EFTA00776366.pdf

1 1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 2 3 4 E.W., ) 5 ) Plaintiff, ) 6 ) vs )Case No. 502008CA028058 7 )XXXXMB AD JEFFREY EPSTEIN, ) 8 ) Defendant. ) 9 X 10 11 PROCEEDINGS BEFORE THE 12 HONORABLE JUDGE DONALD W. HAFELE 13 14 15 May 22, 2009 8:30 a.m. - 9:30 a.m. 16 17 205 N. Dixie Highway 18 West Palm Beach, FL 33401 19 20 21 22 Jennifer DiLorenzo, court reporter 23 24 25 EFTA00776366  2 1 APPEARANCES OF COUNSEL 2 3 On behalf of the Plaintiff: 4 ROTHSTEIN, ROSENFELDT & ADLER BY: WILLIAM J. BERGER, ESQ., 5 Mizner Park Office Tower Suite 675 6 225 NE Mizner Boulevard Boca Raton, FL 33432 7 8 ROTHSTEIN, ROSENFELDT & ADLER 9 BY: BRADLEY J. EDWARDS, ESQ., 401 East Las Olas Boulevard 10 Suite 1650 Fort Lauderdale FL 33394 11 12 13 On behalf of the Defendant: 14 BURMAN, CRITTON, LUTTIER & COLEMAN BY: ROBERT D. CRITTON, JR., ESQ. 15 and MICHAEL J. PIKE, ESQ., 515 North Flagler Drive 16 Suite 400 West Palm Beach, FL 33401 17 18 19 20 21 22 23 24 25 EFTA00776367  3 1 Proceedings in the Matter of W.E. vs. JEFFREY EPSTEIN. 2 May 22, 2009 3 THE COURT: Good morning, gentlemen. I 4 have read the materials. I am familiar 5 generally with the matters that are involved 6 here, so we can get started. 7 Mr. Berger, go right ahead. 8 MR. BERGER: Good morning, Your Honor. 9 William J. Berger and Brad Edwards for the 10 moving parties, and that's who's the 11 Plaintiff in one case today, and then there's 12 III., who's a Plaintiff in another case that's 13 in your division, and then there's Jane Doe, 14 who's a Plaintiff in a federal case. 15 Judge, these are motions for protective 16 orders by three young women who have sued the 17 Defendant for sexually molesting them starting 18 when they were 13 years old. 19 Judge, there's several reasons why these 20 young women should not have to undergo what we 21 think would be abusive discovery, and I would 22 like to just present that to the Court -- 23 THE COURT: Fine. 24 MR. BERGER: -- in an overview fashion. 25 THE COURT: Thank you. EFTA00776368  4 1 MR. BERGER: We have a couple of arguments 2 to make and I just want to go through them - and 3 Counsel has a copy of what I'm displaying to the 4 Court - I just want to do an overview. 5 These parties, parties and nonparties, 6 they should not be deposed until the Defendant, 7 until his deposition has been completed, that's 8 the first point. Also, now with regard to the 9 number of times that our client should be 10 deposed, we've reached an agreement on that, I'm 11 not going to dwell on that. 12 Next, with regard to the actual questions 13 themselves, our objection has to do with 14 questions that go to the names of consensual 15 sexual partners since the age of 10, the nature 16 of consent -- 17 THE COURT: Well, is consensual one of the 18 conditions? I don't recall seeing that. 19 MR. BERGER: Well, what they've asked for 20 is all. 21 THE COURT: Right, all. 22 MR. BERGER: And we're objecting to 23 consensual - obviously if our clients were raped 24 by somebody else, we're not objecting to that 25 discovery -- EFTA00776369  5 1 THE COURT: Well, I wasn't aware that you 2 were not objecting to that aspect of discovery. 3 Thank you for that clarification. 4 MR. BERGER: -- and the nature of the 5 consensual sexual activities and whether they 6 received money. We feel that those types of 7 questions are completely irrelevant, I'll argue 8 that. 9 Our clients have federal and state privacy 10 rights. There's no record showing, in other 11 words, there's no evidence that's been presented 12 to show that any of this discovery is needed. 13 The probative value, even if it is 14 relevant, is outweighed by its unfair prejudice, 15 and there's a tremendous problem with regard to 16 third-party privacy rights of the consensual 17 sexual partners since the age of 10 of our 18 clients. 19 Now, going to the point about the timing 20 of the deposition, we took Mr. Epstein's 21 deposition on April 30th, a month ago. We got 22 approximately 153 refusals to answer in 155 23 pages of questions. 24 Let me back up a minute. Under Rule 25 1.280(d), the Court has the discretion, upon a EFTA00776370  6 1 showing of injustice or in the interest of 2 justice, to regulate the timing of discovery. 3 Typically it's done without relation to other 4 discovery, but the Court does have the power on 5 a showing of justice to regulate the timing. 6 So Mr. Epstein's deposition has started, 7 it was terminated a couple of hours into it when 8 it was not even halfway finished by Counsel for 9 the Defendant. They terminated his deposition, 10 didn't like the questions, and didn't like what 11 he was going to say. He refused to answer about 12 153 questions in that deposition. We got 13 virtually nothing out of him. 14 It's a manifest injustice for our clients 15 to have to be deposed - and they want to depose 16 our clients as soon as next week. They wanted 17 to depose them this week. It's a manifest 18 injustice for our clients to have to be deposed 19 while Mr. Epstein's deposition is still open; 20 he's refused to answer all those questions. 21 We have propounded written discovery on 22 Mr. Epstein, Request for Admissions, Request to 23 Produce, Interrogatories. He's refused to 24 answer every single one of those, Your Honor. 25 It's a manifest injustice that we would have our EFTA00776371  7 1 clients deposed while those issues of the 2 validity of his refusals to answer have not been 3 addressed. 4 THE COURT: Let's talk about this for a 5 minute. Let's simplify the issue as far as 6 chronology or protocols of a deposition. 7 Typically, in the most simplest of cases, 8 which I understand this is not, but let's talk 9 about an auto accident and it's a contested 10 liability case, the burden of proof initially is 11 on the Plaintiff with regard to the allegations 12 that are made, and so as a result - and the same 13 thing typically with experts in accident 14 reconstruction-type of battle, let's say - I 15 will require the Plaintiff to be deposed first 16 because they have the burden of proof, and 17 typically the Defendant does not have to prove 18 anything, so I'm not really terribly concerned 19 about order of depositions unless they come 20 before me. If it's not an issue, better for me, 21 I don't have to worry about it. 22 But if I'm not mistaken, there was at 23 least one of the cases that came before me 24 before they were all transferred into this 25 division and we dealt at some issue with the EFTA00776372  8 1 Fifth Amendment privilege, and we dealt with 2 that - Mr. Kuvin, I think, was the plaintiff 3 attorney in that particular case - and I believe 4 I ruled that, under the circumstances of Mr. 5 Epstein's agreement at the time with the federal 6 government, he would have had the right to 7 invoke his Fifth Amendment right. 8 Now, where is that at this juncture in 9 terms of that federal agreement? 10 MR. BERGER: Judge, I don't understand how 11 the Court could have reached that conclusion. 12 Judge, this is a sealed envelope that is in 13 front of the criminal division of this court. 14 This contains the federal agreement, it is under 15 seal. I don't understand how it was proffered 16 to you because it's under seal by the criminal 17 division of this court. 18 I might add that it was illegally and 19 improperly sealed. It was done in violation of 20 all of the rules of judicial administration, and 21 we have a hearing before Judge Colbath to unseal 22 it, but Mr. Epstein faces no criminal charges 23 whatsoever. 24 MR. CRITTON: Just note my objection. I 25 think he's completely off base, I think -- Well, EFTA00776373  9 1 I'll sit down. 2 THE COURT: That's all right, just one at 3 a time. I don't understand why both of you have 4 to stand. 5 MR. BERGER: And this is a non-prosecution 6 agreement, it's a sealed agreement. 7 THE COURT: Well, I understand -- 8 MR. BERGER: I don't understand how it was 9 discussed in front of you, and then there was a 10 sealed addendum to the non-prosecution 11 agreement. 12 THE COURT: It wasn't discussed in terms 13 of its -- Well, there was some discussion as far 14 as its terms were concerned, but nothing 15 personal to any of the alleged victims here. 16 MR. BERGER: Then it seems impossible for 17 there to have been an evaluation of whether he 18 was properly invoking his Fifth Amendment rights 19 if the substance of this agreement; that is, a 20 secret agreement between Mr. Epstein, the State 21 Attorney in this County, and the Federal U.S. 22 District Attorney. 23 THE COURT: Well, to my recollection - and 24 it was done at an 8:45, so we didn't have the 25 chance to fully explore the matter, but it was EFTA00776374  10 1 done in a very efficient fashion, I can assure 2 you - I don't recall Mr. Kuvin being critical of 3 the sealing of the agreement. I don't recall 4 him being necessarily, tremendously adamant 5 about the situation as it stood at that time, 6 and this is going back now probably 30 or 45 7 days, so I don't know if anything has changed. 8 But clearly, though, we do have to resolve 9 that threshold issue, and I'm certainly not 10 averse - particularly where I believe that case 11 is already settled - I'm not averse at all to 12 having a hearing on that issue instead of 13 respectfully being critical of Judge Colbath 14 being critical of me -- 15 MR. BERGER: Judge Colbath didn't enter 16 the order, judge. 17 THE COURT: Well, whoever it was, being 18 critical of the judge in the criminal division 19 being critical of me when, frankly, you may not 20 know the entire facts and you may not be 21 apprised of the Defense's argument and -- 22 MR. BERGER: I read the plea colloquy, 23 Your Honor. It's all in the plea colloquy, it's 24 in the record. Maybe that's why Mr. Kuvin's 25 client did not - or maybe that's why my client EFTA00776375  11 1 did not retain Mr. Kuvin but retained me and my 2 firm. 3 We have our own case, Your Honor. I was 4 not privy and I did not have an opportunity to 5 participate in Mr. Kuvin's argument. 6 THE COURT: And that's precisely why I -- 7 MR. BERGER: And we have -- 8 THE COURT: Excuse me for a moment, 9 please, that's precisely why I'm suggesting to 10 you that I am willing to revisit the issue, but 11 why don't we go ahead and move on to the 12 substantive -- 13 MR. BERGER: Okay. 14 THE COURT: The substantive issue right 15 now, if I'm understanding correctly, is trying 16 to determine the protocol as far as the 17 depositions are going to take place. 18 MR. BERGER: There's a motion to compel 19 the continuation of his deposition set in front 20 of you on June 8th. 21 THE COURT: But what I'm trying to get to, 22 and perhaps I'm not making myself terribly 23 clear, is that to compel him to sit there and 24 essentially invoke his Fifth Amendment rights 25 without having a full hearing on whether that EFTA00776376  12 1 invocation is appropriate, to me, from your own 2 statements here and in this mini blowup, which 3 is significantly and seriously testing my 4 eyesight even with glasses 5 MR. BERGER: May I approach with a copy of 6 it? 7 THE COURT: Sure -- is probably better 8 off, as I said, having the hearing on the Fifth 9 Amendment privilege as opposed to worrying about 10 whether or not his deposition should or should 11 not go forward in its current context and in the 12 current fashion that it's already begun. 13 MR. BERGER: Judge, the case law that we 14 read said that you have to take the deposition 15 and ask specific questions. He invokes it with 16 regard to specific questions and those are 17 brought in front of the Court, not a question in 18 a vacuum, that's how we read the cases, that's 19 why we proceeded the way we did. 20 THE COURT: And you may be right. We'll 21 hear that hearing. I'm just trying to make a 22 recommendation that seems to make practical 23 sense to me more so than perhaps being familiar 24 with the specific cases -- 25 MR. BERGER: We -- EFTA00776377  13 1 THE COURT: -- and the matter -- 2 MR. BERGER: We -- 3 THE COURT: -- which the Court may 4 proceed. 5 MR. BERGER: We gave great consideration 6 as to how that issue should be brought in front 7 of you, and our decision was that the questions 8 have to be asked and objected to individually, 9 and that's how we proceeded - without objection, 10 really, in principal from the opposing side. 11 They were prepared to sit there for two days, 12 but they terminated the deposition early, and 13 that's set for June 8th. 14 So it's manifestly unjust for our clients, 15 we believe, to have their depositions taken 16 while these issues remain pending. 17 Moving on to the substance of the 18 questions themselves and whether they're 19 relevant, probative, et cetera, Your Honor, the 20 questions that we're objecting to have to do 21 with consensual sexual activities of our 22 clients. 23 Judge, I would like to analogize it to 24 this: If this were a car accident - using your 25 example, Your Honor - and the Plaintiff was EFTA00776378  14 1 claiming either physical or mental injuries as a 2 result of the car accident, it would definitely 3 be relevant to find out how many accidents she's 4 had in the past, the nature of those accidents, 5 and what type of injuries she suffered as a 6 result of those accidents, but it would not be 7 relevant and it would not be probative to find 8 out how and when she drove her car everyday from 9 the day she was 10 years old or whenever she 10 could drive. 11 In other words, the driving of the car 12 successfully and normally in the normal course 13 of her daily affairs is irrelevant to either the 14 liability issue in the auto case or the damages 15 issue. 16 Likewise, it's completely relevant for the 17 Defendant to ask each of our clients: Have you 18 ever been raped before? Have you ever had 19 forcibly a man insert his fingers in your 20 vagina? Have you ever forcibly been required to 21 give oral sex to a man? Those are legitimate 22 questions, but -- 23 THE COURT: Let me ask you something, 24 because you talk about normalcy, and I would 25 agree if we're dealing with adults how they EFTA00776379  15 1 drive their car arguably may not be relevant or 2 at least lead to the discovery of admissible 3 evidence, but when we're dealing with minors, 4 are you suggesting to me that there's ever 5 normalcy with regard to sexual activity, and 6 should the Court simply put aside what a 7 complainant in a case like this suggests is 8 normal if she has engaged in sexual activity at 9 10 years of age? 10 MR. BERGER: I think it's completely 11 appropriate for the Court to allow only 12 questioning with regard to forcible and 13 nonconsensual sexual activities -- Let me back 14 up a minute. If it's with an adult, yes, 15 perhaps that questioning is proper. We're 16 talking about adult and minor sexual activities, 17 but not minor and minor, Your Honor, and 18 certainly not -- I think our girls are 20 years 19 old, our young ladies, and not even normal 20 consensual or consensual sexual activity now. 21 We're asking that this Court agree with 22 the Court - and this is on the second page of my 23 display here - Judge, in a case called III. The 24 Court said that, "The law should not force 25 plaintiffs, particularly women, who will be the EFTA00776380  16 1 primary targets of such discovery to disclose 2 their entire sexual and reproductive histories 3 whenever they claim that they have sustained 4 psychiatric problems or a traumatic event that 5 is the subject of the lawsuit." 6 Below that, "There's no logical 7 correlation between a victim's willingness to 8 have engaged in sexual activities with others 9 and a victim's claim that he or she did not 10 consent to the sexual activity that is the 11 subject of the current proceedings." 12 The Mendez case, "No evidence was 13 presented" - this is when I said there's been no 14 showing - "by any mental health professional 15 that such evidence; that is, other sexual 16 activity by the plaintiff, would be relevant and 17 necessary for a determination of the cause of 18 the plaintiff's emotional distress. It's based 19 solely on the speculative presumption that 20 infidelity may lead to emotional distress. 21 Nowhere have defendants demonstrated factual 22 support for this presumption." 23 So the consensual sexual activity of the 24 plaintiffs with other men is completely 25 analogous to the normal driving of the plaintiff EFTA00776381  17 1 in my hypothetical case and, of course, the mere 2 questioning of somebody about that is a 3 traumatic experience itself to ask them to 4 undergo that. 5 These Plaintiffs should not be robbed of 6 their dignity and their Constitutional rights 7 simply because they have sued this Defendant, so 8 there's no relevancy to this, to this type of 9 questioning, and it would not lead to admissible 10 evidence. Our clients have -- 11 THE COURT: I'll give you a couple minutes 12 to wrap up, please. 13 MR. BERGER: -- State and Constitutional 14 rights. There's no probative value, or rather, 15 the probative value is outweighed by the 16 prejudice. 17 Judge, the last point is there's a 18 tremendous problem with third parties' rights, 19 and we've cited -- 20 THE COURT: I'm familiar. 21 MR. BERGER: -- those cases with regard to 22 that. 23 Thank you, Judge. 24 THE COURT: Thank you, Mr. Berger. 25 MR. CRITTON: Good morning, Your Honor. EFTA00776382  18 1 Judge, as you know, I represent Mr. 2 Epstein. Let me just take it in the order, the 3 issues associated with the termination or the 4 adjournment of Mr. Epstein's deposition, Mr. 5 Burman was there, along with Jack Goldberger, 6 his criminal attorney. Although it wasn't said, 7 he didn't refuse to answer, he refused based on 8 the Fifth Amendment. 9 The Court was right with regard to the 10 stay issue, the entire stay issue that came in 11 front of you there. I disagree with Mr. 12 Berger's assessment with regard to the 13 non-prosecution agreement and what happened. 14 If the Court will also recall, the NPA is 15 under, basically, a freeze order. Mr. Edwards, 16 on behalf of two of his Jane Does, tried to get 17 that order so it would become public. Judge 18 Marra said, no, and they keep trying and trying 19 and trying, but that's another issue. I did 20 raise that with you, and I believe Mr. Kuvin was 21 aware at the time. 22 We do have a motion to stay, I believe 23 that's going to be heard in June, and I will 24 provide you a copy of the transcript to see what 25 you did before, so with regard to that issue, EFTA00776383  19 1 that's going to be in front of you. 2 I think Mr. Berger was wrong, I think he 3 claimed the Fifth Amendment 200 out of 270 4 questions. He was no more going to answer the 5 question than they thought that there was some 6 great elucidation that the sky would open up, 7 so, therefore, we would like to be able to 8 proceed to take these depositions. 9 What's also important here is I haven't 10 asked one question to anybody yet in terms of 11 the deposition. What I did was, is I set 12 E.W. -- 13 THE COURT: And E.W. is the same lady who 14 the transcript -- 15 MR. CRITTON: Transcript has 16 and are the same person, §§§. is the same 17 person, and Jane Doe I think she's just 18 referenced as Jane Doe, although she has other 19 initials. 20 THE COURT: Well, the transcript that was 21 provided to the Court relative to this taped 22 statement says §§§. Is §§§. the named Plaintiff 23 at the top of this -- 24 MR. CRITTON: Correct. 25 THE COURT: -- particular motion, that's EFTA00776384  20 1 the same person. 2 MR. CRITTON: Correct. III. is III., 3 is in that statement, and I don't think 4 Jane Doe was referenced in that statement. 5 THE COURT: Why is Jane Doe mentioned in 6 this motion? It says, "and Jane Doe in federal 7 court," because III. and Jane Doe are the same 8 person? 9 MR. BERGER: May I explain that? 10 MR. CRITTON: No. 11 THE COURT: Hold on. 12 MR. BERGER: We have three clients. One 13 is in federal court, Jane Doe. Mr. Critton 14 wants to take Jane Doe's deposition in these two 15 cases, and III., so she's in front of you 16 as a nonparty on a motion for protective order. 17 THE COURT: I see, but she is your client 18 in the federal court case. 19 MR. BERGER: Yes. 20 THE COURT: The motion for protective 21 order references her as a witness to the matters 22 involving and III. 23 MR. BERGER: Correct. 24 THE COURT: Thank you for that 25 clarification. EFTA00776385  21 1 Go right head. 2 MR. CRITTON: And they represent all three 3 of those individuals. 4 The depositions that were set were set 5 solely in the state court cases, and I think the 6 agreement, so I want to be clear so it's on 7 record is - one of the exhibits I attached was 8 an agreement between Mr. Edwards and I - I'm 9 going to take Jane Doe, and one time 10 as a witness and deal with specifically witness 11 questions, on a second occasion separate and 12 apart -- 13 THE COURT: As a witness in a specific 14 case? 15 MR. CRITTON: No. I don't want -- And 16 maybe there was a misunderstanding. 17 THE COURT: Well, you're going to have to 18 set the deposition in a case. 19 MR. CRITTON: I will set, as an example, 20 Jane Doe's deposition in I will ask her, 21 Jane Doe, whatever questions in any case that's 22 applicable under those circumstances so I only 23 depose her one time as witness, and then we can 24 agree among ourselves that that deposition can 25 be used in all cases. EFTA00776386  22 1 I will take ....'s deposition say in 2 as a witness. I will agree that ff .'s 3 deposition, we take it one time. I'll ask her 4 whatever questions I have in any case that I 5 have. 6 THE COURT: As a witness. 7 MR. CRITTON: Solely as a witness, and 8 then I'll subsequently come back and I will take 9 them one time as a plaintiff in their respective 10 cases. 11 THE COURT: That protocol has essentially 12 been agreed to, correct? 13 MR. BERGER: It's been agreed to, and what 14 Mr. Critton means is that he will take Ego., for 15 example, as a witness in all of the state cases, 16 whether it's our cases, Mr. Garcia's cases, and 17 all the others; is that correct? 18 THE COURT: All the cases that he's aware 19 of. 20 MR. CRITTON: I'm going to ask -- 21 MR. BERGER: Not just the ones that we 22 represent. 23 MR. CRITTON: Correct, all cases, whether 24 they're in state or federal court. I'm going to 25 depose that lady one time as a witness from my EFTA00776387  23 1 perspective. 2 MR. BERGER: Agreed. 3 MR. EDWARDS: We're on the same page. 4 THE COURT: Very well. I'm going to leave 5 that to the attorneys' stipulation as 6 potentially or hopefully clarified on the 7 record. 8 I think it is incumbent, and I'm sure I 9 don't have to say this, but simply to make sure 10 the record is clear, that when you notice these 11 witnesses - or they probably should be noticed 12 through Counsel. I would hopefully have it 13 where it's a global agreement between all of the 14 state and federal court plaintiffs' counsels 15 that are involved in this so that we don't have 16 piecemeal agreements, that could create problems 17 in and of itself, but I trust that all of the 18 cases before Judge Marra, all the cases that are 19 before me in state court - those in front of 20 Judge Marra, of course, are in federal court - 21 so we're going to be working under this omnibus 22 order, for lack of a better term, that hopefully 23 will be agreed to by all of plaintiffs counsels 24 involved because, if not, we're going to run 25 into difficulties with others. EFTA00776388  24 1 MR. CRITTON: We reached an agreement with 2 regard to that. I'm happy to notice every one 3 of them. Without knowing what III. is going to 4 say, I have no idea whether she's involved in 5 some federals. I'll notice everybody in 6 federal. 7 The flip side of that is what Judge Marra 8 said in a consolidation order is you get to 9 depose Mr. Epstein one time, all right. Already 10 Mr. Epstein's been deposed by Sid Garcia in the 11 State, he's been set by in B.B., which is one of 12 your cases, by Mr. Kuvin and the State, and Mr. 13 Berger and Mr. Edwards have started his 14 deposition, so this is kind of like my 15 goose/gander issue. 16 If I'm going to be limited and it's based 17 on an agreement, then I would also like Mr. 18 Epstein not to be thrown up 50 times or 20 times 19 for deposition, and I'm not sure -- That's 20 really not in front of you right now. 21 THE COURT: Right. 22 MR. CRITTON: I raised it in my motion and 23 probably will raise it and touch on it at the 24 hearing on the 8th or whatever date it is. 25 THE COURT: That's fine. Let's go ahead EFTA00776389  25 1 and -- I think right now, as I said before, I 2 really think that at this juncture to deal with 3 Mr. Epstein's deposition would be premature 4 because, number one, I don't have the transcript 5 in front of me, number two, I don't have a 6 detailed motion setting forth exactly what and 7 why his testimony is needed prior to any of the 8 women being deposed, so I would like to move on 9 from that. I would like to get into the 10 substantive issues relative to discovery. 11 I will say right now for the record my 12 ruling on the deposition protocol is going to be 13 this: I have no problem and I will allow the 14 Plaintiffs and/or witnesses to be deposed prior 15 to the presumption or conclusion of Mr. 16 Epstein's deposition in its most basic form and 17 in light of the broad discretion that the Court 18 has relative to discovery. 19 I am not going to treat this case any 20 differently than I would any other case where 21 discovery issues become problematic and are 22 raised before the Court. Again, not that I do 23 not understand the delicate nature of these 24 cases and the issues that are germane to this 25 case that are different than the generic case, EFTA00776390  26 1 but at the same time, simply as it concerns the 2 protocol relative to scheduling the depositions, 3 I don't think that that needs to be deviated 4 from and, therefore, I am not going to do that. 5 So my ruling is that on the issue of 6 essentially whether Epstein's deposition has to 7 be concluded prior to the taking of the 8 Plaintiffs' depositions, either as Plaintiffs or 9 as witnesses, that aspect of the motion is 10 respectfully denied. 11 Let's move on now to the substantive 12 issues relative to discovery of prior sexual 13 activity or current sexual activity of the 14 Plaintiff complainants. 15 MR. CRITTON: As the Court is aware, this 16 is a civil case for damages. Mr. Epstein has a 17 right irrespective of his - certainly has a 18 right to claim his Fifth Amendment privilege, he 19 also has constitutional due process rights for a 20 full and fair hearing in order to defend him. 21 What the Plaintiffs want to do in this 22 instance, which are §§§. and , which are in 23 front of you, what they want to do is they want 24 to restrict the testimony that comes in about 25 them. EFTA00776391  27 1 By their own testimony, these young ladies 2 either were or currently are prostitutes, 3 they're strippers that have worked at Flash 4 Dance, Platinum Gold, Spearmint Rhino, all adult 5 male clubs. My guess is they probably worked in 6 the champagne room, they prostituted themselves, 7 and they've also brought, by their own testimony 8 and by their own - at least certainly by ff .'s 9 statement, she brought 50 other girls to Mr. 10 Epstein's home. 11 They are claiming various counts, but 12 included within the count, significant, 13 intentional infliction of emotional distress. 14 Intentional infliction of emotional distress, 15 based on most of the cases that are read, Your 16 Honor, deal with some outrageous act that occurs 17 on one occasion with that person, and then, as 18 you know, it's a very high standard to prove 19 intentional infliction of emotional distress, 20 but it's that one event that's so outrageous, 21 that's so inflamed that it's beyond the 22 conscience of all reasonableness of really the 23 community or anyone who would look at it. 24 All of these ladies, including §§§. - §§§. 25 came to Mr. Epstein's house, by her own, EFTA00776392  28 1 admission more than 100 times. In her statement 2 or in her - she says, "I brought over 50 girls 3 there." brought girls and she was there on 4 multiple, tens upon tens of occasions. Jane Doe 5 was there on multiple occasions. 6 It's important to know these young ladies' 7 prior sexual history, whether it's consensual, 8 whether it's rape, whether it's molestation by a 9 family member, by an older person, by even a 10 fellow minor under the circumstances, maybe 11 another person of the same sex, you know, what 12 were this individual's experiences, what were 13 their experiences with their families, did she 14 -- Again, I've seen a lot of records in this 15 case from other individuals, it's not just these 16 two, and I attached some that talked about rape, 17 talk about molestation. I've seen records that 18 deal with where the parents had sex with other 19 individuals in front of these young ladies. 20 Jane Doe in this instance claims prior traumatic 21 stress disorder. From what? I don't know. 22 It's relevant, it's material, we're 23 entitled to get that type of information. 24 Again, we're not dealing with admissibility at 25 this point, what we're dealing with is: Are we EFTA00776393  29 1 entitled to get the information? 2 Did Mr. Epstein cause these outrageous 3 damages or these horrific damages that they're 4 claiming, and, again, emotional distress under 5 psychological trauma, mental anguish, 6 humiliation, embarrassment, loss of self esteem, 7 loss of dignity, invasion of their privacy, then 8 they talk about loss of income, a loss of 9 capacity to earn income in the future, a loss of 10 capacity to enjoy life. 11 What the Court's going to see over the 12 next couple of weeks as we bring motions to 13 compel with regard to interrogatories, they 14 won't tell me where they live, they won't give 15 the names and addresses of parents and their 16 siblings - they're seeking millions of dollars - 17 they won't give me tax returns, all right. 18 They don't want to provide any of that 19 information. What they want to do is this: 20 They want to control, in this instance, exactly 21 what information comes in front of this Court, 22 exactly what information comes in front of the 23 Fact Finder, so that they can dump it all onto 24 Mr. Epstein. 25 We believe that the evidence in this case EFTA00776394  30 1 is going to show that these young girls, even 2 prior to Mr. Epstein, had very unusual sex 3 lives, had very unusual sex experiences, which 4 will go to what did Mr. Epstein do under the 5 circumstances or what did they claim he did 6 under the circumstances that caused them 7 damages; that is, what did Mr. Epstein do, 8 separate and apart maybe from an 18-year-old 9 person or a 15-year-old person who may have used 10 an object or a 12-year-old person when they were 11 10 or 11 or 12 or a 40-year-old person like Mr. 12 Epstein, separate and apart from Mr. Epstein, 13 may have done with them at some point in time at 14 an age from 10 up? 15 If they had no sexual experience from age 16 10 to 14, which in their complaints is the first 17 time they allege that they went to Mr. Epstein's 18 house, it's going to be an easy question to 19 answer, "none," that's going to end the inquiry. 20 I don't think that's true, but that's going to 21 end the inquiry. 22 We will not be in a position to defend 23 this case and say, "Okay, you say that Mr. 24 Epstein caused all these problems, well, how 25 about John Smith who you had sex with when you EFTA00776395  31 1 were 12? How old was Mr. Smith?" 2 "Well, he was 20 years old." 3 "What did you do?" 4 "We did X, Y, and Z." 5 "Now, did you find that horrific? Did you 6 find that unusual? What was different about it 7 under the circumstances than the circumstances 8 that you had with Mr. Epstein?" 9 This is a very different case. This is 10 not your typical automobile accident case, and 11 if someone was claiming psychological damages as 12 a result of an automobile accident you would 13 often say, "Okay, they have pain and suffering, 14 but they're really not claiming mental anguish," 15 so the fact that they may have been treated 16 20 years ago or even 10 years ago for depression 17 because they had the death of a child, you would 18 say, "Wait a minute, death of a child, don't 19 think it's relevant to what the person's problem 20 is right now, or maybe I'll let you look at it 21 in camera and I, as the judge, will determine 22 whether it's relevant under the circumstances." 23 This is a sex case and sex is a big issue 24 in here, and what's usual, what's unusual? I 25 guess it depends on the person or the couple or EFTA00776396  32 1 the circumstances, as to what may be typical or 2 usual. We may have six people in the box and 3 what may be typical sex for the people in this 4 room may be very different from them. They may 5 think that we're a bunch of prudes or they may 6 think that this is usual or it's unusual. 7 Each of these girls has their own 8 experiences, they're strippers, they're 9 prostitutes by their own admission. They don't 10 want to give information. They don't want to 11 talk even about their income. 12 Well, wait a minute now. My guess is -- 13 Now, again, I certainly won't speak from 14 personal experiences, but I've heard at strip 15 clubs that men actually pay $20 or $30 maybe for 16 a lap dance, and I've heard that some of these 17 strippers and people who work at these clubs 18 similar to and III. and III', they have 19 something called a champagne room and that even 20 costs more money and even more things happen 21 back there. 22 Again, that's what their livelihood is, 23 that may have been their prior experience, I 24 don't know. I'm certainly not suggesting that 25 their lifestyle is any worse than we as lawyers; EFTA00776397  33 1 that's their lifestyle, they've chosen it. But 2 they're bringing a case seeking millions of 3 dollars under the circumstances, they want 4 millions of dollars, but they want the jury or 5 the Fact Finder to see them through rose colored 6 glasses. 7 I would say one of the best examples is 8 statement. She basically says, "You 9 know, I love Jeffrey, he was good to us. I told 10 every girl I brought, including , you have 11 to do a topless massage and maybe the more you 12 do, the more money you'll get." 13 Okay, so what caused to say, "Okay, 14 I'll do it"? Did she decide right then, did she 15 decide when she got in the car, did she decide - 16 because she's been having to make decisions 17 every place along the way, when she got in Mr. 18 Epstein's house, when she went up the stairs, as 19 she claims in the complaint when she saw Mr. 20 Epstein and he had a towel around him? She 21 could have said at any of those times, "You know 22 what, this isn't for me." So what in her 23 background made it okay under the circumstances 24 or that she felt so comfortable? 25 If it was this outrageous act, this EFTA00776398  34 1 outrageous act with severe, emotional damages, 2 which is the crux of an intentional infliction 3 of emotional distress, it was so severe, oh, but 4 I went back 99 more times, maybe 100 times, or I 5 went back 20 more times or I went back 10 more 6 times under the circumstances. 7 What we're looking for is to be able to 8 ask - again, number one, I don't have the time, 9 but, secondly, I set it forth in the motion, but 10 we're in the discovery stage, we're only in the 11 discovery stage, not the admissibility stage. 12 THE COURT: Two minutes to wrap up, 13 please. 14 MR. CRITTON: And the Ballast case is 15 probably really a good description. 16 This same issue came in front of Judge 17 Garrison, it's Question 18 with , it was the 18 identical question that said: List separately 19 the names, addresses, and phone numbers of all 20 males with whom you have had sexual activity 21 since the age of 10, and set forth -- You 22 don't have it, but -- 23 THE COURT: And that's the amazing thing, 24 I've got to tell you - and I won't take your 25 time up - but Wednesday afternoon I had six EFTA00776399  35 1 motions for summary judgment set in a half day 2 set, and the incredible thing that happens is I 3 get the response to the Movant's motion for 4 Summary Judgment, a Reply to the Response to the 5 Motion for Summary Judgment, but oftentimes I 6 don't get the motion. In other words, it's 7 stuck, in that case, now a 39-volume file. 8 So, you know, and it's the same thing 9 here, I don't really have the discovery in my 10 hands to know precisely what's being asked. I 11 know there are snippets that have been 12 referenced in both sides' respective memoranda, 13 but I don't have the actual discovery in front 14 of me, so that would be helpful. 15 MR. CRITTON: May I approach? 16 THE COURT: But it's not unusual, even 17 among the best lawyers in the area, that it 18 seems to be an interesting dynamic though that 19 you all argue so passionately and at length in 20 your responses and generically how this stuff is 21 important, yet the actual questions or the 22 actual production requests are not included, and 23 you guys are not the only ones, it happens with 24 frequency. 25 MR. CRITTON: May I approach? EFTA00776400  36 1 THE COURT: Thanks. Is that the same? 2 MR. CRITTON: This is the Garrison case, 3 it was Question 18, which the Judge directed -- 4 MR. BERGER: Judge, our objection is to 5 Interrogatory 19, which is quoted in our motion. 6 MR. CRITTON: It's the same. 7 THE COURT: I know it's quoted, don't get 8 me wrong, but I like to get the context of the 9 entire discovery before I take questions sort of 10 out of sequence, but this doesn't have a 11 question 19, by the way. 12 This question says, quote - and, Mr. 13 Berger, follow along if this is the same 14 question No. 18 of the case - "list 15 separately the names, addresses, and phone 16 numbers of all males with whom you have had 17 sexual activities since the age of 10, by year, 18 up through your current age. Describe the 19 nature of sexual activity, the dates, and 20 whether you received money or consideration from 21 the person," and is that the same question? 22 MR. BERGER: Yes. 23 THE COURT: So that was simply 18 in this, 24 19 in the one that you are objecting to. 25 Now, are there any other questions, Mr. EFTA00776401  37 1 Berger, that you are objecting to, because, 2 again, you dealt with it globally, and while you 3 dealt with it very well globally, I want to know 4 what the specific questions are. 5 MR. BERGER: Well, there are objections 6 that are the subject of motions to compel that 7 the Defense filed, so there are additional -- 8 THE COURT: Which other ones are they? 9 MR. BERGER: Now we get into the topic of 10 hearings that are coming up. 11 THE COURT: Well, I don't want to get into 12 topics of hearings that are coming up. I just 13 want to know: Are there specific questions 14 raised that are on the table that I need to rule 15 on? 16 MR. BERGER: That is the specific 17 question -- 18 THE COURT: That is the specific question. 19 MR. BERGER: -- of most importance to us. 20 THE COURT: All right. Very well. That's 21 what I'm interested in. 22 MR. BERGER: That's why we quoted it. 23 THE COURT: And I'm not taking issue with 24 that, it's just that I didn't actually see it in 25 context with the rest of the interrogatories, so EFTA00776402  38 1 it leads me with a little bit of a handicap, I 2 hope you can appreciate that. 3 MR. CRITTON: Judge Lewis also dealt with 4 this issue; I attached a copy of her order. 5 THE COURT: I read that also. 6 MR. CRITTON: And her transcript dealt 7 specifically with the same issue. 8 In the Ballast case that we cited, I don't 9 know whether the Court had a chance to look at 10