EFTA01122989.pdf

Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 1 of 113 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No.: 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOES #2, Petitioners, - Vs- UNITED STATES, Respondent. HEARING BEFORE THE HONORABLE KENNETH A. MARRA Friday, August 12, 2011 United States Federal Courthouse West Palm Beach, Florida 33401 2:00 - 4:19 IMO. Stenographically Reported By: Melinda L. Colchico, FPR, RDR, CRR 5 61-8 35-022 0 EFTA01122989 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 2 of 113 2 1 APPEARANCES: 2 On behalf of the Petitioners: 3 Brad Edwards, Esq. Farmer Jaffe Weissing Edwards Fistos & Lehman 4 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 5 (954) 524-2820 6 Paul G. Cassell, Esq. USJ Quinney College of Law 7 University of Utah 332 South 1400 East, Room 101 8 Salt Lake City, Utah 84112-0730 (801) 585-5202 9 Jay C. Howell, Esq. 10 Jay Howell & Associates 644 Cesery Boulevard, Suite 250 11 Jacksonville, Florida 32211 (904) 680-1234 12 13 On behalf of the Respondent: 14 Dexter A. Lee, Esq. Marie Villafana, Esq. 15 Assistant U.S. Attorneys 99 NE 4th Street, Suite 300 16 Miami, Florida 33132 (305) 961-9320 17 18 ALSO PRESENT: 19 Roy Black, Esq.. Black Srebnick Kornspan & Stumpf 20 201 S. Biscayne Boulevard, Suite 1300 Miami, Florida 33131 21 (305) 371-6421 22 Bruce Reinhart, Esq. 250 S. Australian Avenue 23 Suite 1400 West Palm Beach, Florida 33401 24 (561) 202-6360 25 561-835-0220 EFTA01122990 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 3 of 113 1 PROCEEDINGS 2 3 THE COURT: Good afternoon. Please be seated. This 4 is the case of Jane Doe No. 1 and Jane Doe No. 2, versus United 5 States, Case No. 08-80736. Will counsel state their 6 appearances, please. 7 MR. LEE: Good afternoon, Your Honor. May it pleas 8 the Court. For the United States of America, Marie Villafana, 9 Assistant United States Attorney, and Dexter Lee, Assistant 10 United States Attorney. Good afternoon. 11 THE COURT: Good afternoon. 12 MR. EDWARDS: Good afternoon. On behalf of Jane Does 13 1 and 2, Brad Edwards, as well as my co-counsels, Paul Cassell 14 and Jay Howell. 15 THE COURT: Good afternoon. 16 MR. BLACK: Your Honor, good afternoon. Roy Black 17 appearing on behalf of the intervening lawyers, Black, Weinberg 18 and Lefkowitz. 19 THE COURT: Good afternoon. 20 MR. REINHART: Good afternoon, Your Honor. Bruce 21 Reinhart on behalf of myself. 22 THE COURT: Good afternoon. Anyone else that's going 23 to be participating as an attorney? 24 All right. We have a number of matters to go over 25 today. I thought the first thing I should do is figure out 561-835-0220 EFTA01122991 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 4 of 113 4 1 who's going to be participating in the proceedings. So I think 2 I should deal with the intervenors' motions first before we get 3 to any of the substantive motions. 4 So, Mr. Reinhart, why don't I hear from you first. 5 MR. REINHART: Good afternoon, Your Honor. 6 THE COURT: Good afternoon. 7 MR. REINHART: Let me start by saying I don't want to 8 be here and I shouldn't be here but I feel like I have to be. 9 What is pending before you today is a motion by the plaintiff. 10 to address what they purport to be violations of the Crime 11 Victims' Right Act by the government. However, buried in tha: 12 motion, for reasons that escape me to this day, are allegation.:, 13 that I, who am not a party to this litigation, have never beer 14 counsel in this litigation and was minding my own business, 15 have now been alleged to have violated the Department of 16 Justice's regulations and the Florida Bar rules. 17 If you look at the face of the motion, it's clear 18 that there's absolutely no reason for that to be in the motion 19 other than it's a personal attack for the purpose of harassment 20 and abuse. To my knowledge, these allegations have never been 21 sent to the Florida Bar, even though Mr. Edwards, as a member 22 of the bar, would have an obligation to report them if he 23 believed they were true. But he hasn't. They have never been 24 reported to the Department of Justice, even though there are 25 civil and criminal sanctions, if, in fact, they believed it was 5 61-8 35-022 0 EFTA01122992 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 5 of 113 ti 1 true and they believed I did what they said I did. 2 Rather than putting these allegations into that sot: 3 of a forum, where I would have a chance to respond and the 4 investigation would be confidential and I could clear my name 5 in private, they've thrown them into this litigation in a 6 public pleading and now they say I shouldn't be allowed to 7 respond to it. 8 THE COURT: Well, haven't you really responded to it? 9 MR. REINHART: Judge, I've said what I want to say 10 but there's been no finding. There's been no -- frankly, 11 there's been no inquiry why in the first place they did what 12 they did, and I think that's really the issue before the Court 13 today. It's not the merits of whether what they say is true or 14 not true. It's not, but that's not the issue for you today. 15 The issue is whether the Court is going to sanction this sort 16 of behavior and whether we're going to have a legal system 17 where I could stand here in a commercial litigation case and 18 put in a pleading that my neighbor is a tax evader or that th 19 guy down the street is cheating on his wife. I mean, we have 20 rules of court that are supposed to limit the facts at issue to 21 the facts at issue. And if we start letting people simply make 22 ad hominem attacks outside of the four corners of the case, the 23 Court can't allow that. 24 So what the Court ought to do, most respectfully, in 25 this case, is to -- whether you allow me to intervene and 561-835-0220 EFTA01122993 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 6 of 113 6 1 pursue it myself or whether you do it on your own, you ought to 2 convene some sort of a proceeding and make the plaintiffs 3 justify why they put these allegations in this pleading when 4 they so clearly don't belong there and what, if any, 5 investigation they did to support them. And that's what I'm 6 asking you to do today is to simply convene that process, and 7 if they complied with the rules of the court and they did their 8 sufficient investigation, then the proceeding will show that. 9 And if they were reckless and they were malicious and they did 10 it just because they could, they ought to be sanctioned for it, 11 and the Court ought to send a message that you're not going to 12 tolerate that sort of behavior. 13 So, Judge, in short, that's what I'm asking you to 14 do, either exercise your discretion under Rule 24(b) to allow 15 me to be a permissive intervenor and pursue those allegations 16 myself, or to exercise your authority under Rule 11 to 17 sua sponte issue an order to show cause and convene that 18 proceeding. 19 THE COURT: If I let you intervene to try and clear 20 your name from what you consider a slanderous or libelous 21 attack, aren't I essentially inviting anyone who has a 22 slanderous or libelous or defamatory statement made against 23 them in litigation, inviting them to come in and intervene in 24 court and have the court conduct a mini-trial on whether or not 25 the allegations are true and -- I mean, I'm basically going to 5 61-8 35-022 0 EFTA01122994 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 7 of 113 1 open up the legal system to anyone who feels offended by 2 something that's said in court to come in and start 3 mini-lawsuits within a lawsuit. 4 I'm a little concerned about, you know, opening thr 5 door to that kind of a process. 6 MR. REINHART: And I understand that, and I agree. 7 However, first of all, this is permissive -- I'm requesting 8 permissive intervention under Rule 24. So in the first 9 instance, you have the discretion to be the gatekeeper in tha: 10 instance, not to let everybody in. I'm not saying I have an 11 absolute right to be here. I'm saying you have the discretion 12 to allow me to be here and to argue these points. So that's my 13 first response, is the Court can act as a gatekeeper. And 14 specific to the facts here, all you have to do is look at the 15 face of the pleading to realize that these allegations have 16 nothing to do with this cause of action. It's not even close. 17 I would think in another case when the Court might 18 look at the face of the pleading and say, well, I can 19 understand why this might be here, you can exercise that 20 gatekeeping function. In the alternative, Judge, I'm not 21 asking you to let everybody in. I'm asking you, as the Coln. , 22 to police your own courtroom and issue an order to show cause 23 for behavior that's occurred in front of you that at least on 24 its face is improper. And that's certainly a proper function 25 for the Court. Again, that doesn't set a precedent that 5 61-8 35-022 0 EFTA01122995 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 8 of 113 P 1 anybody who wants to complain can complain. It's the Court 2 policing its own backyard. 3 THE COURT: All right. Thank you. 4 Who wants to respond? Mr. Edwards? 5 MR. EDWARDS: Thank you, Your Honor. Your Honor, a:: 6 you recognized from our pleadings, we feel that this particular 7 motion serves no purpose but to delay and prejudice the 8 plaintiffs from achieving justice. As you know, we represent 9 two victims of many victims of molestation by Jeffrey Epstein, 10 and there's one issue here and that's whether or not the Crim 11 Victims' Rights Act and their rights under that act were 12 violated. 13 First, we don't believe that Mr. Reinhart has 14 standing to make the arguments or 15 THE COURT: Well, who has standing to make the 16 arguments other than the person that you attacked in your 17 motion? 18 MR. EDWARDS: Well, a nonparty in this proceeding 19 does not have standing to make a Rule 11 sanction motion. So 20 he's asking for -- 21 THE COURT: He's asking to come into court so he can 22 seek that kind of relief. 23 MR. EDWARDS: That's the kind of satellite litigation 24 we think should be avoided here. In fact, the case law is 25 clear that permissive intervention, if denied, is virtually 5 61-8 35-022 0 EFTA01122996 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 9 of 113 1 never overturned on appeal because we don't want to encourage 2 this type of satellite litigation. 3 A Rule 11 standard, as we know, is an objective 4 standard and the analysis is whether a reasonable attorney in 5 like circumstances could believe that his actions were 6 factually and legally justified. 7 We believe there was a bad deal that went down We 8 have circumstances here that we are still trying to figure ou: 9 how it happened and why it happened, and the circumstances that 10 we had before we put them into these pleadings is simply that 11 Mr. Reinhart was a U.S. Attorney from 1996 through 2008; yet on 12 October 23rd, 2007 -- 13 THE COURT: We don't need to go over all the facts 14 again. I know what the facts are. I know what you said in 15 your pleading. I know what Mr. Reinhart said in response. And 16 I don't -- I'm not here to decide whether there was or was no. 17 a bad faith allegation. I'm here to decide whether or not I 18 should allow Mr. Reinhart into the proceeding in order to 19 litigate that whole issue. 20 MR. EDWARDS: And we're asking that you deny that 21 motion. If it's granted, we would like to take discovery on 22 that matter, including his deposition. 23 THE COURT: All right. Thank you. 24 Mr. Lee, do you have anything you wanted to say? 25 MR. LEE: Yes. Thank you, Your Honor. We did not 5 61-8 35-022 0 EFTA01122997 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 10 of 113 IL 1 oppose Mr. Reinhart's motion. We basically view this as 2 matter between the petitioners' counsel and Mr. Reinhart. 3 THE COURT: All right. At this point, I'm going to 4 reserve ruling. I'm not going to -- I'm kind of reluctant tm 5 grant the motion, but I'm going to give it some further 6 thought. There's no need to have a ruling on that today for 7 purposes of Mr. Reinhart's concerns. So I'll reserve ruling. 8 All right. Let me hear from Mr. Black on the 9 intervention by the attorneys. 10 MR. BLACK: May it please the Court, and good 11 afternoon. 12 THE COURT: Good afternoon. 13 MR. BLACK: We have filed -- the three lawyers who 14 previously represented Mr. Epstein have filed for our right to 15 intervene under Rule 24(a) as an intervention of right becaus 16 our issue relates to the property or the transaction. 17 THE COURT: Are you saying you have is it as a 18 matter of right or -- 19 MR. BLACK: Yes. 20 THE COURT: permissive intervention? 21 MR. BLACK: No, as a matter of right. I just have 22 few cases to cite to the Court. 23 In Chiles versus Thornburgh, it's an Eleventh Circuit 24 case, 1989, 865 F. 2d 1197, the court says, "The Supreme Cour' 25 has held that an interest under Rule 24(a)(2) means a 561-835-0220 EFTA01122998 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 11 of 113 1 1 'significantly protectable interest.'" 2 The Eleventh Circuit has gone on and In Re: Grand 3 Jury Matter, which is 735 F. 2d 1330, to say that -- it was a 4 motion to intervene. The district court disallowed it. It 5 went up to the circuit. It was remanded, and the court says: 6 We have recognized that a district court should allow 7 intervention by a client in the first instance as soon as the 8 attorney/client privilege issue is raised. 9 That was a grand jury proceeding dealing with a 10 client seeking to protect his attorney/client privilege, and 11 the court held that intervention was as a matter of right. 12 Now, that obviously was a criminal investigation. 13 In terms of the -- on the civil docket, this court 14 decided in El-Al Residences v. Mt. Hawley Insurance, which is 15 at 716 F. Supp. 2d 1257, an opinion by Magistrate Judge 16 McAliley, in which he says that the law in this circuit and 17 others is clear that this court must allow intervention by a 18 client in the first instance as soon as the attorney/client 19 privilege is raised, citing cases. Colorable claims of 20 attorney/client and work product privilege are a textbook 21 example of an entitlement to intervention as a matter of right, 22 and citing particular cases. 23 THE COURT: Now, let me ask you about that question 24 of privilege. As I understand your motion, you're claiming 25 that documents that were exchanged between yourself and the 561-835-0220 EFTA01122999 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 12 of 113 12 1 other attorneys representing Mr. Epstein and the United Stater 2 Attorney's Office and maybe the State of Florida I don't 3 remember if the -- 4 MR. BLACK: It is just the United States Attorney, 5 Your Honor. 6 THE COURT: Okay. The United States Attorney. 7 During the negotiations that resulted in the non-prosecution 8 agreement are somehow work product, am I correct? 9 MR. BLACK: Yes, sir. 10 THE COURT: Okay. How can a letter between you and 11 your co-counsel and an adversary in a criminal prosecution be 12 considered work product, if it's given to the adversary? 13 MR. BLACK: Yes, sir, and I am happy to answer that 14 question. In order to do so, I have to give the Court some 15 background as to the duties and functions of lawyers as they 16 are of this date in our sentencing system, under the guidelines 17 system and under the particular rules, not only of the court 18 but of the ethical rules of the ABA and the Florida Bar and 19 rules issued by the courts. 20 To begin with, the Supreme Court has recognized fol 21 long time that plea bargaining is an essential part of the 22 administration of justice. It all goes back to the Santobellc, 23 case. That was 40 years ago. The world has changed 24 significantly since then. 25 I just looked at the statistics. The last year 561-835-0220 EFTA01123000 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 13 of 113 13 1 could find in 2005, 87 percent of all federal criminal cases 2 were resolved by a guilty plea and 3.9 percent were resolved by 3 a trial. We've turned into a system of guilty pleas rather 4 than a trial system. And because of that, the courts have pu: 5 a lot of duties and obligations on lawyers dealing with this 6 plea bargaining process. And as a result of that, the courts 7 and the rules have added sanctions -- excuse me, safeguards to 8 protect us because of communications made during the course c: 9 this plea bargaining process. And I think that is really wha: 10 we trying to get to here. There are safeguards that have been 11 in effect since -- for almost 80 years. And there's a case, 12 United States v. Herman back in the seventies from the Fifth 13 Circuit, saying that the -- the old Fifth Circuit, that we have 14 recognized a type of immunity for any statements made during 15 the course of plea bargaining. And then the Supreme Court and 16 Congress enacted Rule 11(e)(6), which became Rule 11(f), and, 17 of course, now refers us to Rule 410. So those rules provide 18 safeguards. What they do is they say if you engage in the plea 19 bargaining process, there is an immunity for the statements 20 that are made. 21 Any statements that relate to the plea bargaining 22 process are immunized. They don't use the word "immunization" 23 but they make it clear that that's the type of protection or 24 cloak that's given to these kind of communications. 25 THE COURT: You're talking about inculpatory 561-835-0220 EFTA01123001 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 14 of 113 14 1 statements, aren't you? 2 MR. BLACK: Any statement; any statement made during 3 the course of plea bargaining. Rule 410 speaks, by the way, of 4 civil and criminal, and it says nothing about incriminating or 5 inculpatory or admissions of guilt. Any statement made during 6 the course of the plea negotiating process is given a type of 7 immunity. 8 THE COURT: I thought that rule relates to admitting 9 statements in evidence during the course of a trial; not that 10 it's a privileged statement that can never be disclosed. Am I 11 incorrect about that? 12 MR. BLACK: Well, I don't -- I'm not -- that's a very 13 good question that we have struggled some with. What are the 14 obligations of, for example, the United States Attorney when 15 they receive communications from defense counsel under Rule 1_ 16 and under Rule 410? Under Rule 11, they cannot even make 17 derivative use of it so they couldn't take that information and 18 give it to the FBI, for example, to continue investigating. 19 I don't believe that they could give to it third 20 parties. I think it would be a violation of the rule to use it 21 in any way other than in determining the type of plea that they 22 would offer to a defendant. 23 Beyond that, I do not believe that it can be used for 24 any purpose by the government, and I don't believe that anybody 25 could use it for any purpose. But even so, in this case, the 561-835-0220 EFTA01123002 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 15 of 113 1 purpose the plaintiffs want for this is to use it in 2 litigation. So we don't have to worry about if they're going 3 to disseminate it to the media or use it to write a book, or 4 what have you. They intend to use it as evidence in this 5 proceeding. So I don't know that we need to necessarily 6 address any other kinds of uses of this material. 7 THE COURT: Is this material -- first of all, how 8 does -- how do the plaintiffs in this case know about it? 9 Don't they already have it in their possession? 10 MR. BLACK: No. They have obtained the government 11 responses and communications to us. The courts have 12 redacted -- or the government has redacted any of our 13 communications to the government. Now, there are extensive 14 communications. I don't have it here, but my folder is about 15 this thick and I have never been in a case that has had a— 16 much, particularly written communication, from defense counsel 17 to the government as this case has. 18 We have discussed with them a panoply of things. 19 It's the classic opinion work product that we talk about, wha: 20 the statutes mean, what the import of the statutes are, what 21 the cases are, what the discretion of the Attorney General is. 22 We discuss federalism, the differences between state and 23 federal law enforcement; whether or not the government should 24 proceed with this case because of various policy reasons. This 25 is classic opinion work product that we send to the government. 561-835-0220 EFTA01123003 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 16 of 113 11 1 Now, I know what the Court's ultimate question is: 2 Well, if you send it to the government, why should I give it 3 any kind of confidentiality or privilege? The reason I'm going 4 through this is that we criminal lawyers know that today 5 anything that we send to the government is under this cloak o 6 a type of immunity; that it cannot be used for anything. The 7 government cannot use it in their case. They can't use it in 8 their investigation. They can't use it for anything other than 9 the purpose for which we give it to them, and that's to 10 determine whether or not we can come to a plea negotiation 11 And one of the policy decisions here, and this is why 12 I believe that a privilege applies, is that if the Court should 13 say a civil plaintiff could obtain our communications with the 14 government, in which we discuss everything in the world about 15 this client, and use it in a civil case against the client, all 16 this is going to do is to begin to prevent us from having those 17 kind of communications. And all these cases about plea 18 bargaining say that the most important thing is to have open, 19 honest and frank discussions between the parties to see if any 20 kind of agreement can be reached, and since you have these open 21 and frank conversations you don't have to worry that these 22 materials can in any way be used against your client. 23 THE COURT: All right. Do you have any cases that 24 address this principle in the context of -- similar to what we 25 are doing, with where someone was trying to get this kind of 561-835-0220 EFTA01123004 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 17 of 113 1 information in a civil case? 2 MR. BLACK: I have never seen a case, a civil case, 3 in which a third party plaintiff has been able to obtain 4 letters and communications and briefs of defense counsel sent 5 to a prosecutor in order to seek a plea bargain. There is no 6 such case. 7 THE COURT: And what cases are you relying on for the 8 proposition that these are cloaked with some type of privileg 9 of non-disclosure? 10 MR. BLACK: Yes, sir. I would rely on United State 11 versus Herman, which is 544 F. 2d 791. That's a Fifth Circui - 12 case of 1977. And, of course, the classic case is Santobelle. 13 For some reason I don't have it right here in my folder, 14 although I've got it right here, I believe, which is United 15 States Supreme Court at 404 U.S. 257. 16 So those talk about the safeguards. I just wanted to 17 add two things to this, after I pick up my notes. The 18 courts -- in addition to encouraging plea bargaining -- issued 19 a series of opinions starting in the late 1990s, starting with 20 the Second Circuit, moving to the Ninth Circuit, and now all 21 the circuits do this, in which they say that defense lawyers 22 are ineffective and commit malpractice if they do not 23 communicate with the prosecutor in seeking a plea bargain. 24 There's one case, United States v. Leonti, which is 25 Ninth Circuit case, which says that you not only have to 561-835-0220 EFTA01123005 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 18 of 113 1 communicate with the prosecutor, you have to go with your 2 client during the briefings. You have to keep them advised 3 to what your client is doing and you have to follow this all 4 the way through the end. So the courts put an obligation cn 5 to follow through on this. 6 Now, to get to the work product privilege 7 THE COURT: Before you move on -- 8 MR. BLACK: Yes, sir. 9 THE COURT: -- I don't remember you citing thes. 10 cases or making this argument in your brief. Did I miss it or 11 is this a new twist on what you've -- based upon my question to 12 you? Or is this a new argument that you're raising that you 13 didn't raise before? 14 MR. BLACK: Well, in our -- we filed a motion for 15 intervention and generally set forth what we I intended to do, 16 and the plaintiffs then responded saying that, we object to 17 intervention but request the right to brief whether or not the 18 work product privilege applies if we're granted intervention. 19 So we're at the stage of intervention not at the time 20 of developing the scope of what the privilege is, but the Court 21 asked me, you know, obviously what the bottom line is. But I 22 think that the only real issue here is intervention. I'm happy 23 to discuss, you know, the contours of the privilege and why it 24 applies in this case. 25 THE COURT: So you're saying -- your position at this 561-835-0220 EFTA01123006 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 19 of 113 19 1 point is, I've made an assertion of privilege; I as -- just on 2 that assertion alone, without regard to the merits of whether 3 the documents are or are not privileged, your mere assertion o: 4 the privilege requires me to let you in in order to try and 5 defend that claim? 6 MR. BLACK: Well, I don't think it's quite that cut 7 and dry. I have made -- I have asserted the privilege. I have 8 to have some basis for it. In other words, I couldn't just 9 make some frivolous comment and say, you know, there's an 10 attorney/client privilege or this or that. I think I have to 11 make some statement that there is some good faith basis for 12 saying this. And in our papers, we did this. 13 I'm happy to say more, but I think there's certainly 14 enough here for the Court to say that it is a matter that is of 15 serious concern and that we ought to be able to intervene in 16 order to address it with the Court. Because if we don't 17 address it, it will be lost. 18 THE COURT: All right. So, again, I'm trying to make 19 sure I didn't miss something in the papers. As I understood 20 your moving papers, you claim that these are work product 21 privileged documents or there was some grand jury material 22 involved in this. 23 MR. BLACK: Yes. There is some 6(e) material as 24 well. 25 THE COURT: All right. And, again, maybe I missed it 561-835-0220 EFTA01123007 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 20 of 113 20 1 in all the materials I had to go through for today, but did you 2 make the claim in your papers that it's work product because 3 part of the attorney -- criminal defense attorney's 4 responsibility is getting into plea negotiations and there'-, 5 this privilege of communications with the prosecutors in 6 dealing with plea negotiations; was that line of -- 7 MR. BLACK: Yes. 8 THE COURT: -- reasoning made? 9 MR. BLACK: Right, because that's all these papers 10 are. We said it's privileged because of these 11 communications, because of the importance of keeping open and 12 frank communications, and that it fits under the privilege. 13 THE COURT: I'm sorry. I didn't mean to interrupt 14 you. What else did you want to say? 15 MR. BLACK: All right. The other thing that I wanted 16 to mention is that there are the restatement of the law 17 regarding lawyers in the latest -- from the American Law 18 Institute, used as an example under the purpose of 410, where 19 party actually sends documents to the government to examine 20 under a limited -- under confidentiality and limited use, and 21 the American Law Institute says that does not waive the work 22 product privilege. 23 The difference -- I don't want to get too deep into 24 it right now, but the difference between the two is you can 25 give work product to other people and not waive its type of 561-835-0220 EFTA01123008 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 21 of 113 1 work product; whereas you do in the attorney/client privilege. 2 As soon as you give anything under the attorney/client 3 privilege to a third party, you waive it, but not under work 4 product. If it still has some protection associated with it, 5 the question is, under work product, did you give it to people 6 just to use however they want or was there some limitation on 7 it? And what's important here is the things that were sent to 8 the government -- and while we were adversaries at the time, 9 although we no longer became adversaries -- it was under the 10 protections that were given to these materials. 11 And I would -- there's one case I would analogize to, 12 although it's not exactly, obviously, the same. Judge Marcus 13 decided this case dealing with an American Airlines Crash neat 14 Cali, Colombia and American Airlines was part of a program 15 where its pilots could report FAA violations to them and to the 16 FAA and it was considered confidential. 17 Judge Marcus, while he was on this court, said that 18 under Rule 501 -- even if you don't find any of these other 19 privileges, under 501, where you can accept common law 20 privileges, he said, I would find a limited common law 21 privilege for a reporting function like this because it is so 22 important to prevent airline disasters that I think that thee: 23 things ought to be privileged to facilitate open and frank 24 discussions between the pilots and the FAA, and what have you, 25 because it's too important. And, certainly, this fits under 561-835-0220 EFTA01123009 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 22 of 113 1 that same type of a rubric. 2 If we have a problem with work product, I think tha: 3 we can find a common law privilege of communication here 4 because of the importance given to plea negotiations that would 5 keep these out of the hands of the plaintiffs who intend to use 6 it against our clients. 7 So I think for a number of reasons this court should 8 allow this intervention. I don't think now is the time to make 9 the decision or the ultimate decision. But I would say this: 10 If there's any kind of balancing here, the importance of 11 protecting communications in plea bargaining today is very 12 important. It's important to this court, to all the courts 13 dealing with trying to resolve criminal cases. And all the 14 cases say that's something that ought to be encouraged. 15 The plaintiffs, who have already filed for summary 16 judgment, who have said numerous times they have all the 17 evidence they need, certainly have a very low, if any, need for 18 anything from us to try to prove their case. So if there's any 19 kind of a balancing test here, I think that it certainly goes 20 in favor of protecting these materials. 21 THE COURT: What do you think in these materials is 22 protected under Rule 6? 23 MR. BLACK: I think that all the materials that the 24 plaintiff is requiring are -- oh, under 6(e)? 25 THE COURT: Yes. 561-835-0220 EFTA01123010 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 23 of 113 23 1 MR. BLACK: Under 6(e), what happens is that in 2 number of the letters we discuss materials that we have been 3 shown or know of, like names of witnesses, names of victims anc 4 what have you. That goes back and forth. That is obviously 5 grand jury material. Now, I can't say that there's a large 6 amount of that. There is some discussion of those things in 7 these letters, but I wouldn't say that it's more than 8 10 percent of them. The rest of them are just all the lawyet 9 talking about the law and that type of thing. 10 THE COURT: And what standing would you have to 11 complain about grand jury material being released? 12 MR. BLACK: I think that any officer of the court has 13 standing to complain about the dissemination and violation -- 14 of grand jury materials in violation of 6(e). I don't know 15 that anybody needs a particular standing for that. 16 THE COURT: I mean, if the government I don't know 17 what the government's position on that is. But if the 18 government isn't concerned, you think you can step in and sal., 19 hey, you're not honoring your obligations under 6(e); I'm going 20 to step in? 21 MR. BLACK: Actually, there are times when we do 22 that. For example, if a government agent should disseminate 23 grand jury materials to the news media, there have been times 24 when we have made complaints for violations of 6(e). And I'vt 25 even -- I have filed letters with the Department of Justice to 561-835-0220 EFTA01123011 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 24 of 113 24 1 the Attorney General complaining about prosecutors, and I won't 2 mention any names -- not in this case -- who have disseminated 3 6(e) material in violation of the rules. So I think that any 4 party can make a complaint. 5 THE COURT: I assume you've done that when it 6 adversely affected one of your clients? 7 MR. BLACK: Well, obviously, because -- 8 THE COURT: Not because it -- just to protect the 9 system? 10 MR. BLACK: Your Honor is exactly right. This is a 11 highly adversarial system and the only reason I'm objecting to 12 it now is because it's beneficial to my client. I'm not doing 13 it out of any eleemosynary intent 14 THE COURT: Thank you, sir. 15 MR. BLACK: Thank you, Your Honor. 16 THE COURT: Mr. Edwards. 17 MR. EDWARDS: Your Honor, we are asking that 18 Your Honor deny the motion to intervene in this case. 19 Mr. Black and these attorneys have not intervened