EFTA00723218.pdf

YE, BURtvtAN, CRITTON LUTTIE R&COLEMAN.LLY YOUR TRUSTED ADVOCATES A LIMITED LIABILITY PARTNERSHIP J. MICHAEL BURMAN. PAN ADELQI,PI J. BENAVENTE GREGORY W. COLEMAN. PA. PAPALIOAL/INV7411GATOR ROBERT D. CRITTON, JR. P.A. JESSICA CADWEU. BERNARD LESEDEKER. BOBBIE M. MCKENNA MARK T. LL/TTIER. P.A. ASHLIE STOKEN-BARING JEFFREY C. PEPIN BETTY STOKES PARALEGALS MICHAEL J. PIKE HEATHER. MCNAMARA RUDA RITA H. BUDNYK OP COUNSEL DAVID YAREMA December 9, 2009 ED RICCI I FIORJOA BOARD GUMMED CM!.TRW. LAWYER SPECIAL CONSUMER JUSTICE COUNSEL IAOMITIIID TO PRACTICE IN IRMO* AND COLORADO BY HAND DELIVERY Judge Donald Hafele Fifteenth Judicial Circuit Palm Beach Conn Courthouse Re: acember 14, 2009 UMC Hearing v. Jeffrey Epstein CASE NO.: 502008CA037319)OOOCMB AM Dear Judge Hafele: ll's Motion for Enclosed, please find Jeffrey Epstein's Response in Opposition to before Your Honor on December Inspection and to Compel Discovery, which are set for hearing 14, 2009 at 8:30 a.m. The case law is also enclosed. id your Honor have any questions or concerns regarding the foregoing, please contact th 'gned's office. V ours, Critton, Jr. Enclosures cc. Spencer Kuvin, Esq. (via facsimile w/o enclosures) Jack A. Goldberger, Esq. (via facsimile w/o enclosures) • PHONE: • PAX: • MAILJNBCLCIAW.COM WWW.BCLCLAW.COM EFTA00723218  IN THE COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502008CA037319XWMB AB Plaintiff, v. JEFFREY EPSTEIN, Defendants. EPSTEIN'S RESPONSE IN OPPOSITION TO MOTION FOR INSPECTION AND TO COMPEL DISCOVERY AND MOTION FOR PROTECTIVE ORDER AND INCORPORATED MEMORANDUM OF LAW Defendant, JEFFREY EPSTEIN ("Epstein"), by and through his undersigned attorneys, hereby files his Response in Opposition to Plaintiffs, ("."), Motion for Inspection and to Compel Discovery (Photographs) (the "Request") (attached as Exhibit "A") and further moves for a protective order pursuant to Fla. R. Civ. P. 1.280(c), and states: I. Introduction 1. Mr. Epstein's deposition was set for September 2, 2009, and Mr. Epstein was in attendance for said deposition. Directly after asking Mr. Epstein his name, Mr. Kuvin then asked Mr. Epstein, "[ijs it true, sir, that you have what's been described as an egg-shaped penis." Accordingly, Mr. Kuvin immediately set the tone of the deposition in a sarcastic and demeaning manner in an effort to harass, embarrass, humiliate and intimidate Mr. Epstein. Mr. Kuvin continued with this line of questioning EFTA00723219 i. v. Epstein Case No. 502008CA037319XXXXMB AB Page 2 of 14 by referencing a document that Mr. Kuvin did not provide to the witness or to undersigned counsel and then by asking the following: Isjir, according to the police department's probable cause affidavit, one witness described your penis as oval shaped and claim[ed], when erect, it was thick towards the bottom but was thin and small - - towards the head portion, and called it egg-shaped . . ." It was clear that Mr. Kuvin's goal was to use the deposition process to embarrass, humiliate, intimidate and harass Mr. Epstein and thereafter contact the media and provide it with a copy of said deposition. 2. One day after the deposition and only a few days before the video of Epstein's deposition was released to the media, on September 3, 2009, served her Request seeking to photograph Epstein's penis. Obviously, this was done in an effort to bolster media attention and to harass, intimidate and humiliate Epstein. 3. Interestingly, Plaintiff's deposition has yet to occur, and her interrogatory responses and her Complaint do not provide that she ever saw Epstein's penis or that he penetrated her with his penis.' In fact, once deposition occurs it will be clear that she never saw Epstein's penis, which is consistent with what she told others. Accordingly, at least at this juncture, the request (as explained below) is irrelevant, harassing, embarrassing and not reasonably calculated to lead to the discovery of admissible evidence. Since deposition has not yet occurred, the Request and subsequent inspection can be utilized by her to bolster, fabricate and tailor her ' The Interrogatory Responses will be provided at the hearing if requested. EFTA00723220 R v. Epstein e No. 502008CA037319XMXMB AB Page 3 of 14 testimony such that it conforms to what, if anything, she would learn from the inspection and photographing. 4. Epstein objects to the Request on the following grounds: a. Violation of the Due Process Clause of the Fifth and Fourteenth Amendments in that this Court is being asked to authorize a general search and seizure by a private party in violation of Epstein's right to privacy and due process; b. Violation of the Fifth Amendment protection against self- incrimination; c. Not relevant, material or reasonably calculated to lead to the discovery of admissible evidence; further, has the capacity to compromise the accuracy of the memories of ■ and any other witness who is permitted to view the photo and is therefore in conflict with the parties interest in a trustworthy fact-finding process; d. Overbroad, unduly burdensome, violation of constitutional right of privacy; and harassing; e. May allow to fabricate and tailor her testimony before her deposition occurs; and f. It is an Improper Medical Examination pursuant to Fla. R. Civ. Pro. 1.360, and Defendant has not placed any medical condition at issue. EFTA00723221 n. Epstein Case No. 502008CA037319XXXXMB AB Page 4 of 14 II. The Request Violates Epstein's Fifth Amendment Rights Against Self - Incrimination 5. The Fifth Amendment privilege against self-incrimination "permits a person not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future proceedings." See Edwin v. Price, 778 F.2d 668, 669 (11th Cir. 1985) (citing Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). The privilege is accorded liberal construction in favor of the right and extends not only to answers that would support a criminal conviction, but extends also to those answers which would furnish a link in the chain of evidence needed to prosecute the claimant for a crime. See Hoffman v. United States, 341 U.S. 479, 486 (1951). Information is protected by the privilege not only if it would support a criminal conviction, but also in those instances where "the responses would merely 'provide a lead or clue' to evidence having a tendency to incriminate." See United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert denied, 447 U.S. 925 (1980). 6. Moreover, the act of production itself may implicitly communicate statements of fact and, for this reason, the Fifth Amendment privilege also encompasses the circumstances where the act of producing documents in response to a subpoena or production request has a compelled testimonial aspect. See United States v. Hubbell, 530 U.S. 27, 35-36 (2000). Thus, where the existence or location of the requested documents are unknown, or where production would "implicitly authenticate" the requested documents, the act of producing responsive documents is EFTA00723222  v, Epstein Case No. 502008CA037319XXXXMB AB Page 5 of 14 considered testimonial and is protected by the Fifth Amendment. See In re Grand Jury Subpoena, 1 F.3d 87, 93 (2nd Cir. 1993). 7. In the instant case, requests, for example, to inspect Epstein's genitalia. See Exhibit "A". Any compelled "production" by Epstein in this regard would directly violate his Fifth Amendment rights in that he is implicitly being asked to authenticate same. This is not the same as asking Epstein to open his home to film the limited scope-pathways which allegedly took as Epstein, in that instance, is not being asked to authenticate or show anything. In this instance, however, Epstein would be required to perform a positive act by showing his genitalia which, in turn, would require him to authenticate same. If you accept allegations in her Request as true, photographing Epstein's genitalia could potentially provide a 'lead or clue' to evidence having a tendency to incriminate. 8. In Jane Doe No. 2 v. Epstein, Case No. 08-CIV-80119 MARRA/JOHNSON, the Court sustained Epstein's Fifth Amendment objections to several interrogatories asking Epstein to identify information potentially related to the case(s) including, but not limited to, all employees who performed work inside his Palm Beach residence, all other employees who came to the residence (Interrogatory Nos. 1 — 2), those who gave or were asked to give him massages (Interrogatories Nos. 3 — 6), information regarding the identity of persons who provided transportation services (Interrogatory No. 9), a list of Epstein's employees' telephone numbers (Interrogatory No. 12), any persons or witnesses who have knowledge or are in possession of physical evidence pertaining to the events in question (Interrogatories Nos. 13, 14 and 17), and EFTA00723223 inv. Epstein Case No. 502008CA037319X)MMB AB Page 6 of 14 seeking information related to alleged sexual abuse or misconduct on a minor (Interrogatory No. 15). See August 4, 2009 Order on Plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents. See Infra for Attachments. 9. If the Fifth Amendment protects Epstein from disclosing the identity of any person who has knowledge or are in possession of physical evidence (i.e. photographs, videos, written statements, etc.) pertaining the events in question (Interrogatory Nos. 13, 14 and 17 supra), it follows that Epstein's production of his genitalia by photograph also violates his Fifth Amendment rights. 10. Epstein has asserted his Fifth Amendment right in this matter. To the extent that right has been asserted with regard to the proposed questioning regarding the alleged shape of his genitalia, the Plaintiff will argue for an adverse inference relative to same. If the II is afforded the adverse inference, that is where the Fifth Amendment halts further inquiry relative to her Request. Holding otherwise would require Epstein to produce himself, which could provide a clue or a link in the chain of evidence used to convict him and would therefore violate his Fifth Amendment rights. See infra. 11. As this court knows, Epstein's Fifth Amendment concerns are not unwarranted. In a federal companion case, Jane Doe No. 2 v. Epstein, Case No. 08- CIV-80119 MARRA/JOHNSON, in the United States District Court for the Southern District of Florida, United States Magistrate Judge Linnea R. Johnson found, "pin 2008, Epstein entered into a Non-Prosecution Agreement with the United States Attorney General's Office for the Federal Southern District of Florida and the State Attorney's EFTA00723224 Case No. 502008CA037319XXXXN1B AB Page 7 of 14 Office for Palm Beach County. Under the terms of the Non-Prosecution Agreement, any criminal prosecution against Epstein is deferred as long as he abides by the certain terms and conditions contained therein. If at any time the United State's Attorney's Office has reason to believe Epstein is in breach of the Agreement, it need only provide Epstein's counsel with notice of the breach and then move forward with Epstein's prosecution. Accordingly, the undersigned would agree with Epstein ... that the fact there exists a Non-Prosecution Agreement does not mean that Epstein is free from future criminal prosecution, and that in fact, `the threat of prosecution is real, substantial and present!" See August 4, 2009 Order on Plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents at 4 (attached as Exhibit "B") and September 9, 2009 Omnibus Order at 2 (attached as Exhibit "C"). 12. Based upon the foregoing, this court cannot logically hold that the Requested inspection is not testimonial or communicative in nature, especially in light of the real, substantial and present threat of future criminal prosecution. III. The Request Is Irrelevant, Harassing, Interposed As A Means To Humiliate And Embarrass Epstein And Is Not Reasonably Calculated To Lead To The Discovery Of Admissible Evidence 13. The Request and the law surrounding same should be taken seriously, and BBs attempt to argue same in a fashion to "pump" the media should be disregarded. 14. Rule 1.280(b), Florida Rules of Civil Procedure, provides in pertinent part, 1pjarties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of EFTA00723225 I/SEW S ease No. 502008CA037319XXXXMB AB Page 8 of 14 the party seeking discovery or the claim or defense of any other party...." (Emphasis added). 15. "Relevant evidence is evidence tending to prove or disprove a material fact." See Fla. Stat. §90.401. In the instant case, there are no allegations in complaint that would be proven or disproven by evidence obtained from the Request/inspection, and the inspection will not lead to the discovery of admissible evidence. This is not a criminal case where the alleged perpetrator is sought to be identified. Quite the contrary. If allegations are accepted as true, she knows exactly who Epstein is, what he looked like etc. . . . Moreover,. has failed to allege any allegations in her complaint or in her responses to interrogatories that she saw Epstein's penis or that he penetrated her with his penis. Further, as stated above, her deposition has yet to occur in this matter and, as a result, her claims in the Request have yet to be challenged. The allegations in the Amended Complaint are as follows: . .Mr. Epstein came into a bathroom and shut the door behind him, told both girls to remove their clothes and undressed himself. Mr. Epstein then placed a small washcloth over his genitals and asked both girls to rub to on his naked body. . . . Mr. Epstein then began to masturbate while was massaging him. ¶14, Amended Complaint. Exhibit "D". 16. Nowhere in the Amended Complaint or in her answers to interrogatories doesII allege that Epstein removed his towel or that she ever saw Epstein's penis. In that regard, there is not a material fact in controversy pursuant to which the Request could lead to the discovery of relevant and admissible evidence. 17. cite to Harrell v. Hense, 2009 Wt. 409875 (C.D.CaI.) could not better support Epstein's argument herein. Harrell involves a matter where the petitioner was EFTA00723226 R v. Epstein e No. 502008CAD37319XXXXMB AB Page 9 of 14 convicted of unlawfully possessing a controlled substance including, but not limited to, a black baggie containing crack cocaine allegedly tucked away in the foreskin of his uncircumcised penis. Id. at *2. In Harrell, photographs were placed into evidence by Defense Counsel to show that petitioner was allegedly circumcised in an effort to show the jury that it was impossible for petitioner to hide the crack cocaine in a penis that was circumcised. Id. Accordingly in Harrell, there was a material question placed in front of the jury by defense counsel, to wit whether the physiology of petitioner's penis allowed him to hide crack cocaine in his foreskin.2 During the prosecutor's case-in-chief, a motion was made to require petitioner to submit to a physical examination to photograph petitioners penis such that the prosecution could use its own photos to aid their case. Counsel for petitioner, as the court noted, did not object to the inspection and only asked to be present at the examination. In the instant matter, there are no allegations or quandaries alleged as to the shape of Epstein's genitalia. As stated above, to the extent such allegations were made and Epstein invoked his Fifth Amendment right thereto,. would argue for an adverse inference — which halts the inquiry. See supra. Harrell provides an outline for this court, even though the case is clearly distinguishable, that any such inspection could only be had if Epstein places his genitalia in question and only right before or during trial. 18. In Boyle v. Buck, 858 So.2d 391 (Fla. 4th DCA 2003), the court ordered a Defendant to produce his vehicle involved in an accident resulting in a death. Id. The Court found that the Fifth Amendment against self-incrimination was not violated No similar allegations exist in the Instant matter making Epstein's genitalia material. 2 EFTA00723227 IS v. Epstein Case No. 502008CA037319XXXXIMB AB Page 10 of 14 because the vehicle itself did not amount to the production of testimonial or communicative evidence; however, the court noted that the Fifth Amendment privilege against self-incrimination exists primarily to assure an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action. Id. at 392. Here, as stated supra, producing Epstein for the inspection could later be used as a link in the chain of evidence used to convict him of a crime and/or could aid in the development of other incriminating evidence that can be used at trial. Id. at 292-293. This request goes to the heart of testimonial and communicative evidence, especially in light of the NPA. See supra. 19. Based upon the foregoing, an inspection of Epstein's genitalia would violate his constitutional right to privacy. See Fla. Const., Art I. §23. The constitutional right of privacy in the Florida Constitution is broader than the protection provided in the United States Constitution. See Berkeley v. Eisen, 699 So. 2d 789, 790 (Fla. 4th DCA 1997), citing Rasmussen v. South Fla. Blood Serv., Inc., 500 So. 2d 533, 536 (Fla. 1987). Orders compelling discovery constitute state action that may impinge on the constitutional right of privacy. See Berkeley, 699 So. 2d at 790. The court must balance the competing interests, privacy versus the need for discovery, that would be served by granting or denying discovery. Id. at 791. 20. The fact wants to photograph Epstein's genitalia amplifies the invasion of privacy. Again, the Fifth Amendment is implicated and, as well, the Fourth Amendment could be implicated here for the reasons set forth in Epstein's Objections To Request For Entry Upon Land, Motion For Protective Order And Incorporated EFTA00723228  v. Epstein Case No. 502008CA037319XWMB AB Page 11 of 14 Memorandum Of Law previously filed with this court and incorporated herein by reference. Exhibit "E". The physical violation of his person is the chief evil against which the Fourth Amendment is directed and a principal protection against unnecessary intrusions. See Welsh v. Wisconsin, 466 U.S. 740 (1984). 21. For the foregoing reasons, the Court should deny'. Request and enter a protective order, pursuant to Fla. R. Civ. P. 1.280(c), prohibiting such discovery as it is harassing, humiliating, and not relevant or reasonably calculated to lead to the discovery of admissible evidence and it violates Epstein's constitutional right to privacy. IV. Alternatively, If An ection Occurs, It Should Be Sal To Further Court Ruling Based Upon Deposition Testimony, Only Afte Deposition Has Occurred And Just Prior To Trial And Only After The Appropriate Motion Can ully And Intelligently Briefed and Ruled Upon By This Court Based Upon BeF Deposition Testimony 22. If this court allows the inspection, it should: (a) be subject to further court ruling based upon deposition testimony; (b) occur after IM deposition has occurred and just prior to trial; (c) occur only after the appropriate motion can be fully and intelligently briefed and ruled upon by this court based upon deposition testimony; and (d) the photograph should be strictly limited by confidentiality agreement and should, among other things, not be disclosed to any person other than BBs counsel and returned to Epstein after the conclusion of this litigation. Likewise, any expert permitted to view the photographs should be required to sign an assurance providing that he or she agrees to abide by the terms of a confidentiality order, and disclosure will occur only after good cause has been shown to the court. EFTA00723229 I v. Epstein t ase No. 502008CA037319)000(MB AB Page 12 of 14 23. Due to the substantial due process and privacy concerns articulated herein, the Court should further order that a violation of the confidentiality order be punishable by contempt of court. In attorneys have not been shy about contacting the press. 24. If the Court permits an inspection, it should also take place shortly before trial, but only after has been deposed to avoid any attempt by to tailor her testimony to the information obtained from the inspection and only after a subsequent Motion has been filed detailing deposition testimony. An analogy can be made to cases involving impermissibly suggestive showups.3 See e.g. Neil v. Biggers, 409 U.S. 188 (1972). In Neil, the United States Supreme Court, addressing suggestive showups, noted that the primary evil to be avoided is a very substantial likelihood of irreparable misidentification." Id. at 198. (Internal quotations omitted). It went on to state that suggestive confrontations are disapproved because they increase the likelihood of misidentification, which would violate a defendant's due process rights. Id. 25. Just like a victim's propensity to misidentify a criminal suspect in a suggestive showup, there is a strong likelihood that will tailor her recollection and testimony to the photographs taken at the inspection. There would be no way to test whether her testimony was a result of independent recollection of the alleged events or from viewing the photographs. This would, of course, violate Epstein's due process rights. 3 A "showup" is a pretrial identification procedure in which a suspect is confronted with a witness to or the victim of a crime. Unlike a lineup, a showup is a one-on-one confrontation. See Black's Law Dictionary (8th ed. 2004). EFTA00723230 l v. Epstein e No. 502008CA037319XXXXMB AB Page 13 of 14 26. On the other hand,. will not be prejudiced by postponing the inspection until after her deposition and another hearing is had regarding this subject matter. WHEREFORE, Defendant, JEFFREY EPSTEIN, respectfully requests the Court deny the Request and enter the appropriate protective order or, in the alternative, enter a protective order limiting the inspection as follows: (a) be subject to further court ruling based upon deposition testimony; (b) occur afters deposition has occurred and just prior to trial; (c) occur after the appropriate motion can be fully and intelligently briefed and ruled upon by this court based upon. deposition testimony; and (d) the photograph should be strictly limited by confidentiality agreement and should, among other things, not be disclosed to any person other than BBs counsel and returned to Epstein after the conclusion of this litigation. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was sent by fax and U.S. Mail to the following addressees on this £ day of December, 2009: Theodore J. Leopold, Esq. Jack Goldberger, Esq. Spencer T. Kuvin, Esq. ss, P.A. Fax: Fax: Counsel for Plaintiff'''. Co-counsel for Defendant Jeffrey Epstein EFTA00723231  v. Epstein Case No. 502008CA037319XXXXMB AB Page 14 of 14 BURMAN, CRITTON, LUTTIER & COLEMAN, LLP (561) 515-31 ax By: R D. Critton, Jr. orida Bar #224162 Michael J. Pike Florida Bar #617296 (Counsel for Defendant Jeffrey Epstein) EFTA00723232  IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 502008CA037319XXXXMli All • Plaintiff, vs. JEFFREY EPSTEIN, Defendant. MOTION FOR INSPECTION AND TO COMPEL DISCOVERY (PHOTOGRAPHS) Plaintiff, M., by and through undersigned counsel, hereby files this Motion for Inspection and to Compel Discovery and requests this Court to order Defendant, JEFFREY EPSTEIN, to submit to have his genitalia photographed by an independent medical examiner; and as grounds therefore states as follows: 1. Relevant evidence is defined as any evidence tending to prove or disprove a material fact. Fla. Stat. § 90.401 (2009). If evidence is logically probative, it is relevant and admissible unless there is an independent reason for not allowing the jury to consider it. Lavallee v. State, 958 So.2d 509, (Fla. 4th DCA 2007) (citations omitted). 2. Count I of Plaintiffs Complaint charges Defendant with Sexual Battery. 3. Defendant has not admitted to any sexual contact with Plaintiff. t's DEFENDANT'S EXHIBIT 5 A , EFTA00723233 4. Unless Defendant admits Plaintiff observed his genitalia an inherent factual issue exists as to whether any sexual contact occurred. Whether Plaintiff can identify Defendant's genitalia at trial will become a crucial factual issue if Defendant argues the incident never occurred. 5. The shape of Defendant's genitalia is unique. In the Probable Cause Affidavit (Probable Cause Affidavit attached hereto as Exhibit "A'), Defendant's genitalia is described as "deformed," "oval shaped," and "egg-shaped." 6. Defendant's attorneys have refused to allow Defendant to answer questions regarding the shape of his penis. (Deposition of Jeffrey Epstein taken September 2, 2009, attached hereto as Exhibit "B"). 7. The proposed photographs of Defendant's genitalia are non-testimonial in nature which means the Defendant cannot assert his Fifth Amendment Right against self-incrimination. Boyle v. Buck, 858 So.2d 391, 393 (Fla. 416 DCA 2003) ("The Fifth Amendment privilege does not shield every kind of incriminating evidence. Rather, it protects only testimonial or communicative evidence, not real or physical evidence which is not testimonial or communicative in nature.") (citations omitted). 8. Defendant may aigue such photographs are embarrassing and harassing however Defendant should not now be able to clothe from inspection the same genitalia he exposed to then fifteen year old Plaintiff in order to avoid civil prosecution. 9. In Harrell v. Hense, 2009 WL 409875 (C.D.Cal. 2009), the court denied Defendant's Habeas Corpus petition and held that the court Ordeicli jilVicadexamination of Defendant's penis was proper. The court stated the examination did not violate Defendant's Fourth Amendment rights as the examination was necessary for the jury to evaluate the facts of the case. Id. at 10. "In sum, the examination was ordered for reasonable purpose in a reasonable • ..... • ,.... .. Nli..le . . Page 2 of 3 EFTA00723234  manner and thus was neither compulsory self-incrimination nor an unlawful search and seizure." Id. (citations omitted). WHEREFORE, Plaintiff respectfully requests this Court order Defendant, JEFFREY EPSTEIN, submit to have his genitalia photographed by an independent medical examiner. HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U. S. Mail, postage prepaid, this day ofe 1 2-CO9 to Jack A Goldberger, Esq., 250 Australian Avenue, Suite 1400, West Palm Beach, FL 334101; Bruce E. Reinhart, Esq., MO Robert D. Critton, Jr., Michael J. Pike, LEOPOLD-KUVIN, P.A. 1.1 M1 (561) 5 facsimile) •••••...1 By: ENCER KUVIN, Esq. Florida Bar No.: 0089737 ADAM J. LANGINO, Esq. Florida Bar No.: 0031368 Page 3 of 3 EFTA00723235 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 1 of 22 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, CASE NO.: 08-CV-80119-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 3, CASE NO.: 08-CV-80232-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 4, CASE NO.: 08-CV-80380-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 5, CASE NO.: 08-CV-80381-MARRA/JOHNSON Plaintiff, VS. 1 [ DEFENDANT'S g IT 1 EFTA00723236 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 2 of 22 JEFFREY EPSTEIN, Defendant. JANE DOE NO. 6, CASE NO.: 08-80994-CIV-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 7, CASE NO.: 08-80993-CIV-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. C.M.A., CASE NO.: 08-80811-CIV-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE, CASE NO.: 08- 80893-CIV-MARRA/JOHNSON Plaintiff, VS. JEFFREY EPSTEIN et al, 2 EFTA00723237 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 3 of 22 Defendants. DOE II, CASE NO.: 09- 80469-CIV-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN et al, Defendants. JANE DOE NO. 101, CASE NO.: 09- 80591-CIV-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. JANE DOE NO. 102 CASE NO.: 09- 80656-CIV-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ORDER THIS CAUSE is before the Court on Plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents (D.E. #57). For the following reasons said 3 EFTA00723238 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 4 of 22 Motion is granted in part and denied in part as follows. In this case, which has been consolidated for purposes of discovery, Plaintiffs are former under-age girls who allege they were sexually assaulted by Defendant, Jeffrey Epstein ("Epstein"), at his Palm Beach mansion home. The scheme is alleged to have taken place over the course of several years in or around 2004-2005, when the girls in question were approximately 16 years of age. As part of this scheme, Epstein, with the help of his assistant allegedly lured economically disadvantaged minor girls to his homes in Palm beach, New York and St. Thomas, with the promise of money in exchange for a massage. Epstein purportedly transformed the massage into a sexual assault. The three-count Complaint alleges sexual assault and battery (Count I), intentional infliction of emotional distress (Count II), and, coercion and enticement to sexual activity in violation of 18 U.S.C. §2422 (Count Ill). In 2008, Epstein entered into a Non-Prosecution Agreement with the United States Attorney General's Office for the Federal Southem District of Florida and the State Attorney's Office for Palm Beach County. Under the terms of the Non-Prosecution Agreement, any criminal prosecution against Epstein is deferred as long as he abides by the certain terms and conditions contained therein. If at any time the United States Attorney's Office has reason to believe Epstein is in breach of the Agreement, it need only provide Epstein's counsel with notice of the breach and then move forward with Epstein's prosecution. Accordingly, the undersigned would agree with Epstein's statement at page 4 of its Response, that the fact there exists a Non-Prosecution Agreement does not mean that Epstein is free from future criminal prosecution, and that in fact, "the threat of prosecution is real, substantial, and present." Id. 4 EFTA00723239 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 5 of 22 By this Motion, Plaintiff seeks to compel answers to certain interrogatories and requests for production that were propounded December 9, 2008. Defendant has responded by asserting several objections, the primary one of which is an assertion of his Fifth Amendment privilege. The Fifth Amendment serves as a guarantee against testimonial compulsion and provides, in relevant part, that InJo person...shall be compelled in any Criminal Case to be a witness against himself." Id. In practice, the Fifth Amendment's privilege against self- incrimination "permits a person not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings? Edwin v. Price, 778 F.2d 668, 669 (11th Cir. 1985)(citing Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). The privilege is accorded "liberal construction in favor of the right it was intended to secure," Hoffman v. United States, 341 U.S. 479, 486 (1951), and extends not only to answers that would in themselves support a criminal conviction, but extends also to those answers which would furnish a link in the chain of evidence needed to prosecute the claimant for a crime. Id.; Blau v. United States, 340 U.S. 159 (1950). Thus, information is protected by the privilege not only if it would support a criminal conviction, but also in those instances where "the responses would merely `provide a lead or clue' to evidence having a tendency to incriminate." United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S. 925 (1980). The Fifth Amendment's privilege against self-incrimination comes into play only in those instances where the witness has "reasonable cause to apprehend danger from a direct answer." Hoffman, 341 U.S. at 486 (citing Mason v. United States, 244 U.S. 362, 365 (1917)). "The claimant must be 'confronted by substantial and 'real,' and not merely trifling 5 EFTA00723240 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 6 of 22 or imaginary, hazards of incrimination." United States v. Apfelbaum, 445 U.S. 115, 128 (1980). When the Fifth Amendment privilege is raised as a bar to discovery, a blanket refusal to answer questions or to produce documents is improper. Anglada v. Sprague, 822 F.2d 1035, 1037 (11th Cir. 1987). Instead, the privilege must be asserted in response to a particular question, and in each instance the burden is on the claimant to justify invocation of the privilege. Id. Once a particularized showing has been made, "[i]t is for the court to decide whether a witness' silence is justified and to require him to answer if it clearly appears to the court that the witness asserting the privilege is mistaken as to its validity." In re Morganroth, 718 F.2d 161, 166-67 (6th Cir. 1983). In making this determination the judge is instructed to view the facts and evidence presented on a case- by-case basis, and "must be governed as much by his perception of the peculiarities of the case, as by the facts actually in evidence." Hoffman, 341 U.S. at 487. The law is well established that the Fifth Amendment privilege may not apply to specific documents "even though they contain incriminating assertions of fact or belief, because the creation of those documents was not 'compelled' within the meaning of the privilege." United States v. Hubbell, 530 U.S. 27, 35-36 (2000). However, in certain instances, "'the act of production' itself may implicitly communicate 'statements of fact.'" Id. For this reason the Fifth Amendment privilege also encompasses the circumstance where the act of producing documents in response to a subpoena or production request has a compelled testimonial aspect Id. Thus, in those instances where the existence and/or location of the requested documents are unknown, or where production would "implicitly authenticate" the requested documents, the act of producing responsive 6 EFTA00723241 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 7 of 22 documents is considered testimonial and is protected by the Fifth Amendment. In re Grand Jury Subpoena, 1 F.3d 87, 93 (2d Cir. 1993); see also Fisher v. United States, 425 U.S. 391, 410 (1976)(issue expressed as whether compliance with a document request or subpoena "tacitly conceded" the item's authenticity, existence or possession by the defendant). The Court begins with an analysis of the Fifth Amendment privilege as applied to each request. In the event the Court determines that a certain request does not infringe upon Epstein's Fifth Amendment privilege, Epstein's additional objections to that request shall be addressed. Where appropriate, the Court looks to Epstein's Response Memorandum for more particularized objections, rather than relying solely on Epstein's objections as initially stated, which in some cases were less specific in nature. The Court also notes Plaintiff's concession, stated at pages 3 and 5 of her Motion, that the act of producing items in response to Production Request Nos. 9, 12-13 and responding to Interrogatory No. 9, may implicate the Fifth Amendment. Finally, the Court approves Epstein's decision not to provide a detailed privileged log, in that it is reasonable under the circumstances to believe that in compelling production of same, the Court would in essence be compelling testimony to which Epstein's constitutional protections might apply. As such, the Court agrees with Epstein that it makes judicial sense to decide the constitutional issues first, before deciding the additional discovery request objections. INTERROGATORIES Epstein's assertion of the Fifth Amendment as It relates to Interrogatories 3, 4, 5, 6, 13, 14, 15, 16 and 17 is sustained and Plaintiff's Motion in this regard is denied. Interrogatories 3-6 ask Epstein to identify anyone who gave or were asked to give him 7 EFTA00723242 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 8 of 22 massages. Epstein argues, and this Court agrees, that any answer to these questions involve compelled statements that could reasonably furnish a link in the chain of evidence needed to prosecute Epstein in future criminal proceedings or even support a criminal conviction. Interrogatory No. 15 seeks information relating to alleged sexual abuse or misconduct on a minor. On its face, this interrogatory seeks incriminating evidence which Epstein is entitled to protect by asserting his Fifth Amendment privilege against self incrimination. Interrogatory No. 16 is a contention interrogatory seeking the facts upon which Epstein relies to support each of his pleading allegation denials and for each affirmative defense. As Epstein correctly observes, forcing him to answer this interrogatory unconstitutionally places him in the position of being compelled to testify as to his version of the facts, and, in asserting affirmative defenses, being compelled to admit to Plaintiffs version of the facts. Interrogatories 13, 14 and 17 ask Epstein to identify any persons or witnesses who have knowledge of the events in question, or who are in possession or control of any photos, videos, written statements, etc. pertaining to the events in question. Clearly these interrogatories, all of which relate to claims of sexual abuse and exploitation of a minor, implicate the Fifth Amendment, in that by requiring Epstein to list such persons or witnesses, Epstein is being forced to incriminate himself in the commission of crimes. Epstein's assertion of the Fifth Amendment as it relates to Interrogatories 1, 2, 9 and 12, is likewise sustained and Plaintiff's Motion in this regard denied. While these interrogatories ask for general, identification-type information, which on their face may not appear to infringe upon or otherwise implicate Epstein's rights under the Fifth Amendment, based on the particularized showing made by Epstein in his Response Memorandum, the 8 EFTA00723243 Case 9:08-cv-80119-KAM Document 242 Entered on FLSD Docket 08/04/2009 Page 9 of 22 facts alleged in the Complaints, and the undersigned's knowledge of the cases, it is dear they involve compelled statements that would furnish a link in the chain of evidence needed to convict him of a crime, allowing Epstein to assert his Fifth Amendment privilege. Interrogatory No. 1 asks Epstein to identify all employees who performed work or services inside his Palm Beach residence and Interrogatory No. 2 asks Epstein to identify all employees not identified in Interrogatory No. 1 who at any time came to Defendant's Palm Beach residence. Interrogatories 9 and 12 are similar in nature requesting information regarding the identity of persons providing transport services