152.pdf

Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 1 of 8 JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 3, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 4, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 5, Plaintiff, JEFFREY EPSTEIN, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA/JOHNSON I CASE NO.: 08-CV-80232-MARRA/JOHNSON I CASE NO.: 08-CV-80380-MARRA/JOHNSON I CASE NO.: 08-CV-80381-MARRA/JOHNSON I Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 2 of 8 Doe 101 v. Epstein Page2 JANE DOE NO. 6, Plaintiff, JEFFREY EPSTEIN, Defendant. __________ ___:! JANE DOE NO. 7, Plaintiff, JEFFREY EPSTEIN Defendant. I C.M.A., Plaintiff, JEFFREY EPSTEIN Defendant. I JANE DOE, Plaintiff, JEFFREY EPSTEIN et al, Defendants. I DOE II, Plaintiff, JEFFREY EPSTEIN et al, Defendants. I CASE NO.: 08-80994-CIV-MARRA/JOHNSON CASE NO.: 08-80993-CIV-MARRA/JOHNSON CASE NO.: 08-80811-CIV-MARRA/JOHNSON CASE NO.: 08-80893-CIV-MARRA/JOHNSON CASE NO.: 09-80469-CIV-MARRA-JOHNSON Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 3 of 8 Doe 101 v. Epstein Page3 JANE DOE NO. 101, Plaintiff, JEFFREY EPSTEIN Defendant. ___________ _:! JANE DOE NO. 102, Plaintiff, JEFFREY EPSTEIN, Defendant. I CASE NO.: 09-80591-CIV-MARRA-JOHNSON CASE NO.: 09-80656-CIV-MARRA/JOHNSON DEFENDANT EPSTEIN'S RESPONSE TO PLAINTIFFS JANE DOE NOS. 101 AND 102'S MOTION FOR LEAVE TO FILE UNDER SEAL RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO STAY OR, IN THE ALTERNATIVE, TO UNSEAL THE NONPROSECUTION AGREEMENT {dated 5/29/09, [DE 128) Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned attorneys responds to the Plaintiffs' Jane Doe No. 101 and Jane Doe No. 102 ("Plaintiffs") Motion For Leave To File Under Seal Response In Opposition To Defendant's Motion To Stay Or, In The Alternative, To Unseal The Nonprosecution Agreement, and states: 1. This Court has already entered orders preserving the confidentiality of the Non- Prosecution Agreement ("NP A") and denying prior attempts to have the document unsealed. See Court's Orders, attached hereto as Exhibit A and Exhibit B, respectively, entered in In Re: Jane Does 1 and 2, Petitioners, Case No. 08-80736-CIV-MARRA/JOHNSON, A. Order To Compel Production And Protective Order, [DE 26], dated August 21, 2008, and B. Order [DE 36], dated February 12, 2009, on Petitioners' Motion To Unseal Non-Prosecution Agreement [DE 28]. Both of these Orders are clear that the terms of the NP A are to remain confidential and remain Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 4 of 8 Doe 101 v. Epstein Page4 protected from being disclosed to third parties. The NP A is an agreement between the United States Attorney's Office and EPSTEIN. Plaintiffs' motion presents nothing in support of this Court modifying its prior orders. 2. Significantly, even the United States Attorney's Office (USAO), along with Defendant, has strongly opposed making the NP A public. Attached as Exhibit C hereto is Respondent United States of America's Opposition To Victims' Motion To Unseal Non- Prosecution Agreement, dated October 8, 2008, [DE 29], also filed in In Re: Jane Does 1 and 2, Petitioners, Case No. 08-80736-CIV-MARRA/JOHNSON. In opposing the petitioners' attempts to make public the terms of the NP A, the United States in the Response, Exhibit C, stated: Since the Agreement (NP A) has not been filed under seal with this Court, the legal authority cited by petitoners regarding sealing of documents, United States v. Ochoa-Vasque, 428 F.3d 1015 (11 th Cir. 2005), is inapposite. The parties who negotiated the Agreement, the United States Attorney's Office and Jeffrey Epstein, determined the Agreement should remain confidential. They were free to do so, and violated no law in making such an agreement. Since the Agreement has become relevant to the instant lawsuit, petitioners have been given access to it, upon the condition that it not be disclosed further. Petitioners have no legal right to disclose the Agreement to third parties, or standing to challenge the confidentiality provision. After the United States' response, Exhibit C, this Court entered its Order, Exhibit B, agreeing with the United States' position and maintaining the confidentiality of the NP A in accordance with its prior Order, Exhibit A. The "victims" who were provided a copy of the NPA were and are required to maintain the NP A's confidentiality and not disclose the terms to third parties. 3. Other parties in the consolidated cases have been able to file their responses without a similar request being made. Defendant believes that these Plaintiffs can fully respond without the need to file under seal; and reference provisions generally. However if the Court is Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 5 of 8 Doe 101 v. Epstein Page 5 inclined to grant this Order, then in order to continue to protect the confidentiality of the NP A and to comply with the Court's prior Orders, Exhibit A and Exhibit B, Defendant would agree to allow Plaintiff to file under seal her response and reference only those portions (identified herein) of the NP A which are potentially relevant to the issues arising under claims brought pursuant to 18 U.S.C. §2255 and thus, that may have impact on Defendant's motion for stay and Plaintiffs response thereto. Specifically, the only portions relevant for this Court to make a decision on Defendant's motion and Plaintiffs' response are paragraphs 7, 8, 9, andl0 of the NPA, and paragraphs 7A, 7B, and 7C of the Addendum To The NPA. WHEREFORE, Defendant requests that this Court enter an Order denying any attempts by Plaintiffs to unseal or make public or to disclose to third parties the terms of the NP A, and to deny Plaintiffs move to file their response under seal; or if the Court is inclined to grant the motion, to allow Plaintiff to file her response to the motion to stay and only the specified portions of the NP A and Addendum thereto under seal. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this 10th day of June , 2009 Respectfully sub By: ------,P::...----- ROBERT D. RITTON, JR., ESQ. Florida Bar o. 224162 rcrit@bclclaw.com MICHAEL J. PIKE, ESQ. Florida Bar #617296 mpike@bclclaw.com BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 6 of 8 Doe 101 v, Epstein Page 6 561/842-2820 Phone 561/515-3148 Fax (Counsel for Defendant Jeffrey Epstein) Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 7 of 8 Doe 101 v. Epstein Page 7 Certificate of Service Jane Doe No. 2 v. Jeffrey Epstein Case No. 08-CV-80119-MARRA/JOHNSON Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Mermelstein & Horowitz, P.A. 18205 Biscayne Boulevard Suite 2218 Miami, FL 33160 305-931-2200 Fax: 305-931-0877 ssm@sexabuseattorney.com ahorowitz@sexabuseattorney.com Counsel for Plaintiffs in Related Cases Nos. 08-80069, 08-80119, 08-80232, 08-80380, 08- 80381, 08-80993, 08-80994 Richard Horace Willits, Esq. Richard H. Willits, P.A. 2290 10 th Avenue North Suite 404 Lake Worth, FL 33461 561-582-7600 Fax: 561-588-8819 Counsel for Plaintiff in Related Case No. 08- 80811 reelrhw@hotmail.com Jack Scarola, Esq. Jack P. Hill, Esq. Searcy Denney Scarola