426.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 NOS. 2-8’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL RESPONSES TO REQUESTS FOR NET WORTH DISCOVERY AND INCORPORATED MEMORANDUM OF LAW Plaintiffs, Jane Does Nos. 2-8 (“Plaintiffs”), by and through undersigned counsel, hereby file this Reply Memorandum in Support of Plaintiffs’ Motion to Compel Responses to Requests for Net Worth Discovery and Incorporated Memorandum of Law, and state as follows: I. THE PLAINTIFFS ARE ENTITLED TO NET WORTH DISCOVERY BECAUSE EPSTEIN HAS NO VALID CONSTITUTIONAL PROTECTIONS OR ARGUMENT PRIVILEGES THAT WOULD PREVENT SUCH DISCOVERY Epstein’s Response contains not a single case authority in support of Epstein’s dubious argument that the Fifth Amendment privilege applies to financial discovery, even where the criminal prosecution feared is not a financial crime. In an effort to confuse the issues, Epstein points this Court to the Magistrate’s prior Order sustaining Epstein’s Fifth Amendment privilege as to the production of telephone records and the identification of witnesses with knowledge of the subject events. (D.E. 242). Those discovery requests are readily distinguishable in that they Case 9:08-cv-80119-KAM Document 426 Entered on FLSD Docket 11/23/2009 Page 1 of 6 2 arguably implicate or provide evidence of Epstein’s contacts with underage girls. Here, the Plaintiffs’ requests for net worth discovery have nothing to do with Epstein’s contacts with underage girls or his commission of a crime. 1 Epstein also argues that his net worth discovery responses could “reveal the availability to him and/or use by him of ‘interstate facilities’ and thus would constitute a link in the chain of evidence that could potentially expose him to the dangers of self-incrimination.” See Epstein also argues that production of net worth discovery will provide a chain in the link of evidence regarding (a) “Epstein’s air travel”; (b) “Epstein’s communications with other relating to or referring to females coming into the United States”, and (c) “Epstein’s personal calendar and schedules. Yet, none of these issues are even remotely implicated by the actual discovery requests, which merely seek to identify Epstein’s net worth and assets. There is no request in the net worth discovery for any documents or information pertaining to Epstein’s air Response, p. 7, n. 2. This argument is misguided. The fact that Plaintiff has access to “interstate facilities”, such as an airplane, has nothing to do with his commission of a crime. In any case, Plaintiffs were not transported across the state line. All of the Plaintiffs resided in Florida at the time of the abuse and they were sexually assaulted in Epstein’s Palm Beach home. The scope of the Plaintiffs’ document requests at issue is limited to Defendant’s net worth. The requests are unrelated to Defendant’s inducement of minors to sexual activity. As a result, compelling Defendant to provide net worth discovery does not concern his Fifth Amendment rights. 1 Several pages of Epstein’s Response Brief were redacted and unavailable to Plaintiffs. As a result, Plaintiffs cannot fully address all of Defendants’ arguments. Clearly, Plaintiffs are prejudiced to the extent they do not have knowledge of all of Defendant’s arguments. Epstein did not seek leave of court to file a redacted brief or even an in camera submission. Thus, a determination whether Epstein should be permitted to file a redacted brief and whether all the redactions are justified is necessary if the Court intends to sustain any of Epstein’s objections based on Epstein’s Fifth Amendment privilege. Case 9:08-cv-80119-KAM Document 426 Entered on FLSD Docket 11/23/2009 Page 2 of 6 3 travel, communications, or personal calendar. As an example, Plaintiff’s discovery request does not seek Epstein’s flight log, passenger manifests or anything about how he used his private aircraft, merely information on Epstein’s assets. Nothing about disclosing the fact that Epstein has certain assets would reveal how he used those assets, or even where Epstein was located at a particular date and time. Contrary to Epstein’s strenuous argument, the net worth discovery requests do not inquire as to how (or even whether) Epstein used his assets. Moreover, Epstein is incorrect and misguided that Jane Doe Nos. 2-8 will use this information to corroborate an allegation in the Complaint that Epstein transported them for purposes of sex. Jane Doe Nos. 2-8 do not even allege that Epstein transported females as part of interstate commerce for purposes of sex. In any case, the only basis for a Fifth Amendment objection is that it would aid in prosecution – not that it will facilitate civil claims. There is no Fifth Amendment privilege as to a party’s production of documents merely because it will aid an opposing party in civil litigation. Epstein also refuses to disclose the identity of witnesses with knowledge of his net worth. Instead, Epstein argues that disclosure of the identity of such witnesses would also lead to the identity of witness with knowledge of the alleged events. There is no authority for such a broad interpretation of the Fifth Amendment. Indeed, if the Fifth Amendment were so broadly construed, a party could never get any discovery on any issue from someone charged with a crime. Epstein also asserts that his tax return is confidential under federal law. This argument has already been overruled as a basis for withholding tax returns in discovery when Plaintiffs were ordered by this Court to produce their tax returns. Finally, Epstein contends that third party privacy rights are implicated by plaintiffs’ net worth discovery requests. This is absurd. In this litigation, plaintiffs have had to disclose the most intimate aspects of their lives, including their Case 9:08-cv-80119-KAM Document 426 Entered on FLSD Docket 11/23/2009 Page 3 of 6 4 sexual history with non-parties. It would be grossly consistent if third party privilege rights were upheld in the context of Epstein’s net worth discovery, yet denied in the areas of the most intimate aspects of Plaintiffs’ lives. Based on the foregoing, Plaintiffs respectfully request that Defendant’s assertions of privilege and objections be denied and overruled, and that an Order be entered directing Defendant to produce documents responsive to the Plaintiffs’ Requests for Production of Net Worth Documents and answer Plaintiffs’ Net Worth Interrogatories. Plaintiffs further request such other relief as this Court deems just and proper. CONCLUSION Dated: November 23, 2009 Respectfully Submitted, By: Stuart S. Mermelstein (FL Bar No. 947245) /s/ Adam D. Horowitz ssm@sexabuseattorney.com Adam D. Horowitz (FL Bar No. 376980) ahorowitz@sexabuseattorney.com MERMELSTEIN & HOROWITZ, P.A. 18205 Biscayne Boulevard, Suite 2218