1249.pdf

NOT A CERTIFIED COPY Filing# 68753394 E-Filed 03/03/2018 02:30:42 PM JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, V. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. _________________ ./ IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800:XXXXMBAG PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S RESPONSE TO DEFENDANT/COUNTER-PLAINTIFF BRADLEY EDWARDS' MOTION TO COMPEL Plaintiff/Counter-Defendant, Jeffrey Epstein ("Epstein"), responds in opposition to Defendant/Counter-Plaintiff, Bradley Edwards' ("Edwards") Motion to Compel Epstein to respond to Edwards' February 6, 2018 Request for Admissions, and states: INTRODUCTION Without argument or explanation, Edwards seeks an order compelling Epstein to respond to the Requests for Admissions ("RF As") propounded on February 6, 2018, claiming Request #1 is "impermissibly evasive" and Request #2 objection based on privilege has been "waived." Edwards' Motion should be denied simply because it is devoid of any argument or authorities to support his position. In the alternative, Edwards should not be allowed to present any authorities or support for his Motion at the hearing of this matter without giving Epstein an appropriate amount of time to serve a written response. FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 03/03/2018 02:30:42 PM NOT A CERTIFIED COPY Nevertheless, Epstein did respond as set forth below: 1. The printout of your New York State Sex Offender registration page attached [to the Request] as Exhibit 'A' is authentic. RESPONSE Epstein cannot admit or deny this request because he has no control over or personal knowledge about the authenticity of the registration attached as Exhibit 'A' to Edwards' Request. 2. The information contained in the printout of your New York State Sex Offender registration page attached [to the Request] as Exhibit 'A' is accurate. RESPONSE Epstein cannot admit or deny this request because any response would require the disclosure of information which could communicate a statement of fact that is testimonial in nature. Fisher v. United States, 425 U.S. 391, 410 (1976). There is a substantial and reasonable basis for concern that such testimonial statements of fact could reasonably furnish a "link in the chain of evidence" that could be used to prosecute him in future criminal proceedings. See Hoffman v. United States, 341 U.S. 479, 486 (1951). Additionally, Epstein cannot respond to this request without waiving his Fifth, Sixth and Fourteenth Amendment Rights as guaranteed by the United States Constitution and Article I, Sections 2, 9 and 16 of the Florida Constitution. Edwards offers no record legal support for his blanket assertions of "waiver" and "vague." Rather, Edwards' latest Motion is meritless and an obvious attempt to circumvent the hearsay rule. ARGUMENT The Response to RFA #1 is not "lmpermissibly Vague" Because Epstein Cannot Authenticate Printouts from a New York State Government Website. Epstein's response to Request #1 is not "impermissibly vague," but is the only proper response under Florida law. Indeed, Florida law is clear that "[ d]ocumentary and electronic evidence must be authenticated before it is admissible, and "[t]he party offering electronic evidence must introduce evidence sufficient to support a finding that the evidence is what its 2 NOT A CERTIFIED COPY proponent claims." § 901.la Electronic evidence, I Fla. Prac., Evidence § 901.la (2017 ed.) ( emphasis added; citations omitted). Edwards, as the proponent of the evidence, bears this burden. "Web-sites," however, "are not self-authenticating. To authenticate printouts from a website, the party proffering the evidence must produce some statement or affidavit from someone with knowledge of the website ... for example a web master or someone else with personal knowledge would be sufficient." Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897, 900 (Fla. 5th DCA 2012) (citing St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, 2006 WL 1320242 (M.D. Fla. May 12, 2006) (emphasis added)). In Darragh, for example, the appellate court held that information and printouts from a government website concerning expected military retirement benefits were not admissible, because the website printouts were not authenticated. Id. at 899-900. Other cases similarly hold that a website printout is not admissible in the absence of predicate testimony to establish the authenticity of the printout. See, e.g., Dolan v. State, 187 So. 3d 262, 266 (Fla. 2d DCA 2016) (error to admit booking photograph printed from sheriff's website that had not been authenticated. "Any argument that a copy of an online document, even a document from a government website, can be admitted into evidence over objection to prove an essential element ... without any predicate testimony to establish its authenticity or to prove the truth of its content, ... borders on the frivolous.") (emphasis added); Lodge v. Kondaur Capital Corp., 750 F.3d 1263, 1274 (11th Cir. 2014) (document purportedly from the "Georgia Press Association Public Notice Website" that listed foreclosure advertisements for properties was inadmissible because it was not authenticated); Sun Protection Factory, Inc. v. Tender Corp., 2005 WL 2484710 (M.D. Fla. 2005) ("[W]ebsites are not self-authenticating."). 3 NOT A CERTIFIED COPY Epstein is not "someone with knowledge" of the New York State Sex Offender registration website. As such, he cannot admit-nor can he be compelled to admit-that the website printout is authentic. Epstein Cannot Be Forced to Incriminate Himself. and His Privilege Obiection to RF A #2 was not Waived. Epstein appropriately asserted his constitutional privileges against self-incrimination when asked to admit to the accuracy of the information contained in the printout of the New York State Sex Offender registration page. Simply, he cannot be compelled to give a different response. The United States Constitution guarantees that a person may not be compelled to testify or give evidence against himself. See U.S. CONST. amend. V; Maness v. Meyers, 419 U.S. 449, 461 (1975). The Fifth Amendment may be asserted in civil cases "wherever the answer might tend to subject to criminal responsibility him who gives it." McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). Thus, the privilege may be asserted to avoid civil discovery if the person invoking it reasonably fears the answer would tend to incriminate him. See id.; U.S. v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, NY., 55 F.3d 78, 82 (2d Cir. 1995) (internal citations omitted) ("[A] civil litigant may legitimately use the Fifth Amendment to avoid having to answer inquiries during any phase of the discovery process. "[C]ourts have repeatedly held that the privilege against self-incrimination justifie[s] a person in refusing to answer questions at a deposition, or to respond to interrogatories, or requests for admissions, or to produce documents.") (emphasis added). "The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be 4 NOT A CERTIFIED COPY used against him in a criminal prosecution." Maness, 419 U.S. at 461 (citing Hoffman v. United States, 341 U.S. 479 (1951)). Edwards fails to specify how, when, or where this purported waiver occurred. And this Court should be hesitant to find one. "Because the right to be free from self-incrimination is a fundamental principle secured by the Fifth Amendment, waiver of the privilege will not be lightly inferred, and courts will generally indu