295.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA/JOHNSON JANE DOE 1 and JANE DOE 2,: : Plaintiffs,: v. : : UNITED STATES OF AMERICA,: : Defendant.: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : LIMITED INTERVENOR JEFFREY EPSTEIN’S RESPONSE TO ORDER REQUESTING JUSTIFICATION FOR SUPPLEMENTAL PROTECTIVE ORDER A few days ago, on January 21, 2015, the plaintiffs’ lawyers filed Plaintiffs’ Response To Motion For Limited Intervention By Alan M. Dershowitz. [DE 291]. This is a 40-page pleading addressing whether the Court should allow Professor Dershowitz to intervene. At the very end, on page 38, the Plaintiffs quote from a 2007 plea and settlement negotiation letter that Epstein’s defense lawyers sent to the government. The quote, in its entirety, is five or six words. The quote is redacted from the public filing but it is obvious that the quoted language is but a few words, not even a complete sentence. The letter from which the plaintiffs have taken this small quote is itself 23 single-spaced pages, supported by seven separately-appended exhibits. The Court has received a copy of the letter and its exhibits under seal. The Court can see that this letter, dated in July of 2007, two months before the execution of the Non-Prosecution Agreement, is a classic plea negotiation letter, addressing a variety of legal issues involving federalism, state law, state vs. federal prosecutions, legal precedent interpreting federal statutes, rules of statutory construction, and a variety of other Case 9:08-cv-80736-KAM Document 295 Entered on FLSD Docket 01/26/2015 Page 1 of 18 issues involving the interpretation of federal criminal statutes. The letter and its exhibits have no bearing on the CVRA claims raised by the plaintiffs or on Professor Dershowitz’s motion to intervene. Yet the plaintiffs propose to publicly file the entire 23-page defense settlement letter and all of its exhibits in the public record, as an exhibit to their opposition to Professor Dershowitz’s intervention. Without a protective order, such a public filing would make the entire defense settlement letter and all of its exhibits instantly accessible via Pacer to the worldwide media for dissemination. We have seen similar tactics before. In prior civil litigation with Mr. Epstein, one of plaintiffs’ lawyers, Mr. Edwards, through his counsel, filed a motion for summary judgment along with a statement of facts that was appended as an exhibit. The statement of facts itself contained a number of attachments, one of which constituted a wholesale dump into the public record of the state court all of the settlement negotiation letters and emails sent by the government to Epstein’s counsel during the federal investigation. 1 This filing by the plaintiffs’ lawyer was made without regard for the relevance of the many government written communications to the issues raised in the pleading. The lawyers simply cited a few matters, then dumped an entire package of letters and emails as purported exhibits. Good cause exists to issue the additional Protective Confidentiality Order proposed by Mr. Epstein here. The lawyers and parties in this case are already bound by a Protective Confidentiality Order issued by this Court on September 21, 2014, finding that “Epstein has shown good cause to 1 At the time, in the fall of 2010, plaintiffs’ counsel did not yet have the settlement letters that Mr. Epstein’s lawyers had sent to the government. 2 Case 9:08-cv-80736-KAM Document 295 Entered on FLSD Docket 01/26/2015 Page 2 of 18 prevent potential dissemination of the correspondence between the government and the intervenor to the press for the purposes of generating publicity.” [DE 255 at 4]. The order followed Epstein’s motion seeking protection from the constant leaks, comments, and inflammatory accusations made by the plaintiffs’ lawyers to the national and international media, as well as to various online outfits of varying reputations. The recent filings, comments, and exclusives granted to gossip reporters show that the frolic with the media has not abated. The Protective Confidentiality Order presently in place is not sufficient to protect the plea negotiation letters and emails from media dissemination. Id. Although the Order restricts the “disclosure of the correspondence in question” to “court personnel, court reporters, petitioners’ attorneys who are counsel of record in this case and their paralegal and clerical staff, retained consulting or testifying experts and consultants, and additional persons upon the agreement of the parties and the Intervenors,” id., the Order does not provide any protection when those documents are converted into exhibits and filed as a public record with the Court. The temporary seal order we have jointly proposed is appropriate and should issue. The order will temporarily prevent the disclosure of plea and settlement negotiations, which have been confidential by longstanding tradition in our justice system. The proposed order will protect these communications until the Court has had an opportunity to rule on a motion to unseal. The order is temporary and gives all parties and the public an opportunity to move to unseal pleadings or exhibits. These temporary precautions are appropriate because Mr. Epstein and his legal counsel will be irreparably harmed if what are historically confidential plea negotiations are wrongly filed in the public record, making their way around the world on the Internet in minutes, before the Court has an opportunity to rule. 3 Case 9:08-cv-80736-KAM Document 295 Entered on FLSD Docket 01/26/2015 Page 3 of 18 Neither the plaintiffs nor the public will suffer harm from this protective order. And, to the extent that the public has an interest in the matter, it would favor considered review by the Court prior to the release of the communications. Without the requested order, all protections of confidentiality will have been irretrievably lost if the Court later determines that the public filing of these settlement communications was unnecessary or inappropriate. I. THE LAW During discovery, pursuant to Federal Rule of Civil Procedure 26(c), the Court may enter a protective order to prevent the public disclosure of certain information, or to limit how that information is used in the litigation.We believe this Court’s inquiry is guided generally by the following Eleventh Circuit cases: * Chicago Tribune Co. v. Bridgestone/Firestone Inc., 263 F.3d 1304 (11th Cir. 2001). * FTC v. Abbvie Prod. LLC, 713 F.3d 54, (11th Cir. 2013). * Newman v. Graddic, 696 F.2d 796 (11th Cir. 1983). These cases provide the framework for evaluating whether a temporary protective order is appropriate and set forth the legal standard under which the Court evaluates our request. 1.THE STANDARD FOR EVALUATING THE REQUEST FOR A PROTECTIVE CONFIDENTIALITY ORDER IS ‘GOOD CAUSE’ Citing Brown v. Advantage Eng’g, Inc., 960 F.2d 1013 (11th Cir. 1992), and Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985), the Court has requested that we set forth “the extraordinary circumstances or particularized needs necessitating a seal in this case.” [DE 286]. However, we do not believe that we have to meet an “extraordinary circumstances or particularized needs” standard because we are not asking that the Court seal the entire court record, as happened 4 Case 9:08-cv-80736-KAM Document 295 Entered on FLSD Docket 01/26/2015 Page 4 of 18 in Brown and Wilson. Instead, because we are seeking only that the Court temporarily seal discrete documents rather than complete pleadings or an entire docket, the “good cause” standard of Rule 26(c) applies. Chicago Tribune Co. v. Bridgestone/Firestone Inc., 263 F.3d 1304, 1310 (11th Cir. 2001) (“The district court required Firestone to meet a compelling interest standard. To the extent this was predicated on a constitutional right of access, it was error”