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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80232-MARRA/JOHNSON JANE DOE NO. 3, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS Plaintiff, by and through undersigned counsel, files this Reply Memorandum in Support of Motion to Compel Answers to Interrogatories and Production of Documents, as follows: I. Introduction Defendant relies upon generalization s regarding the nature of the case and the allegations in the pleadings in justifying his assertion of the Fifth Amendment privilege in response to each and every interrogatory and document request propounded by Plaintiffs. This blanket assertion of the privilege is insufficient to deny Plaintiffs all discovery in these cases. Defendant otherwise fails to set forth any basis for denying Plaintiffs any and all answers to its written discovery under the psychotherapist-patient privilege, the Federal Rules of Evidence, on grounds of relevance, third party privacy rights, or other grounds. Accordingly, Plaintiffs respectfully request an Order compelling answers to interrogatories and production of documents. - 1 - Case 9:08-cv-80232-KAM Document 73 Entered on FLSD Docket 04/20/2009 Page 1 of 11 II. Argument in Reply A. Defendant Has Made a Blanket Assertion of the Privilege Against Self-Incrimination That Is Insufficient 1. Defendant Cannot Rely on its Blanket Objections to Interrogatories on Fifth Amendment Grounds Defendant Epstein insists that he has not asserted a “blanket privilege” to discovery under the Fifth Amendment, even though he has repeated the identical objection to each of Plaintiff’s discovery request on this ground. The federal courts have noted that “[t]he term ‘blanket assertion’ is not limited to the situation where the defendant makes a single response to numerous questions.” United States v. Buaiz, 2008 WL 5050102 (E.D. Tenn. 2008). Rather, as here, where the defendant refuses to answer on fifth amendment grounds each and every question, such repeated assertions are fairly characterized as a “blanket assertion”. Id.; Capitol Products Corp. v. Hernon, 457 F.2d 541 (8th Cir. 1972). Accordingly, it is not sufficient to support the invocation of the Fifth Amendment with nothing more than sweeping generalizations applicable to all questions that were asked in discovery. See United States v. Pierce, 561 F.2d 735 (9th Cir. 1977), cert. denied, 435 U.S. 923 (1978) (“a blanket refusal to answer any question is unacceptable”). Defendant Epstein’s Response does not set forth reasonable cause for a concern of self- incrimination in response to specific interrogatories. It is particularly deficient with regard to interrogatory, nos. 1-2 (identity of employees who worked or came to Palm Beach residence), no. 7 (Defendant’s presence in Florida), no. 8 (identity of health care providers), no. 9 (persons providing transport services), no. 11 (Epstein’s telephone numbers) and no. 12 (employees’ telephone numbers). Epstein’s references to allegations of sexual abuse, exploitation and battery in the Complaints in this and other civil actions against him, along with the alleged plan and scheme of - 2 - Case 9:08-cv-80232-KAM Document 73 Entered on FLSD Docket 04/20/2009 Page 2 of 11 recruiting girls to come to Epstein’s Palm Beach mansion to give him “massages”, fall well short of demonstrating that any interrogatory asked of Epstein that is relevant and within the broad scope of Fed.R.Civ.P. 26(b)(1) would realistically and necessarily furnish a link in the chain of evidence needed to prove a crime against him. Epstein alternatively points out that there is a “narrow exception” which allows a blanket assertion of the privilege where the trial court determines it to be legitimate based on the court’s knowledge of the case and the expected testimony. United States v. Goodwin , 625 F.2d 693, 701 (5th Cir. 1980); United States v. Tsui, 646 F.2d 365 (9th Cir. 1981). This is not a case, however, where this narrow exception should apply. In Tsui, the Court allowed a blanket assertion of the privilege only because it was clear that the witness would only be questioned about the real estate transactions that were at the heart of his criminal liability concerns, and the proponent of the testimony argued only that the witness did not have a reasonable fear of prosecution. Id . at 368. Such unusual circumstances are not present in the instant cases. Because a blanket assertion of the Fifth Amendment privilege is not legitimate in these cases, the Court must make a “particularized inquiry”, and “only as to genuinely threatening questions should [the witness’s] silence be sustained.” Goodwin , 625 F.2d at 701 (quoting United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976)). Defendant further asserts that Plaintiff’s interrogatories requesting that he identify employees may lead to evidence tending to incriminate him because one of his employees, Sarah Kellen, is identified in the Complaint. (Defendant Memorandum (DE 56), p. 18). This does not, however, support a blanket refusal to answer on Fifth Amendment grounds. It does not demonstrate how answers to these interrogatories, seeking the identities of all employees who were assigned or came to the Palm Beach residence, could realistically furnish a link in the chain of evidence needed to - 3 - Case 9:08-cv-80232-KAM Document 73 Entered on FLSD Docket 04/20/2009 Page 3 of 11 prosecute Epstein. Similarly, the allegations of the Complaints alone do not reveal the danger of self- incrimination from answers to interrogatories seeking information on when Epstein was in the State of Florida, who provided transportation services to Epstein, his telephone numbers, his employees’ telephone numbers, and his health care providers. 1 Discovery requests that seek background information or information on events and experiences of the witness for which he cannot realistically or genuinely be expected to be charged with a crime are not subject to Fifth Amendment protection. See Krause v. Rhodes, 390 F.Supp 1070, 1071-72 (N.D. Ohio 1974) (allowing questions to be asked regarding personal backgrounds and experiences excluding the event at issue in the pending criminal indictment). 2. Defendant Has Not Demonstrated That the Act of Producing Documents in Response to Specific Requests Would be Sufficiently Testimonial and Incriminating Defendant Epstein makes a general assertion that a response to any of Plaintiff’s document requests would entail testimonial self-incrimination. (Defendant’s Response (DE 56), pp. 22-23). Whether the act of producing a particular document would be sufficiently testimonial and incriminatory to support the Fifth Amendment privilege against self-incrimination is a “fact dependent inquiry.” United States v. Wujkowski , 929 F.2d 981, 985 (4th Cir. 1991). It is the burden of the party asserting the privilege to “explain how the act of producing documents would pose a real danger of incrimination.” Bear Sterns & Co. v. Wyler , 182 F.Supp. 2d 679, 681 (N.D. Ill. 2002). Defendant’s reliance on United States v. Hubbell, 530 U.S. 27 (2000), is inadequate. In Hubbell , it was apparent from the breadth of the description of documents demanded in the government’s subpoena that “the prosecutor needed respondent’s assistance both to identify 1 See Interrogatory nos. 7, 8, 10, 11, 12. - 4 - Case 9:08-cv-80232-KAM Document 73 Ente