EFTA01099175.pdf

Filing # 27349731 E-Filed 05/15/2015 01:43:57 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 15-000072 BRADLEY J. EDWARDS and PAUL G. CASSELL, Plaintiffs / Counterclaim Defendants, v. ALAN M. DERSHOWITZ, Defendant / Counterclaim Plaintiff. DEFENDANT / COUNTERCLAIM PLAINTIFF ALAN DERSHOWITZ'S MEMORANDUM IN OPPOSITION TO JANE DOE NO. 3'S MOTION TO OUASH OR FOR PROTECTIVE ORDER Defendant / Counterclaim Plaintiff Alan Dershowitz ("Dershowitz") respectfully submits this Memorandum in Opposition to the Motion to Quash or for Protective Order Regarding Subpoena filed by non-party Jane Doe No. 3 (the "Motion to Quash"). INTRODUCTION The Motion to Quash presents Jane Doe No. 3 — who is a 31-year-old married woman — as though she were a minor who is being unwillingly dragged into a dispute not of her making and who would prefer to avoid public attention.' Nothing could be further from the truth. This case began when Jane Doe No. 3 and her lawyers, Bradley J. Edwards ("Edwards") and Paul G. Cassell ("Cassell") (together, "Plaintiffs"), made a deliberate decision to file a pleading in a federal lawsuit accusing Dershowitz of committing a heinous crime: sexually Jane Doe No. 3 has no right to proceed anonymously as she has been identified publicly on several occasions and has made public statements to the media using her own name, as indicated by the exhibits that she submitted with the Motion to Quash. See Motion to Quash, Exs. 1-4. Nonetheless, Dershowitz will refer to her as "Jane Doe No. 3" until the Court orders otherwise. EFTA01099175 abusing a minor. Jane Doe No. 3 and her attorneys made these allegations in public court pleadings and declarations, hoping to hide behind the litigation privilege to prevent Dershowitz from being able to hold them accountable for their false statements. Jane Doe No. 3's outrageous allegations were obviously intended to generate publicity for herself and her lawyers — not to advance any legitimate interest. As alleged in Dershowitz's counterclaim, Plaintiffs alerted the media to the filing of Jane Doe No. 3's accusations to maximize the resulting publicity. The allegations had absolutely no relevance whatsoever to the lawsuit in which the pleadings and declarations were filed and gratuitously included the names of prominent people, including Prince Andrew. Jane Doe No. 3 also alleged that Jeffrey Epstein ("Epstein") "trafficked her for sexual purposes" to other powerful and prominent men, including prominent American politicians and world leaders, yet withheld the names of those individuals in a transparent effort to generate media interest in potential future revelations. That the allegations were improper and irresponsible is not merely an assertion by Dershowitz; United States District Judge Marra has expressly held that the "lurid" allegations were "unnecessary," "immaterial," and "impertinent" to the federal lawsuit. See Ex. A, at 5. Judge Marra ordered the allegations stricken from the record and reminded the attorneys of their obligations under Rule 11 of the Federal Rules of Civil Procedure, which prohibits filings made for an improper purpose. Id. at 5-7. According to Judge Marra, "striking the lurid details from [the] submissions is sanction enough." Id. at 7. As Jane Doe No. 3 and her lawyers undoubtedly expected and intended, their "unnecessary," "immaterial," and "impertinent" allegations resulted in a firestorm of publicity about Dershowitz's alleged misconduct. With Plaintiffs and Jane Doe No. 3 seeking to hide behind the litigation privilege and relying instead on the media to circulate the false accusations 2 EFTA01099176 under the protection of the fair reporting privilege, Dershowitz responded as best he could by telling the press repeatedly and forcefully that Jane Doe No. 3's allegations about him are completely and categorically false. Edwards and Cassell used their own "credibility" as lawyers and, in Cassell's case, as a former judge and a professor (he used the name of his law school name and address on the pleading),in an effort to enhance the credibility of Jane Doe No. 3's false accusations against Dershowitz. Dershowitz responded by expressing his opinion that Plaintiffs knew or should have known the allegations were false, or would have known they were false if they had done even minimal investigation into Jane Doe No. 3's story. Edwards and Cassell then filed this action, alleging that Dershowitz committed the tort of defamation in making these statements to the media in order to defend himself. To prevail on their defamation claim and defeat Dershowitz's affirmative defenses, Plaintiffs must substantiate their allegation that Dershowitz made the statements to the media even though he "knew [the filing containing Jane Doe No. 3's outrageous allegations was] an entirely proper and well- founded pleading." See Compl. 17. In other words, Plaintiffs must prove both that the allegations asserted in the Joinder Motion were "well-founded" and that Dershowitz knew they were true. The testimony of Jane Doe No. 3 and the documents requested in the subpoena are at the very heart of this issue, which Edwards and Cassell have placed squarely in dispute. Although Jane Doe No. 3 is not a party to this case, she is, at bottom, the accuser making allegations of criminal misconduct, which Plaintiffs contend are true and which Dershowitz contends are complete fabrications. There simply is no basis for crediting Jane Doe No. 3's assertions of "irrelevance." Jane Doe No. 3's argument that she should be excused from providing relevant discovery because Dershowitz is "abusing" the subpoena power by seeking information that is "highly 3 EFTA01099177 personal" and "confidential" is completely meritless and, indeed, disingenuous in light of her deliberate actions as an adult to seek publicity. As an adult, Jane Doe No. 3 has voluntarily submitted multiple sworn declarations and has given numerous media interviews in which she has described, at length and in lurid detail, the very same events that she is now contending are "highly personal" and "confidential." Indeed, Dershowitz has learned that, since the filing of the Motion to Quash, Jane Doe No. 3 gave a recorded interview to the ABC television network in which she detailed her alleged experiences as a "sex slave" for Epstein. That interview was intended to be broadcast on several national platforms, although it has yet to air. An organization that Dershowitz believes to be affiliated with Edwards has promoted the interview on its social media page. See Ex. B, at II. The existence of the ABC interview had not been publicly disclosed previously, so the obvious inference is that the organization learned of it from Jane Doe No. 3 or her lawyers. Were Jane Doe No. 3 truly concerned for her privacy, she could have refrained from giving any media interviews and avoided rather than sought publicity. As to the federal lawsuit, Judge Marra has already held that the allegations against Dershowitz (and Prince Andrew) were not entirely proper, as Plaintiffs have alleged, but rather should never have been included in Jane Doe No. 3's pleadings at all. And, even if those allegations had some legitimate purpose, which Judge Marra held they did not, Jane Doe No. 3 and her lawyers could have made them in a sealed pleading. Instead, Jane Doe No. 3 (with Plaintiffs' assistance) made these accusations in the most public manner possible — seeking out the limelight rather than hiding from it. In light of these deliberate choices by Jane Doe No. 3, and considering the issues in dispute in this action, Dershowitz's need for the requested documents and testimony clearly outweighs any "privacy" interests that Jane Doe No. 3 could 4 EFTA01099178 conceivably assert. Indeed, by making her allegations publicly and by seeking publicity, Jane Doe No. 3 has waived any right to "confidentiality" or "personal privacy" that she may have had. A person cannot go to the press to publicize a topic, and then refuse to give relevant evidence to a court regarding that same topic based on "privacy" concerns. Swords may not be used as shields. The subpoena is not a fishing expedition, nor does it represent any sort of abuse of the discovery process. Jane Doe No. 3, along with Plaintiffs, set off the chain of events that led to the filing of this lawsuit by making false and gratuitous allegations against Dershowitz, to which Dershowitz had a constitutional right to respond in the court of public opinion. If she had not voluntarily made these scurrilous allegations, or if they had been true, there would have been no statements by Dershowitz and no lawsuit. She must be compelled to submit to questioning about those scurrilous allegations, which are the crux of the claims and defenses at issue in this defamation action. Like any witness, she is entitled to be treated with dignity and respect during the discovery process, and will be so treated by Dershowitz's counsel. But the notion that she is entitled to extraordinary protections, and to be excused from producing evidence that is central to this case, is frivolous. In particular, the Court should reject Jane Doe No. 3's request to bar Dershowitz from attending her deposition because of her purported "fear" of being in his presence. That "fear" cannot be credited without also crediting Jane Doe No. 3's false allegations of misconduct by Dershowitz, which would be entirely inappropriate at this stage given that Dershowitz is vigorously contesting those allegations. For these reasons and as explained in detail below, the Court should deny the Motion to Quash and reject Jane Doe No. 3's request for a protective order that imposes limitations on the subpoena. 5 EFTA01099179  FACTUAL BACKGROUND This defamation action arises out of an underlying lawsuit that Edwards and Cassell filed against the United States (the "Government") in the United States District Court for the Southern District of Florida (the "Federal Action") more than eight years ago. In the Federal Action, Edwards and Cassell represent certain alleged victims of Epstein, a client of Dershowitz's, who contend that the Government violated their rights under the Crime Victims' Rights Act (the "CVRA"). Specifically, the two alleged victims — known as "Jane Doe No. 1" and "Jane Doe No. 2" — assert that the Government violated their rights under the CVRA by failing to consult with them before negotiating a non-prosecution agreement with Epstein, who allegedly subjected them to various sexual crimes when they were minors. On December 30, 2014 — more than eight years after the Federal Action began — Edwards and Cassell filed a motion to allow a third alleged victim, Jane Doe No. 3, to join in the suit as an additional plaintiff (the "Joinder Motion"). See Counterclaim, at 12. The Joinder Motion alleges that Jane Doe No. 3 first met Epstein in 1999 and that Epstein "kept Jane Doe #3 as his sex slave from about 1999 through 2002, when she managed to escape to a foreign country." Id. The Joinder Motion alleges that "Epstein also sexually trafficked the then-minor Jane Doe [No. 3], making her available for sex to politically-connected and financially-power people." Id. In several paragraphs that Judge Marra has since ordered stricken from the record, the Joinder Motion then alleged that Epstein required Jane Doe No. 3 to have sexual relations with Dershowitz in certain specific locations, among other allegations of criminal conduct by Dershowitz. The Joinder Motion includes similar allegations against Prince Andrew, which Judge Marra has also ordered stricken because they should never have been included in the 6 EFTA01099180 pleading. Edwards and Cassell filed the Joinder Motion on behalf of Jane Doe No. 3 on the public docket in the Federal Action, without any accompanying motion to seal. The Joinder Motion marked the first time that Jane Doe No. 3 (either directly or through her attorneys) publicly asserted any sort of allegations of misconduct against Dershowitz. To the best of Dershowitz's knowledge, Jane Doe No. 3 also had not previously communicated to any law enforcement officials or journalists that she had sex with Dershowitz. Certainly, no federal law enforcement agency, court or other objective investigator has ever investigated or acted on Jane Doe No. 3's belated accusations against Dershowitz. Yet, the Federal Action is not the first forum in which Jane Doe No. 3 has made public statements about her interactions with Epstein and others as a minor. In 2011, Jane Doe No. 3 gave an extensive interview to the Daily Mail, a British tabloid publication, during which she "agreed to waive her anonymity" and provided a number of specific details about her alleged abuse at the hands of Epstein. See Ex. C. Dershowitz intends to ask in discovery if Jane Doe No. 3 was paid for this interview, which seems likely. The Daily Mail quotes Jane Doe No. 3 as stating that "I was training to be a prostitute for [Epstein] and his friends who shared his interest in young girls." Id. According to the Daily Mail, Jane Doe No. 3 was very descriptive during her interview about her time with Epstein. Indeed, Jane Doe No. 3 stated that she was "telling [the news publication] things that even my husband didn't know." Id. The tabloid newspaper specifically noted that "for reasons of taste, not all the details [provided by Jane Doe No. 3] can be included here." Id. A person interested in privacy or confidentiality does not give interviews for publication providing sordid detail of her alleged experiences, apparently in exchange for money! 7 EFTA01099181  Jane Doe No. 3 used a similar level of detail in the two sworn declarations she submitted in the Federal Action following the filing of the Joinder Motion. The declarations — each of which consisted of more than 60 separate paragraphs — provided many details about Jane Doe No. 3's time with Epstein. The first declaration actually included multiple photographs purportedly of Jane Doe No. 3 as a minor, including one of Jane Doe No. 3 and Prince Andrew. With respect to Dershowitz, Jane Doe No. 3's first declaration provided gratuitous (and completely false) details about six specific instances in which Jane Doe No. 3 purportedly had sexual intercourse with Dershowitz. Of course, Jane Doe No. 3 failed to identify the specific dates (or even the specific months or years) when these purported instances occurred. Jane Doe No. 3 also falsely averred that Dershowitz watched Epstein engage in sexual acts with her. As with the Joinder Motion, Plaintiffs filed Jane Doe No. 3's declarations on the public docket in the Federal Action without any effort to seal the contents of the documents. In response to the false and outrageous allegations asserted against him in the Federal Action and the subsequent media coverage of those allegations, Dershowitz also made a number of public statements defending his previously unblemished personal and professional reputations. Because Edwards and Cassell tried to exploit their credibility as lawyers and, in Cassell's case, as a former judge and law professor, in an effort to bolster the credibility of the false accusations against Dershowitz, Dershowitz also expressed his constitutionally protected opinion that Edwards and Cassell acted improperly and deserved to be disbarred. Edwards and Cassell then filed this action, alleging that Dershowitz defamed them by "initiat[ing] a massive public media assault on the reputation and character of [Edwards] and [Cassell] accusing them of intentionally lying in their filing, of having leveled knowingly false accusations against [Dershowitz] without ever conducting any investigation of the credibility of the accusations and of having acted 8 EFTA01099182 unethically to the extent that their willful misconduct warranted and required disbarment" — even though Dershowitz "knew [the Joinder Motion] to be an entirely proper and well-founded pleading." Compl. 1 17. Plaintiffs' pleading thus placed at issue whether Dershowitz "knew" that Jane Doe No. 3's allegations against him were "well-founded" (i.e., true) and whether those allegations are, in fact, true. Pursuant to the stipulated order entered by this Court on March 20, 2015 that appointed a Commissioner in the State of Colorado, Dershowitz served a subpoena for the production of documents and a videotaped deposition on Jane Doe No. 3. See Motion to Quash, Ex. 6. The subpoena seeks, among other things: (1) documents supporting Jane Doe No. 3's allegations about Dershowitz in the Federal Action; (2) photographs and video of Jane Doe No. 3 with Dershowitz; (3) photographs, videos, and documents establishing that Jane Doe No. 3 was in the six locations identified in her declaration at the same time that Dershowitz also was in those six locations; (4) statements provided by, and notes from interviews given by, Jane Doe No. 3 referencing Dershowitz by name; (5) travel records, cell phone records, and diaries from the time period when Jane Doe No. 3 has proclaimed she was kept as a "sex slave" by Epstein; (6) drafts of any of Jane Doe No. 3's declarations referencing Dershowitz by name; and (7) documents concerning any actual or potential book, television, or movie deals concerning Jane Doe No. 3's allegations about being a "sex slave." Id. In short, the subpoena seeks documents and information that are directly relevant to the issues Plaintiffs have placed in dispute in this defamation action by alleging that Dershowitz "knew" that Jane Doe No. 3's accusations against him were "entirely proper" and "well-founded." Plaintiffs refused to accept service of the subpoena on behalf of Jane Doe No. 3, even though they represent her in connection with the Federal Action. Plaintiffs referred Dershowitz 9 EFTA01099183 to the law firm of Boies, Schiller & Flexner LLP ("BSF'), which is representing Jane Doe No. 3 for purposes of this action. BSF likewise declined to accept service on behalf of Jane Doe No. 3, which forced Dershowitz to seek the issuance of the subpoena through the commission process and ultimately to effect service on Jane Doe No. 3 in Colorado. After all that, Jane Doe No. 3's lawyers asked Dershowitz to consent to having this Court resolve the Motion to Quash and for her deposition to be in Florida, which Dershowitz did. Jane Doe No. 3's deposition and production of documents have been delayed by this unnecessary and inappropriate runaround. On April 7, 2015, Judge Marra issued an order in the Federal Action striking the portions of the Joinder Motion and Jane Doe No. 3's declarations referring to Dershowitz. See Ex. A. The court concluded that the allegations against Dershowitz, including the "lurid details" included in the Joinder Motion by Plaintiffs on behalf of Jane Doe No. 3, are "immaterial and impertinent" to the issues in dispute in the Federal Action and were "unnecessary" to resolving the Federal Action. Although he warned the attorneys of their obligations under Federal Rule of Civil Procedure 11, he ruled that striking these allegations was "sanction enough" for Edwards and Cassell. In a supplemental order also issued on April 7, 2015, Judge Marra ordered that the filings containing the stricken materials be restricted from public access. See Ex. D. Since the filing of the Motion to Quash, ABC contacted Dershowitz and others and informed them that Jane Doe No. 3 has given an on-air interview about her time with Epstein as a minor that was intended to be broadcast to millions of viewers on a number of the television network's programs. Although the interview was scheduled to be aired in April, it still has not aired. 10 EFTA01099184  MEMORANDUM OF LAW I. The documents and testimony that Dershowitz seeks from Jane Doe No. 3 are directly relevant to this defamation action. The thrust of Jane Doe No. 3's motion to quash is that Dershowitz is improperly using the defamation action to obtain backdoor discovery relating to the "different" matters at issue in the Federal Action. See Motion to Quash, at 8. In reality, however, the subpoena served on Jane Doe No. 3 seeks documents and testimony that are at the very crux of this action, as framed by Plaintiffs' own complaint. Moreover, the Federal Action is now over with respect to both Dershowitz and Jane Doe No. 3. Under Rule 1.280 of the Florida Rules of Civil Procedure, "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party[.]" Put differently, information is discoverable so long as it relates "to the issues involved in the litigation, as framed in all pleadings." Diaz-Verson v. Walbridge Aldinger Co., 54 So. 3d 1007, 1011 (Fla. 2d DCA 2010); see also Richard Mulholland & Assocs. v. Polverari, 698 So. 2d 1269, 1270 (Fla. 2d DCA 1997) (a protective order is required only "when the pleadings indicate that the documents requested are not related to any pending claim or defense"). Jane Doe No. 3 contends that she should not have to testify or produce any documents in this case because the allegedly defamatory statements at issue "are statements about [Plaintiffs] character as lawyers and do not directly involve non-party Jane Doe No. 3." Motion to Quash, at 3. This is simply wrong. The complaint expressly alleges that Dershowitz committed the tort of defamation by accusing Plaintiffs of having acted improperly by filing the Joinder Motion, even though Dershowitz "knew [the Joinder Motion] to be an entirely proper and well-founded 11 EFTA01099185 pleading." Comp. 1 17. Thus, the face of the complaint asserts that Jane Doe No. 3's accusations were "well-founded" and that Dershowitz "knew" they were true — allegations that necessarily establish that this case does directly involve Jane Doe No. 3 and the credibility of her accusations against Dershowitz. The relevance of Jane Doe No. 3's testimony and documents becomes even more apparent after considering what Plaintiffs must prove to prevail on their defamation claim and defeat Dershowitz's affirmative defenses. Under Florida law and the First Amendment, a defamation plaintiff must establish the following elements: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory. Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). Because Plaintiffs are public figures or limited public figures, they must also prove that Dershowitz acted with actual malice in making his statements, i.e., that Dershowitz "knew [the Joinder Motion] to be an entirely proper and well-founded pleading." Comp. 1 17. The truth or falsity of the accusations to which Dershowitz responded is certainly relevant to Dershowitz's knowledge of whether the allegations were proper and well-founded and his alleged "malice" in responding to them. Testing this allegation requires discovery into the credibility of Jane Doe No. 3's accusations against Dershowitz. Whether those allegations are true or false go directly to whether Dershowitz was properly defending his reputation or acting maliciously in his statements about Plaintiffs by vehemently denying Jane Doe No. 3's allegations. The subpoena served on Jane Doe No. 3 is intended to accomplish precisely that goal. For example, the subpoena seeks "[a]ll documents that reference by name, Alan M. Dershowitz, which support 12 EFTA01099186 and/or confirm the allegations set forth in" Jane Doe No. 3's declarations submitted in the Federal Action, as well as "[a]ny documents and information that support and/or confirm [Jane Doe No. 3's] presence at the various locations named in [Jane Doe No. 3's declaration] on the particular dates and times when [Dershowitz] was also present." Similarly, the subpoena seeks Jane Doe No. 3's diaries, cell phone records, and travel records during the time she asserts she was kept as Epstein's "sex slave," i.e., 1999 to 2002 — all of which could contain information that undermines or contradicts her allegations about when and where she allegedly had sex with Dershowitz (and that likewise disproves Plaintiffs' allegation that Dershowitz knew the Joinder Motion was a "well-founded pleading").2 This information also is relevant to whether Plaintiffs conducted an appropriate investigation, which would have included asking Jane Doe No. 3 for these documents and examining them to determine whether they support or undercut her allegations. The subpoena also requests documents that go to Jane Doe No. 3's general credibility — an issue that is directly relevant to the truth of Jane Doe No. 3's allegations against Dershowitz, whether Dershowitz knew the Joinder Motion to be "well-founded," and what type of investigation (if any) Plaintiffs conducted into Jane Doe No. 3's allegations. For example, Jane Doe No. 3 has made statements to the media about meeting former President Clinton and former Vice President Gore on Epstein's private island in the Caribbean. Dershowitz is entitled to explore the veracity of Jane Doe No. 3's accounts of these meetings, because any inconsistencies are obviously relevant to Jane Doe No. 3's credibility as a witness regarding her alleged 2 Of course, if Plaintiffs or Jane Doe No. 3 were to identify and disclose the specific dates of the purported six instances when Jane Doe No. 3 allegedly had sex with Dershowitz, the scope of the requested discovery (as well as Plaintiffs' own discovery requests) could easily be narrowed. To date, however, Plaintiffs and Jane Doe No. 3 have conspicuously refused to make any specific allegations of timing. 13 EFTA01099187 experiences as a "sex slave" for Epstein. That evidence is also directly relevant to the sufficiency of any investigation undertaken by Plaintiffs before filing the Joinder Motion. Dershowitz expects the evidence to show that Jane Doe No. 3's public accounts of her alleged interactions with President Clinton and Vice President Gore are complete fabrications, just like her allegations against Dershowitz. Similarly, Dershowitz has a right to explore Jane Doe No. 3's potential book, movie, and television deals as a means of establishing her bias, as well as Plaintiffs' (i.e., whether the lawyers had a financial incentive to help sensationalize Jane Doe No. 3's story by identifying Dershowitz by name in a public pleading). See Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So. 3d 200, 203 (Fla. 4th DCA 2012) (discovery aimed at obtaining evidence of a witness's bias is permissible). Jane Doe No. 3 has discussed her allegations in public and in detail, naming some of the prominent people with whom Epstein allegedly forced her to have sex but pointedly withholding other names, presumably in order to "sell" them to a book publisher or the tabloids. She has also sought out publicity, including through her recent interview with ABC Television. The obvious inference to be drawn from Jane Doe No. 3's behavior is that she and her lawyers are attempting to cash in on her alleged experiences by way of a book or movie deal or otherwise. Dershowitz is entitled to test that inference in discovery. And, as discussed in detail below, Jane Doe No. 3 has waived any confidentiality or privacy interests she may have in this type of information through her voluntary disclosures and public statements. No one is entitled to titillate the public by asserting to the media and in public filings that she had improper sexual relations with prominent public figures (naming some while saving others for potential future disclosure), while at the same time refusing to provide evidence on the same subject. 14 EFTA01099188  The cases relied upon by Jane Doe No. 3 in support of her relevance argument are inapposite because they involved attempts to obtain information that had no "possible relevance" to the issues in dispute. For example, in Calvo v. CaIvo, 489 So. 2d 833, 834 (Fla. 3d DCA 1986), the Third District held that an ex-wife's financial records had no "possible relevance" to her post-judgment action seeking to compel payments that the ex-husband owed under a previously entered final judgment dissolving their marriage. In Toledo v. Publix Super Markets, Inc., 30 So. 3d 712 (Fla. 4th DCA 2010), the Fourth District held that a party cannot issue an indiscriminate request to the attorney of a non-party seeking the attorney's entire client file in an unrelated litigation, absent some showing of how specific documents in that file might possibly be relevant. Here, by contrast, Dershowitz is seeking specific types of information from Jane Doe No. 3 and has established how that information is directly relevant to matters put at issue by this defamation action, as framed by the operative pleadings. The subpoena issued to Jane Doe No. 3 is in no way, shape, or form a fishing expedition. II. Jane Doe No. 3's "confidentiality" and "privacy" assertions cannot excuse her from testifying or producing documents given her repeated public statements about these issues. Jane Doe No. 3 also attempts to use "confidentiality" as a shield to protect her from having to participate whatsoever in discovery. Specifically, Jane Doe No. 3 argues that it would be "oppressive and unreasonable" to force her to provide any testimony or documents about her time with Epstein because that topic is "highly personal and sensitive." Motion to Quash, at 4. Jane Doe No. 3 therefore asks the Court to quash the subpoena in its entirety so that she is not "forc[ed]" to testify about her experiences at the hands of Epstein. Id. Jane Doe No. 3's assertions of "privacy" and "confidentiality" are untenable in light of what she and her lawyers have deliberately exposed to the public. Jane Doe No. 3 has made 15 EFTA01099189 public, detailed statements about her interactions with Epstein, as well as her purported encounters with Dershowitz during her self-described time as Epstein's "sex slave." Jane Doe No. 3 has even given lengthy interviews describing her experiences as a "sex slave" in such detail that not even a tabloid newspaper that paid for it was willing to print all of the remarks she voluntarily made about her alleged experiences. See, e.g., Ex. C. Edwards and Cassell have also submitted numerous unsealed pleadings and declarations on behalf of Jane Doe No. 3 in the Federal Action that were available to the public (until Judge Marra appropriately struck those filings from the record as being lurid and impertinent). Jane Doe No. 3 made all of these voluntary statements as an adult, many years after she allegedly "escaped" from Epstein. She can hardly now say that such matters are so "personal" or "private" as to warrant an order from the Court that excuses her from testifying about facts within her personal knowledge. "When confidential information is sought from a non-party, the trial court must determine whether the requesting party establishes a need for the information that outweighs the privacy rights of the non-party." Westco, Inc. v. Scott Lewis' Gardening & Trimming, Inc., 26 So.3d 620, 622 (Fla. 4th DCA 2009). Assuming that the testimony and information sought in the subpoena is, in fact, "confidential" — a conclusion that is farfetched indeed given Jane Doe No. 3's penchant for discussing that information in the most public of ways, presumably for financial gain — Dershowitz has indisputably met his burden of establishing a need for that information. Dershowitz has no way to test the essential elements of Plaintiffs' defamation claim or certain of his affirmative defenses without questioning Jane Doe No. 3 about her false and outrageous allegations against him. Moreover, by publicly discussing her experiences as a "sex slave" in general and by naming some of the people who allegedly abused her, and describing others without yet naming 16 EFTA01099190 them, Jane Doe No. 3 has waived any right to withhold additional information on the same subjects based on "confidentiality" or "privacy." See Berkeley v. Eisen, 699 So. 2d 789, 791 (Fla. 4th DCA 1997) (voluntarily disclosing confidential information or otherwise taking "steps inconsistent with a reasonable expectation of privacy" results in a waiver of privacy rights). This is particularly true with respect to Jane Doe No. 3's diaries, portions of which have already been published online by the Daily Mail and are in the public domain. See Ex. E. It is also true of her photographs and travel records, some of which she has voluntarily disclosed. For these reasons, Jane Doe No. 3's reliance on Peisach v. Antuna, 539 So. 2d 544, 547 (Fla. 3d DCA 1989), is misplaced. In Peisach, the Third District held that an ex-husband in a post-divorce custody dispute was not entitled to depose his ex-wife's gynecologists because (1) those physicians were unlikely to have information about the ex-wife's migraine headaches, which was the specific condition the ex-husband contended interfered with the ex-wife's ability to care for the children; and (2) the ex-husband was already deposing the wife's neurologist, who was "far more likely to shed light on the subject of migraine headaches than any testimony from a gynecologist." Unlike in Peisach, there are no obvious alternative avenues to pursue to test the veracity of Jane Doe No. 3's allegations against Dershowitz. Moreover, there was no suggestion in Peisach that the ex-wife had voluntarily disclosed the substance of her consultations with her gynecologists or otherwise acted in a manner that was inconsistent with her privacy interests. In sum, there is no sound basis for excusing Jane Doe No. 3 from having to testify or produce documents in this action. Jane Doe No. 3, along with her lawyers, set in motion the events that led to this defamation action, and she should be compelled to submit to questioning and document production in accordance with Florida's broad parameters for discovery and pursuant to fundamental principles of fairness. Holding otherwise would insulate false accusers 17 EFTA01099191 from being tested by the adversarial process and would impede the ability of parties such as Dershowitz who seek to prove the falsity of outrageous allegations against them. This would constitute a fundamental violation of principles of justice and due process, and would encourage false accusations. HI. Jane Doe No. 3's requested limitations on the subpoena duces tecum are unfounded and should be denied. Jane Doe No. 3 alternatively argues that, if the Court does not quash the subpoena in its entirety, the Court should limit the scope of her document production. According to Jane Doe No. 3, the requests can be grouped into four objectionable categories: (1) documents that contain highly personal and sensitive information; (2) documents unrelated to this action; (3) documents that contain personal financial or other confidential information; and (4) "plainly privileged" communications between Jane Doe No. 3 and her lawyers. None of Jane Doe No. 3's objections have merit, and the Court should reject her request for a protective order. First, Jane Doe No. 3's arguments with respect to Categories I and 3 fail for the reasons discussed above. Having publicly and repeatedly discussed her purported experiences as a minor with Epstein (and allegedly with Dershowitz) — including to the point of volunteering details that not even a tabloid would publish — Jane Doe No. 3 can hardly claim these issues are confidential or private. Jane Doe No. 3's actions in this regard constitute a waiver of any legitimate privacy and confidentiality interests she may have had with respect to these subject matters. In any event, Dershowitz has established that his need for the information outweighs any privacy interests held by Jane Doe No. 3. Second, the so-called "Category 2" arguments represent another misguided attempt by Jane Doe No. 3 to contend that the subpoena seeks information that is not relevant to this action. Dershowitz is seeking documents and other materials that are relevant to the claims and defenses 18 EFTA01099192 in this action, as framed by the operative pleadings. In fact, it was Plaintiffs' improper filing of lurid statements about Dershowitz in the Federal Action that gave rise to this action. Jane Doe No. 3's attempt to distinguish the Federal Action as involving entirely "different" issues is unavailing. With respect to Category 4, the only information that Jane Doe No. 3 specifically identifies as being "plainly privileged" is the request for "All documents concerning your retention of the law firm Boies, Schiller & Flexner LLP, including but not limited to: signed letter of retainer, retention agreement, explanation of fees, and/or any documents describing the scope of retention." Contrary to Jane Doe No. 3's unsupported assertions of privilege, a retainer letter between a client and her attorney generally is not protected by the attorney-client privilege, nor is other information relating to the financial arrangements between the attorney and the client. See, e.g., Lainfinders Assocs., Inc. v. Legal Research Ctr., Inc., 193 F.3d 517, 518 (5th Cir. 1999) ("[T]he attorney-client privilege does not protect the type of information contained in the retainer letters."); United States v. Davis, 636 F.2d 1028, 1043-44 (5th Cir. 1981) (explaining that "[f]inancial transactions between the attorney and client, including the compensation paid by or on behalf of the client" generally are not protected by the attorney-client privilege). Even if the information Dershowitz seeks in Request No. 25 were deemed to be "confidential" as distinguished from privileged, Dershowitz's need for the information requested outweighs any privacy interests held by Jane Doe No. 3 in her financial dealings with lawyers. The timing of Jane Doe No. 3's retention of BSF is relevant to determining when Jane Doe No. 3 first raised allegations against Dershowitz and Plaintiffs' corresponding investigation into those allegations. 19 EFTA01099193  Likewise, as noted above, information about movie deals, book deals, or other financial arrangements that could give Jane Doe No. 3 and her lawyers an incentive to invent sensational allegations like those she has made against Dershowitz are directly relevant and highly probative of Jane Doe No. 3's credibility. Finally, and dispositively, any purported privilege for the financial relationship between Jane Doe No. 3 and BSF has plainly been waived. In particular, BSF has publicly stated that it is representing Jane Doe No. 3 on a pro bono basis, including in statements to The American Lawyer. See Ex. F. So too have Edwards and Cassell. In this way, Jane Doe No. 3 and BSF have sought an advantage by disclosing publicly the purported terms of BSF's engagement. Doing so works as a plain waiver of any privilege that might otherwise attach. E.g., Visual Scene, Inc. v. Pilkington Bros., PLC, 508 So. 2d 437, 440 (Fla. 3d DCA 1987) ("[V]oluntary disclosure to a third party of the privileged material, being inconsistent with the confidential relationship, waives the privilege."); First Union Nat'l Bank of Fla. v. Whitener, 715 So. 2d 979, 984 (Fla. 4th DCA 1998) (voluntary production of privileged information results in a waiver of privilege for all information on that same specific subject). The Court should order Jane Doe No. 3 to produce all documents that are responsive to the subpoena or, at a minimum, present those documents to the Court for in camera review. IV. The proposed "limitations" on Jane Doe No. 3's deposition are not reasonable. Jane Doe No. 3 also contends that if the Court is not prepared to excuse her from testifying altogether, the Court should issue a protective order that places the following extraordinary limitations on her deposition: (I) narrows the scope of testimony to preclude Dershowitz's counsel from pursuing certain lines of questioning; (2) includes a "cautionary notice" to Dershowitz's attorneys not to use derogatory terms in the deposition; (3) precludes 20 EFTA01099194 Dershowitz from being physically present for the deposition; and (4) requires the deposition to be taken at the offices of her counsel, BSF. None of Jane Doe No. 3's proposed modifications are warranted under Florida law. First, the proposed "limitations" on Jane Doe No. 3's questioning would unreasonably narrow the scope of the deposition. Jane Doe No. 3 requests that she not be asked any questions "about [her] experiences as a sexually trafficked minor"; "about individuals that she was sexually trafficked to"; "about any rapes that occurred when she was a minor child"; or "about anything related to her sexual activity either as a minor or thereafter." Motion to Quash, at 12. As set forth above, these issues are directly relevant to the issues in dispute in this litigation — namely, whether Dershowitz made the purportedly defamatory statements while knowing that the Joinder Motion was "well-founded." Moreover, Jane Doe No. 3 has provided first-hand, public accounts regarding these very topics on several different occasions, including in an on- the-record interview that was published by a widely read British tabloid and in which she included details that not even a tabloid would publish them. The obvious inference is that Jane Doe No. 3 received payment for her "exclusive interview" to the tabloids, and in all events she voluntarily spoke to the media about the same experiences as to which Dershowitz seeks discovery. She can hardly claim "embarrassment" as a reason not to give important evidence within her knowledge in light of her previous volunteered and detailed public accounts of her time as a "sex slave." These voluntary disclosures necessarily constitute, as a matter of law, a waiver of any assertion of privacy. See Berkeley, 699 So. 2d at 791. Second, Jane Doe No. 3 has not provided any support for her speculative assertions that Dershowitz's attorneys are likely to use harassing or derogatory language in a deposition, and the suggestion that they would do so insulting. The topics at issue (which Jane Doe No. 3 herself put 21 EFTA01099195 at issue) must be fully explored, but counsel for Dershowitz will of course treat the witness with courtesy and respect and will conduct the deposition in a manner that fully comports with the Florida Rules of Civil Procedure, as well as the Florida Rules of Professional Conduct. Moreover, it was she, through her lawyers, who made the most insulting and derogatory allegations against Dershowitz, which he has the right to challenge. As explained below, Dershowitz is concerned about the conduct of the deposition from the other side, namely whether Jane Doe No. 3's counsel will improperly instruct the witness not to answer or otherwise coach the witness. To avoid any problems, Dershowitz requests that the Court appoint a Special Magistrate to preside over the deposition pursuant to Rule 1.490(b) of the Florida Rules of Civil Procedure and handle any disputes that may arise during the course of the deposition.3 Third, the Court may not, as a matter of law, preclude Dershowitz from being physically present at the deposition of Jane Doe No. 3. "It is a venerated principle that a party has a right to be present at an oral deposition." Ferrigno v. Yoder, 495 So. 2d 886, 888 (Fla. 2d DCA 1986) (citing Cacace v. Associated Technicians, Inc., 144 So. 2d 82 (Fla. 3d DCA 1962) and further explaining that, although a court may properly exclude a party in some circumstances, that measure should be "ordered rarely indeed" because a party's right to be present at each stage of a lawsuit is "virtually sacrosanct" (internal quotation marks omitted)). Jane Doe No. 3's purported fear of being in close physical proximity to Dershowitz because he is an "incredibly powerful individual," Motion to Quash, at 5, is not the sort of "rare" circumstance that warrants an order precluding Dershowitz from attending the deposition in person. 3 The appointment of a Special Magistrate requires the consent of the parties.Accordingly, Dershowitz has asked counsel for Jane Doe No. 3 and counsel for Plaintiffs to consent to this request. That request is pending. 22 EFTA01099196  Dershowitz is 76 years old. He has been a professor (now emeritus) at Harvard Law School for decades and is a highly regarded attorney, who is bound to act and will act in accordance with professional standards, as he always has. Jane Doe No. 3 will be accompanied by counsel, as will Dershowitz. The notion that Jane Doe No. 3 is afraid to be in the same room with Dershowitz is a preposterous litigation tactic, and Dershowitz intends to challenge the truthfulness of that assertion if Jane Doe No. 3 makes it under oath. Moreover, the whole premise for Jane Doe No. 3's request (and many o