claim or defense" in common with the CVRA action. Instead, Dershowitz intends to advance satellite arguments, including raising questions about the credibility of crime victims that the Government apparently does not intend to present.8 Allowing his intervention would thus create a clear risk of adding undue delay to what is already a long-running case. Cf. id. (affirming district court decision to deny intervention that would "consume additional tint and resources of s For example, in the media Dershowitz has called Jane Doe No. 3 — an alleged victim of international sex trafficking while she was a minor — "a serial perjurer, serial liar, serial prostitute." Washington Post, Morning Mix, http://www.washingtonpost.cominews/morning-mix/wp/2015/01/06/alan-dershowitz- takes-legal-action-after-being-named-with-prince-andrew-in-sex-ring-case/ . 10 EFTA01191882 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 11 of 40 both the Court and the parties that have a direct stake in the outcome of the proceedings"). Moreover, several other important factors weigh against allowing intervention. A. DERSHOWITZ CAN LITIGATE HIS REPUTATIONAL INTERESTS IN A PENDING DEFAMATION ACTION IN BROWARD COUNTY CIRCUIT COURT. In the opening paragraph of his court pleading, Dershowitz claims he has "no remedy" to defend his reputation. DE 81 at 1. And yet, in his statements to the media, Dershowitz has made clear that he intends to defend his reputational interests in a pending defamation action. The Court need not allow duplicative litigation on the same reputational issues. After Jane Doe No. 3 filed her motion to intervene, Dershowitz attacked her in the media as a "serial perjurer." He also repeatedly named and attacked her attorneys — i.e., undersigned legal counsel Edwards and Cassell — branding them, among other disparaging names, "two sleazy, unprofessional, disbarable lawyers." Dershowitz repeated his attacks on numerous worldwide media outlets, saying such things as victims' counsel "are prepared to lie, cheat and steal. These are unethical lawyers" (CNN Program "The World Right Now with Hala Gorani," Jan. 5, 2015) and that counsel "willfully and deliberately made this up in order to gain a litigation advantage, [to] line their pockets with money" (The Last Word with Lawrence O'Donnell — MSNBC (Jan. 8, 2015). Following these statements, on January 6, 2015, attorneys Edwards and Cassell, represented by Jack Scarola, Esq., filed a defamation action in Broward County Circuit Court. See Exhibit 11 at ¶ 17 (alleging Dershowitz has "initiated a massive public media assault on the reputation and character" of undersigned counsel, by "accusing them of intentionally lying in their filings, of having leveled knowingly false accusations against [Dershowitz], without ever conducting any investigation of the credibility of the accusations"). The attorneys also served 11 EFTA01191883 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 12 of 40 discovery requests on Dershowitz, as well as a notice of deposition. Dershowitz has yet to agree to a deposition date. Faced with a defamation action against him, Dershowitz stated that he was "thrilled" by the development because it "gives me a chance to litigate the case. I can expose their corruption. I can show how fraudulent the allegations are. This makes my day." Wall St. Journal Law Blog, http://blogs.wsj.cornilaw/2015/01/06/jane-doe-lawyers-sue-dershowitz-for-defamation/ (Jan. 6, 2015); see also UMAR News, https://www.youtube.conilwatch?v=KXzcxsiQv7Q (Jan. 4, 2015) ("I just need a legal proceeding ... to call witnesses ... to prove my case" (emphasis added)). Given that Dershowitz has the opportunity to litigate his concerns in the other case, this Court need not — and should not — allow permissive intervention in this one. See, e.g., Morgan v. Sears, Roebuck & Co., 124 F.R.D. 231 (1988) (declining intervention in one case where litigation on a similar issue was already underway elsewhere). Permissive intervention in this case would, for example, presumably lead to Dershowitz (and, in turn, undersigned legal counsel) seeking duplicative discovery to that which is already being sought in Broward County Circuit Court. One forum is enough to litigate reputations! issues. B. DERSHOWITZ SHOULD NOT BE ALLOWED TO INTERVENE IN THIS ACTION WHEN HE HAS DECLINED TO DEFEND HIS REPUTATION IN OTHER ACTIONS. Dershowitz also claims that he has not been given an opportunity to address his connection to Epstein's sex trafficking. DE 282-1 at 3. This is untrue. Indeed, Dershowitz has been given (at least) three separate opportunities to provide information concerning his involvement in Epstein's offenses. Because Dershowitz has not availed himself of any of those prior opportunities, the Court should deny his motion to intervene now. 2009 12 EFTA01191884 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 13 of 40 On about September 17, 2009, one of undersigned counsel (Brad Edwards) arranged to have Dershowitz served with a subpoena for deposition in connection with a civil case brought by one of the underage females who had sued Epstein (Doe v. Epstein, No. 9:08-cv-80893-KAM (S.D. Fla.)). At that point, Dershowitz understood that counsel for many of Epstein's victims believed that mounting evidence pointed toward his role extending beyond =rely being an attorney for Epstein. That deposition ultimately did not occur, and Dershowitz made no effort to provide information about his knowledge of relevant information. 2011 In 2011, in the state case of Epstein v. Edwards (No. 502009CA040800)OCXXMBAG (Palm Beach Cty. Cir. Ct.)), counsel for Edwards (Jack Scarola, Esq.) contacted Dershowitz to seek his cooperation in answering questions about his knowledge of Epstein's sex trafficking. On August 15, 2011, Dershowitz indicated that he wanted more information before would decide whether to cooperate: "If you would let me know what non-privileged information you would seek from me, I would then be able to decide whether to cooperate." See Exhibit 12 (emphasis added). On August 23, 2011, Scarola sent a letter to Dershowitz, explaining that there was no intent to inquire about attorney-client information, but adding: "[w]e do, however, have reason to believe that you have personally observed Jeffrey Epstein in the presence of underage females, and we would like the opportunity to question you under oath about these observations." See Exhibit 13. Dershowitz declined to cooperate, so on September 7, 2011, Scarola again sent a letter to Dershowitz, noting that while there was "no obligation" to disclose the basis for wanting a deposition, the reason was that "[m]ultiple individuals have placed you in the presence of Jeffrey Epstein on multiple occasions and in various locations when Jeffrey Epstein was in the 13 EFTA01191885 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 14 of 40 company of underage females subsequently identified as victims of Mr. Epstein's criminal molestation. This information is derived from both sworn testimony and private interviews." Exhibit 14. Despite providing Dershowitz with the basis for wanting his deposition, and the assurance that questions regarding privileged information would not be asked, Dershowitz did not cooperate. 2015 After Jane Doe No. 3 moved to intervene in this case, Dershowitz said "what they [victims' counsel] have done is so under-handed . . . not giv[ing] me an opportunity to disprove it. That's Kafkaesque." UMAR News, https://www.youtube.com/watch?v=KXzcxsiQv7Q. Following public statements such as these, on January 3, 2015, attorney Jack Scarola immediately sent an e-mail to Dershowitz, requesting an opportunity to take his deposition: Dear Mr. Dershowire: Statements attributed to you in the public media express a willingness, indeed a strong desire, to submit to questioning under oath regarding your alleged knowledge of Jeffrey Epstein's extensive abuse of underage females as well as your alleged personal participation in those activities. As I am sure you will recall, our efforts to arrange such a deposition previously were unsuccessful, so we welcome your change of heart. Perhaps a convenient ti me would be in connection with your scheduled appearance in Miami on January 19. I assume a subpoena will not be necessary since the deposition will be taken pursuant to your request, but please let us know promptly if that assumption is inaccurate.... Thank you for your anticipated cooperation. Exhibit 15. As of the date of this filing, Dershowitz has completely ignored this request, while simultaneously continuing to publicly protest his inability to challenge the allegations against him in a legal proceeding. 14 EFTA01191886 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 15 of 40 In light of these opportunities that have been extended to Dershowitz previously to answer any questions about his knowledge of (and even participation in) Epstein's sex trafficking, his claim that he needs a forum in this Court to defend his reputation rings hollow.9 For the sake of completeness — and to show a sinister pattern — it is also worth noting that each of the other four individuals Jane Doe No. 3 identified by name in her motion (Jeffrey Epstein, Ghislaine Maxwell, Jean Luc Brunel, and Prince Andrew) have also all been afforded opportunities to explain themselves — and all four have declined to take them. Epstein. The Court is familiar with Jeffrey Epstein's repeated invocations of the Fifth Amendment when asked questions about his sexual abuse of young girls, including Jane Doe No. I, Jane Doe No. 2, and Jane Doe No. 3. See generally Exhibit 16 at 1-7. Maxwell. In 2009, undersigned counsel (Brad Edwards) served Ghislaitt Maxwell with a subpoena for a deposition in a civil case against Jeffrey Epstein. After extensive discussion and coordinating a convenient time and place, as well as ultimately agreeing to a confidentiality agreement prepared by Maxwell's attorney, at the eleventh hour Maxwell's attorney informed the undersigned that Maxwell's mother was very ill and that consequently Maxwell was leaving the country with no plans to return. The deposition was cancelled. Yet a short time later, Maxwell was photographed at Chelsea Clinton's wedding in Rhinebeck, New York, confirming the suspicion that she was indeed still in the country and willing to say anything to avoid her deposition. 9 The difficulty in scheduling this deposition also fits into a pattern for Dershowitz. In around 2005 to 2006, Dershowitz was Jeffrey Epstein's "primary" lawyer. When the Palm Beach Police Department tried to interview Epstein, Dershowitz pretended that Epstein was willing to answer questions. Dershowitz set up, then cancelled, Epstein interviews with the police "several times." See B.B. v. Epstein, No. 502008CA037319XMC MB AB, Depo. of Police Chief Michael Reiter at 80 (Palm Beach Cty. Cir. Ct. Nov. 23, 2009). 15 EFTA01191887 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 16 of 40 Brunel. In 2009, undersigned counsel (Brad Edwards, representing Jane Doe) served Jean Luc Brunel with a subpoena for a deposition before this court in Doe v. Epstein, No. 9:08- cv-80119-KAM (S.D. Fla.). Brunel's attorney asked counsel for Jane Doe to postpone the scheduled deposition date. Jane Doe's counsel agreed, and then Brunel's attorney cancelled the rescheduled deposition date. Brunel's counsel represented that Brunel was outside the country and thus unavailable. But later sworn deposition testimony revealed that Brunel was actually inside the country at this time — indeed, he was hiding at Epstein's Palm Beach home. All this was brought to the Court's attention via a motion for sanctions. DE 483. This is just another exainple of the inner circle of Epstein's friends refusing depositions to answer questions. Prince Andrew. In 2011, Jack Scarola, representing Brad Edwards in the Epstein v. Edwards case, faced procedural impediments to obtaining a sworn deposition from a member of the British Royal family. Accordingly, he publicly invited the voluntary testimony of Prince Andrew, explaining: "We would be very keen to speak with Prince Andrew, given his relationship with Jeffrey Epstein. . . . We have reason to believe that Prince Andrew has been in the company of Mr. Epstein while Mr. Epstein has been in the company of under-aged children." http://effiefollceris.blogspot.coint2011/03konvicted-paedophile-jeffrey-epstein-is.html. Prince Andrew never responded. Two weeks ago, after Jane Doe No. 3 and Jane Doe No. 4 moved to join in this action, a spokesperson for Prince Andrew denied Jane Doe No. 3's allegations, without providing any explanation of what the Prince was doing with this minor girl late at night in a private setting. Accordingly, on January 14, 2015, Jack Scarola sent Prince Andrew a certified letter requesting his voluntary cooperation in answering questions about his sexual interactions with Jane Doe No. 16 EFTA01191888 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 17 of 40 3. See Exhibit 17. The letter requested an opportunity to take a statement under oath from Prince Andrew. Federal Express has informed us that the letter has been refused by the recipient. In light of these avoided opportunities by Dershowitz — as well as Epstein, Maxwell, Brunel, and Prince Andrew — to answer questions under oath regarding Epstein's trafficking of young girls, there is no good reason that the Court should now allow a special, discretionary opportunity to intervene to respond to the allegations. C. DERSHOWITZ SHOULD NOT BE ALLOWED TO INTERVENE TO STRIKE ALLEGATIONS RELEVANT TO ISSUES PENDING BEFORE THE COURT. The Court should also deny Dershowitz's motion for intervention because it would be a pointless exercise. Citing Rule 12(f) of the Federal Rules of Civil Procedure, Dershowitz seeks to intervene to strike "immaterial, impertinent, or scandalous matter." DE 282 at 7. Dershowitz contends that Jane Doe No. 3's allegations regarding sexual contacts with him "have nothing to do with any relevant issues in this case." Id. at 3. Courts generally "disfavor the motion to strike . . . ." Moore's Federal Practice § 12.37[1] (3d ed. 2014) (internal citation omitted). "Striking allegations from a pleading 'is a drastic remedy to be resorted to only when required for the purposes ofjustice,' and only when the allegations to be stricken have 'no possible relation to the controversy.'" Larise Atlantis, Inc. v. Pac. Ins. Co., No. 10-61583-CIV, 2011 WL 1584359 at *2 (S.D. Fla. 2011) (quoting Augustus v. Bd. of Pub. Instruction, 306 F.2d 862, 868 (5th Cir.1962)). "If there is any doubt as to whether the allegations might be an issue in the action, courts will deny the motion." In re 2TheMart.com, Inc. Sec. Litig., 114 F. Stipp. 2d 955, 965 (C.D. Cal. 2000) (emphasis in original). Just as with a motion to dismiss for failure to state a claim, in ruling on a motion to strike "the Court must view tit pleadings in a light most favorable to the 17 EFTA01191889 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 18 of 40 pleading party." Id. Any motion to strike by Dershowitz would be rreridess, because Jane Doe No. 3's allegations are pertinent to at least eight pending issues. 1. The Pending Motion to Intervene. Of course, the first reason that Jane Doe No. 3 made her allegations was to support her pending motion to join this action. As the Court has seen from the chronology recounted above, victims' counsel engaged in months of efforts to reach a stipulated motion for joinder by Jane Doe No. 3 and Jane Doe No. 4 that would not have required reciting any specific factual allegations. The U.S. Attorney's Office refused to provide any answer to that request, until finally tersely objecting (without providing any rationale). Once the joinder motion became contested, Jane Doe No. 3 then needed to proffer allegations supporting her entry into the case. To join this CVRA action, Jane Doe No. 3 must first show that she is the "victim" of a federal mine, 18 U.S.C. § 3771(e) — and, further, that the crime is one that implicates persons covered by the NPA. Jane Doe No. 3 alleged that she was sexually abused by Jeffrey Epstein. But she also focused much of her joinder motion on the fact that she was the victim of a "sex trafficking scheme" organized by Epstein. DE 280 at 3. To prove she is a victim of sex trafficking in violation of 18 U.S.C. § 1591, Jane Doe must demonstrate that she was recruited, transported, or harbored while under the age of 18 and "cause[d] to engage in a commercial sex act." Accordingly, she briefly described the trafficking scheme, including identifying several persons to whom she was trafficked (i.e., Dershowitz and Andrew).10 The fact that Dershowitz 10 In his motion, Dershowitz alleges that Jane Doe No. 3 identified these two names solely to stir up media attention. DE 282 at 2. But Dershowitz does not address the obvious reasons for the identification — i.e., that he was an attorney who helped draft the NPA and that a sex act with Prince Andrew in London affected "foreign commerce" — part of a jurisdictional requirement of the statute. See 18 U.S.C. § 1591(a)(1). In addition, Jane Doe No. 3 has also alleged that she was trafficked to "many other powerful men, including politicians and powerful business executives." Ex. 1 at 1 58. The names of these persons could have been included in her pleading and would have created significantly more media attention than 18 EFTA01191890 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 19 of 40 (and Prince Andrew) engaged in a "sex act" with her is simply a required element of her proof that she is the victim of a sex trafficking crime. Sexual trafficking is not the only crime that could support Jane Doe No. 3's joinder in this case. There am also various federal sex offenses, such as travel with intent to engage in illicit sexual conduct, 18 U.S.C. § 2423(6), which Jane Doe No. 3's proffer supported. And perhaps most obviously, Jane Doe No. 3 was S victim of a conspiracy under 18 U.S.C. § 371. Dershowitz, of course, was a co-conspirator against her — thereby directly implicating the NPA. In her pleading, Jane Doe No. 3 alleged only the fact that a sex act took place, not the nature of the sex act nor any "unnecessary detail." Begay v. Public Service Co. of New Mexico, 710 F.Supp.2d 1161 (D. N. Mex. 2010)." 2. The Pending Discovery Issues. Mother reason Jane Doe No. 3 cited in her pleading for specifically naming Dershowitz (and Prince Andrew) is that the Court has before it a pending discovery dispute involving documents relating to these two people. See DE 280 at 10 (citing DE 225 at 7-8 (discussing DE 48 at 16-18)). As the Court is aware, on December 1, 2011, Jane Doe No. 1 and Jane Doe No. 2 propounded a Request for Admission (RFA) asking the Government to admit that it possesses "documents, correspondence or other information reflecting contacts with the Department the names that she did include. If the Court would like proof of this assertion, counsel would request leave to provide an ex pane, sealed submission of the names of the other immediately recognizable persons who either observed or participated in the trafficking of Jane Doe No. 3. II Where sexual issues are relevant to a case, they must not be stricken. See, e.g., Zdenek v. School Bd. of Broward County, No. 07-CV-61110, 2007 WL. 4521489, at *2 (S.D. Fla. Dec. 19, 2007) ("given the Eleventh Circuit standards on what constitutes actionable sexual harassment, the allegations in question [with one exception) do not rise to the level of what is considered 'redundant, immaterial, impertinent, or scandalous"); Dawe v. Corr. USA, No. CIVS071790LKICEFB, 2009 WL 2591146 at *3 (E.D. CaL Aug. 20, 2009) ("these statements [referring to sexual contact) are made in the . . . larger context of alleging that the defendants' financial misconduct stemmed in part from an intention to cover up sexual misconduct. As such, the court agrees that the allegations are no more scandalous than those that would be asserted in any cause of action relating to sexual harassment."). 19 EFTA01191891 Case 9:08-cv-80736-KAM Document 291 Entered on FLSD Docket 01/21/2015 Page 20 of 40 between May 2007 and September 2008 on behalf of Jeffrey Epstein by . . (b) Andrew Albert Christian Edward (a/k/a Prince Andrew, Duke of York); (c) Harvard Law Professor Alan Dershowitz." While the Government denied that it had documents reflecting contacts by Prince Andrew, it specifically admitted possessing documents reflecting contacts by Dershowitz. Gov't Answer to RFA #6. The two victims further requested the Government admit that it possessed "information (including telephone logs and emails) reflecting contacts between Bruce E. Reinhart and persons/entities affiliated with Jeffrey Epstein (including . . . Harvard Law Professor Alan Dershowitz). The Government admitted this fact. Gov' t Answers to RFA #16. These RFA's tie into a major discovery bank that is currently before the Court. Related to the RFA's, on October 3, 2011, Jane Doe No. I and Jane Doe No. 2 propounded Request for Production (RFP) #8, seeking "all correspondence, documents, and other information regarding Epstein's lobbying efforts to persuade the Government to give him a more favorable plea arrangement and/or non-prosecution agreement, including efforts by . . . Andrew Albert Christian Edward (a/k/a Prince Andrew, Duke of York), [and] Harvard Law Professor Alan Dershowitz." The two victims also propounded RFP #21, requesting all documents relating to the NPA, including documents in the Government's possession from "defense attorneys representing Epstein (including . . . Alan Dershowitz)" and from "agents acting in support of Epstein (including . . . Andrew Albert Christian Edward (a/k/a Prince Andrew Duke of York))." Te Government responded to these (and other RFPs) by asserting