056-03.pdf

Case 9:08-cv-80232-KAM Document 56-3 Entered on FLSD Docket 03/25/2009 Page 1 of 14 A.C., Plaintiff, V. JEFFREY E. EPSTE:IN, apd SARAH KELLEN, - • • '"" •· . Defendants. I -------------- IN THE COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502008CA025129XXXXMB Al ORDER ON DEFENDANT, JEFFREY EPSTEIN'S RESPONSE & OBJECTIONS TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION, DATED FEBRUARY 6, 2009 THIS CAUSE came before the Court on Defendant, Jeffrey Epstein's Response & Objections To Plaintiff's First Request For Production, dated February 6, 2009 and the Court having heard argument of counsel and being fully advised in these premises, it is hereby 0/o~~ ~ ~ ORDERED and ADJUDGED that Defendant's-Moti II is lie1eb,-gre1,teaib DONE AND ORDERED at Palm Beach County Courthouse, West Palm Beach, Florida, this Z,) day of ~ Edward A. Garrison Circuit Judge Copies furnished: ROBERT D. CRITTON, JR., ESQ., and MICHAEL J. PIKE, ESQ., 515 North Flagler Drive, Suite 400, West Palm Beach, FL 33401; JACK SCAROLA, ESQ., AND JACK P. HILL, ESQ., Searcy Denney Scarola Barnhart & Shipley, P.A., 2139 Palm Beach Lakes Blvd., West Palm Beach, FL 33409, and JACK A. GOLDBERGER, ESQ., Atterbury Goldberger & Weiss, P.A., One Clearlake Centre, Suite 1400, 250 Australian Avenue South, West Palm Beach, FL 33401 ,< f, CofhPo;rr€EXHI ITL Case 9:08-cv-80232-KAM Document 56-3 Entered on FLSD Docket 03/25/2009 Page 2 of 14 AC., Plaintiff, V. IN THE COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502008CA025129XXXXMB Al JEFFREY E. EPSTEIN, and SARAH KELLEN, Defendants. I -------------- DEFENDANT JEFFREY EPSTEIN'S AMENDED RESPONSE & OBJECTIONS TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION Defendant, JEFFREY EPSTEIN, by and through his undersigned attorneys, hereby files his Amended Response and Objections to Plaintiff's First Request For Production To Defendant, served January 5, 2009 and states: Introduction This Amended Response amends Defendant's previously filed Response and Objections Request for Production, 2009. This response does not change the legal objections previously raised but rather sets forth a discussion of the law in support of Defendant's constitutional objections to production, in particular, the Fifth Amendment privilege against self-incrimination. Except for the discussion of law set forth herein, this response sets forth the identical responses and objections previously filed and served. Accordingly, Plaintiff is in no way prejudiced by this Amended Response. Legal Basis Applicable to Each of Defendant's Objections Set Forth Below In response to each of the items requested, set forth below, Defendant asserts his Fifth Amendment Privilege against self-incrimination. The Fifth Amendment Case 9:08-cv-80232-KAM Document 56-3 Entered on FLSD Docket 03/25/2009 Page 3 of 14 AC. v. Epstein, et al. Page2 Privilege extends to the act of production where, as here, it involves a self-incriminating testimonial communication or "a compelled testimonial aspect." United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037 (2000); Fisher v. United States, 425 U.S. 391 (1976); McCormick on Evidence, Title 6, Chap. 13. The Privilege Against Self- Incrimination, §138 (6 th Ed.). See also Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "[i]t would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); Hoffman v. U.S., 71 S.Ct. 814,818 (1951), and progeny). The Fifth Amendment Privilege may be invoked in a civil action where a litigant or witness is being asked to provide information or respond to a question that may incriminate him in a crime. See generally, Delisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4 th 1983). privilege against self-incrimination may be asserted during discovery when a litigant has "reasonable grounds to believe that the response would furnish a link in the chain of evidence needed to prove a crime against a litigant." A witness, including a civil defendant, is entitled to invoke the Fifth Amendment privilege whenever there is a realistic possibility that the answer to a question could be used in anyway to convict the witness of a crime or could aid in the development of other incriminating evidence that can be used at trial. Id; Pillsbury Company v. Conboy, 495 U.S. 248, 103 S.Ct. 608 (1983). Case 9:08-cv-80232-KAM Document 56-3 Entered on FLSD Docket 03/25/2009 Page 4 of 14 AC. v. Epstein, et al. Page3 The United States Supreme Court has made clear that the scope of the Fifth Amendment Privilege includes the circumstances as here "the act of producing documents in response to a subpoena (or production request) has a compelled testimonial aspect." United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043 (2000). In explaining the application of the privilege, the Supreme Court stated: We have held that "the act of production" itself may implicitly communicate "statements of fact." By "producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic."FN 19 Moreover, as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. FN 2 o The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating. FN19. "The issue presented in those cases was whether the act of producing subpoenaed documents, not itself the making of a statement, might nonetheless have some protected testimonial aspects. The Court concluded that the act of production could constitute protected testimonial communication because it might entail implicit statements of fact by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic. United States v. Doe, 465 U.S .. at 613, and n. 11. 104 S.Ct. 1237; Fisher, 425 U.S., at 409-410, 96 S.Ct. 1569: id., at 428, 432, 96 S.Ct. 1569 (concurring opinions). See Braswell v. United States, [487 U.S.,] at 104, 108 S.Ct. 2284; [ id.,) at 122, 108 S.Ct. 2284 (dissenting opinion). Thus, the Court made clear that the Fifth Amendment privilege against self-incrimination applies to acts that imply