266.pdf

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ Related Cases: 08-80232, 08-80380, 08-80381, 08-80994, 08-80993, 08-80811, 08-80893, 09-80469, 09-80591, 09-80656, 09-80802, 09-81092, ____________________________________/ PLAINTIFFS’ JANE DOES 2-7 REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PROTECTIVE ORDER Summary of Argument in Reply Through hyperbole and grandiose statements, Defendant Epstein seeks to mask the true purpose and motive of his private “investigation” into the Plaintiffs’ claims. The private investigators’ activities, some of which have been documented through the Declarations of Jane Doe No. 4, 1 1 Jane Doe No. 4 has submitted two Declarations, dated July 17, 2009 and August 14, 2009, respectively. Jane Doe No. 6, Jane Doe No. 7 and Jane Doe No. 4’s sister, Y.B., are not intended to receive information from relevant witnesses, but rather to give information about the Plaintiff to persons who are generally within the Plaintiff’s circle of friends, family and community, but who are unaware that she is a civil Plaintiff making claims of child sex abuse against Jeffrey Epstein. While the investigators may not be stating to these persons directly that the Plaintiff is Case 9:08-cv-80119-KAM Document 266 Entered on FLSD Docket 08/14/2009 Page 1 of 9 2 a “Jane Doe” who has brought a civil case against Jeffrey Epstein alleging particular facts of child sexual abuse, they are in a calculated manner through their questions offering information that makes these facts very clear to the persons contacted. They are doing so in an aggressive and obnoxious manner, harassing the persons contacted. These persons are otherwise marginal or peripheral as witnesses, whom one would not expect an investigator to personally contact in a typical case. The Plaintiffs have great fear and concern of their identities being disclosed as Epstein’s victims, and the resulting damage to their reputations. As set forth in the report of Gilbert Kliman, M.D., the release of this information “will foster an exacerbation and magnification of symptoms leading to increased risk of revictimization and retraumatization.” (Exh. A to Motion for Protective Order, DE 226, ¶ 21). By means of his investigators, Defendant Epstein seeks to release this information not publicly through court filings, but person-by-person to the individuals who are either close to Plaintiff or in a position to damage her reputation and who are otherwise unaware of the Plaintiff’s involvement with Epstein. In this manner, it is Defendant’s intent not to defend these cases on their merits, but to intimidate and shame the Plaintiffs into either dismissing their cases or settling them for a nominal sum. This illegitimate strategy can only be thwarted through an appropriate protective order under Fed.R.Civ.P. 26(c). Plaintiffs Have Not Delayed or Stonewalled Defendant in His Nonparty Discovery In support of his use of private investigators in these cases, Defendant falsely accuses Plaintiffs of unreasonably delaying discovery, particularly relating to “the Plaintiffs” medical, psychological, criminal and employment histories, as well as their general backgrounds.” The absurdity of this accusation is reflected in the Court’s recent Order dated August 7, 2009, on the Defendant’s Motion to Compel and/or Identify Jane Doe et al. (DE 253). The Defendant’s Case 9:08-cv-80119-KAM Document 266 Entered on FLSD Docket 08/14/2009 Page 2 of 9 3 Motion sought to disclose the Plaintiff’s names in the style of the case or, alternatively, in discovery subpoenas containing the captions of these cases. If the Defendant were allowed to proceed in this manner, anyone receiving a subpoena would readily discover that Plaintiff is a Jane Doe bringing a civil suit against Defendant Epstein. The Court struck a balance between the Plaintiffs’ concerns regarding such disclosure of their identities and the Defendant’s interest in obtaining nonparty discovery, holding that the Plaintiffs shall remain anonymous in the style of the cases and that any nonparty subpoenas must use the caption “In re [plaintiff’s legal name”], and not reference or identify Defendant by name. Accordingly, it was only Defendant’s insistence that standard nonparty subpoenas be issued in these cases without regard to the Plaintiffs’ anonymity that caused Defendant any delay in discovery. Defendant is now free to serve nonparty subpoenas in compliance with the Court’s Order. Plaintiffs have otherwise worked cooperatively with Defendant in providing relevant discovery. Plaintiffs’ counsel initiated a draft of a HIPAA compliant protective order, which was stipulated by the parties and entered by the Court on July 2, 2009. Additionally, Plaintiffs have provided Defendant with extensive discovery from Plaintiff’s forensic psychiatric expert, Dr. Kliman, including videotaped interviews of Plaintiffs, which have been provided to and used by the Defendant’s expert, Richard C.W. Hall, M.D. 2 Defendant therefore is not by any stretch being unreasonably delayed or thwarted in obtaining nonparty discovery through the rules of civil procedure on the Plaintiffs’ medical, psychological, criminal and employment histories. The notion that information from private investigators is critical because Plaintiffs are otherwise preventing Defendant from obtaining 2 Plaintiffs have also provided Epstein’s counsel with signed authorizations for school records and Epstein’s counsel is currently requesting them. Case 9:08-cv-80119-KAM Document 266 Entered on FLSD Docket 08/14/2009 Page 3 of 9 4 non party discovery is false and misleading. 3 • The private investigators are casting a wide net, making personal contacts with friends, acquaintances, employers, and even immediate family members of the Plaintiffs. (See Decls. of Jane Doe No. 7, Jane Doe No. 4 (dated 8-14-09), Jane Doe No. 4’ s sister, Y.B.). Defendant is Not Using Investigators for Legitimate Purposes in Good Faith Defendant asserts that private investigators are “one of the most traditional methods [for discovery] in the justice system”, and a “common and well accepted method by which parties seek to obtain information not easily or otherwise obtainable about the claims asserted”. (Defendant’s Response, pp. 4, 6, DE 262). Plaintiffs do not contend that Defendant should be prohibited from using private investigators in good faith, as a defendant might ordinarily do in a case of this nature. The problem and concern raised by Plaintiffs in their Motion for Protective Order is that Defendant is not using private investigators in a good faith effort to obtain relevant evidence, but rather for the ulterior motive of intimidating and harassing the Plaintiffs. The Declarations filed in support of the Plaintiffs’ Motion for Protective Order demonstrate the following: • The private investigators are making personal contacts with employers, asking questions that extend beyond the scope of the Plaintiffs’ employment to the Plaintiffs’ personal and in