EFTA00180863.pdf

20 1 he will do it, but that's where this battle 2 need to be fought. 3 As a matter of comity, your Honor, 4 this Court should defer to Judge Marra 5 because, A, he has alread y ruled on the 6 disclosure of the nonpro s agreement, but 7 even more importantly, the supremacy clause 8 requires you to defer to the federal laws 9 of criminal procedure tha t say these 10 matters should be protec ted and should not 11 be disclosed unless the district court says 12 so. 13 If the Court is going to go on and 14 wants to go to the issues that would be 15 contained if it were not dealing with a 16 grand jury proceeding, obviously there's a 17 test that the Court mus t then use under the 18 Rules of Judicial Admini stration and it 19 says matters can be sea led but they should 20 be sealed if there's a compelling 21 government interest or if the sealing is 22 important to the admini stration of justice. 23 There's a couple other criteria, but the 24 ones obviously that wou ld apply in this 25 case are the compellin g government SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180863  21 1 interest, and the importance to the 2 administration of justice. 3 Again, we are dealing with a secr et 4 grand jury matter. We cannot circumvent that secrecy by asking the Court to invoke 6 its unsealing power. 7 THE COURT: Thank you. 8 MR. GOLDBERGER: Thank you, your 9 Honor. 10 THE COURT: Let me go over to the 11 other parties and we'll get back to 12 Mr. Goldberger and his client. Post, who 13 wants to go first? 14 MS. SHULLMAN: Mr. Edwards. 15 THE COURT: Mr. Edwards. 16 MR. EDWARDS: Your Honor, inasmuch as 17 Mr. Epstein is relying on Judge Marr a's 18 order to support the argument that the 19 nonprosecution agreement needs to rema in 20 sealed, I'd like to address that if you are 21 inclined to be persuaded by that argument 22 at all. 23 The orders that have now been moved 24 into evidence are in case No. 8073 6, and 25 just to put that order in context in SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180864  22 1 actuality, the order says -- specific ally 2 puts it back on this Court and confers 3 authority on this Court over this 4 particular document, when in the seco nd 5 page of the February 12th, 2009 order, it's 6 misdated 2009 but it's a 2009 order, and 7 the last two sentences read: If and when 8 petitioners have a specific tangible need 9 to be relieved of the restrictions , they 10 should file an appropriate motion, which we 11 believe we have done in this case , if a 12 specific tangle need arises in the civil 13 cases, which are in circuit court in Palm 14 Beach County, then relief should be sought 15 there and notice to all parties, so to give 16 the Court context for that order, ther e was 17 a state court plea taken June 30th , 2008, 18 where Mr. Epstein pled guilty to the state 19 court cases as it related to two victims. 20 Now, parallel to that, there was an 21 investigation in federal court where the 22 United States attorney's office and the FBI 23 had more than 30 victims of sex abuse of 24 Mr. Epstein's and they were working with 25 these girls and their cases. Now, several SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180865  23 1 of those girls came to me and said, hey, 2 we're worried that there's a secr et deal 3 going on between Epstein and the U.S. 4 attorney's office, so I filed an emergency 5 petition against the U.S. attorney 's office 6 asking the federal court to interven e and 7 get in the middle of this and not let this 8 deal go forward without meaningfully 9 conferring with these girls because I was 10 alleging it violated the Crimes Vict im's 11 Rights Act; these girls have a righ t to be 12 heard. That emergency motion was filed 13 July 7th, 2008, and I have that for the 14 Court, and I'd like to enter that into 15 evidence as well. 16 THE COURT: We'll mark that as EW's 17 Exhibit No. 1. 18 MR. EDWARDS: And an emergency 19 hearing was held four days late r in front 20 of Judge Marra, who was randomly assigned 21 to this case at the time the plea was taken 22 and the prosecution agreement was sealed. 23 Judge Marra had nothing to do with the 24 agreement, with Epstein, he didn't know I 25 anything about it. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180866  24 1 So four days later now we're in front 2 of him and the United States attorney 's 3 office says for the first time, sorry, 4 girls, you are too late, the deal has 5 already been done as to all of your federal 6 cases and it resulted in the nonprose cution 7 agreement that is attached in the state 8 court case. Judge Marra turned to us and 9 said, what is your remedy. 10 At that point in time I said we don't 11 know because we don't know what protecti ons 12 are inside that agreement, so we want you 13 to unseal it, that's where the motion for 14 protective order came about where he gave 15 us the agreement so we can look at it and 16 determine what remedy, if any, was 17 available. Once we had that agreement 18 under the caveat that we were not able to 19 disseminate to third parties and revi ewed 20 it and saw there is very little prot ection 21 for the girls, we asked to unseal it 22 completely, so that we can talk to third 23 parties, to victim's rights groups and get 24 some insight as to what our possible remedy 25 would be. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180867  25 1 And so our reason for wanting him to 2 unseal it at that time was we want to be 3 able to talk to other people, and that's 4 where this order from February 12th , 2009, 5 came in, and he denied that motion to 6 unseal it for three reasons. 7 First and foremost, this 8 nonprosecution agreement was not sealed in 9 my Court, you are talking to the wrong 10 judge, you need to go back, so we'r e 11 getting the back and forth here and it's 12 not in my court, I can't mess with some 13 other judge's order. Obviously, there was 14 a hearing held and that document was sealed 15 for a reason, I'm not privy for thos e 16 reasons, so I'm not going to override 17 whatever that judge was thinking when they 18 sealed that document. 19 Second, your reason is you just want 20 to talk to other people about them , and if 21 I'm going to override some other judge's 22 order, I need to have a more comp elling 23 reason than you just want to talk to people 24 about. 25 Third, if and when a specific need SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180868  26 1 arises in any of the civil cases, which by 2 the time this order was coming abou t they 3 were stacking up in state and fede ral court 4 against Mr. Epstein, petition that court, 5 petition the appropriate court, and he 6 implies that appropriate court is this 7 court where it was initially seal ed, which 8 we've done in this case. 9 This court has none of the problems 10 that Judge Marra had in that it was sealed 11 in this courtroom. We have noticed 12 Mr. Epstein to be heard at this hear ing, 13 which is one of the requirements that 14 Judge Marra placed on us, and a spec ific 15 need has arisen. It has been sealed for 16 over a year now, correct, Mr. Gold berger is 17 correct, but the specific need is arising 18 because we are in the middle of discovery. 19 And this document is, as Mr. Gold berger 20 said, a great inducement to Mr. Epstein 21 pleaing guilty to sex crimes in stat e 22 court, and to ultimately being labe led a 23 sex offender, and the only docu ment that 24 pertains to my clients, my clie nt as a 25 victim of Mr. Epstein's sex crime, so at SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180869  27 1 the very least, we should be allo wed to ask 2 people in deposition and do discovery about 3 how this document came about. There is a 4 need here. I 5 THE COURT: I don't quite get -- I 6 don't think it's relevant to what my task 7 is here, but I don't get how it's relevant 8 in the civil cases what the fede ral 9 government did or didn't do with regard to 10 prosecuting Mr. Epstein. I don't get that, 11 but I don't know that I need to. 12 MR. EDWARDS: The standard for 13 discovery is just reasonably calc ulated to 14 lead to discovery of admissible evid ence 15 and without going in depth we do have 16 intention -- 17 MR. GERBER: Your Honor, can I 18 MR. EDWARDS: And with respect to the 19 grand jury argument, you've seen the 20 document, it's only page five and six that 21 it's even referred to. 22 THE COURT: All right. Let me turn 23 it over to -- does the Post want to speak? 24 MS. SHULLMAN: I do, but I think he 25 wants to go first so whenever. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180870  28 1 THE COURT: I haven't considered your 2 motion to intervene yet. 3 MR. KUVIN: I don't believe it was an 4 objection. When it was filed, there was no 5 objection by Mr. Goldberger or Mr. Critton. 6 THE COURT: Are you going to advocate 7 by motion to intervene or are you going to 8 be jumping into the merits of the sealing? 9 MR. KUVIN: I'll jump right into the 10 merits, I'm not going to duplicate anything 11 that was just raised or anything that the 12 press is going to raise, I have an 13 individual interest. I 14 THE COURT: All right. Go ahead 15 Mr. Kuvin. I 16 MR. KUVIN: Very briefly, your Honor. 17 I represent BE who has filed only a state 18 court action, she is not under the federal 19 jurisdiction of Judge Marra, she does not 20 subject herself to the federal juri sdiction 21 of Judge Marra, she was never prov ided an 22 opportunity to brief any issues befo re 23 Judge Marra with respect to that order that 24 was entered by Judge Marra or either order. 25 In addition, what's also very impo rtant is SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180871  29 1 she has never seen this document, so she 2 does not know what is in the cont ents of 3 the order, so the issue is rais ed by 4 Mr. Goldberger about the girls are able to 1 5 see the document and evaluate how they 6 I might need to evaluate this document does 1 7 not apply to my client because she has 8 never seen it and, frankly, with i out 9 subjecting herself voluntarily to the -10 jurisdiction of Judge Marra, whic h she 11 chooses not to do, then she cannot get this 12 document, otherwise she would have to go to 13 federal court, submit herself to the 14 jurisdiction of the federal court to then 15 see a state court document, which does not I 16 make any sense because if it is a state 17 court document in state court, as 18 previously stated under Judge Marr a's 19 order, it is within your purview and your 20 jurisdiction to rule on a state court 21 document. 22 Finally, with respect to why the iI 23 document may be relevant, the cont ents of 24 that document speak to the issu es of 25 whether or not Mr. Epstein can ) or cannot SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180872  30 1 assert his fifth amendment right against 2 self incrimination, and we believe on a 3 good faith believe that on the cont ents of 4 that document speak to the issues of 1 5 6 whether or not he can or cannot deny the claims that have been brought against him 7 both in state and federal court. In other 8 words, whether or not he must, in fact, 9 admit that he molested these 14 year old 10 girls, so, therefore, the content of that 11 document is paramount as to the issu es in 12 the civil proceedings that are curr ently 13 pending in state court which is why we 14 would like that document. 15 THE COURT: Okay. Thank you. Thank 16 you so very much. Ms. Shullman from the 17 Post. 18 MS. SHULLMAN: Thank you, your Honor. 19 I feel a little bit like I have step ped 20 into the twilight zone here, so I'd like to 21 address a couple of the things we'v e 22 addressed and get us to what we are really 23 here to do today. 24 THE COURT: I don't know if you are 25 referring specifically to the cour troom or SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180873  31 1 the convoluted situation that brings us to 2 the courtroom. 3 MS. SHULLMAN: Just this whole 4 federal state situation. There is no hill 5 for the public and the press to marc h up in 6 Judge Marra's court as Mr. Edwards pointed 7 out, Judge Marra has specifically held the 8 agreement was not filed in this case under 9 seal or otherwise, so were I to march into 10 Judge Marra's courtroom and do my whol e 11 public access spiel, he would say take it 12 to you, your Honor, because it's not a 13 record in my court. It is a record here, 14 and in the state court as we talked abou t 15 the last time, we were here, there's a 16 presumption of openness. The burden is on 17 Mr. Epstein to overcome that presumpt ion. 18 While he filed a very brief memorandum 19 after our last hearing, which identifi ed 20 for interest, he has by no means met the 21 test of either establishing those inte rest 22 or establishing the remainder of that test 23 which would be that closures no broa der 24 than necessary ineffective no other 25 reasonable alternatives, so if I coul d, I'd SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180874  32 1 like to sort of focus us back to the 2 inquiry we're here to make today in this 3 court, and that is whether your Hono r is 4 going to provide public access to two 5 records that are, I think, indisput ably in 6 your Honor's court file in this cour t's 7 file. 8 It's a plea agreement and an 9 addendum; those are historically and 10 typically open records. 11 Mr. Goldberger mentioned that the 12 plea agreement was sort of incident ally 13 filed in this court file, and that it was 14 sort of an afterthought that happened . He 15 never came into court intending that it 16 even be part of the court file, but 17 Judge Pucillo specifically said, this is a 18 significant inducement to acceptin g the 19 plea in my court. This agreement that you 20 have with federal prosecutors is 21 significantly the reason why you' re 22 entering this plea before me. And she took 23 those records into the court file 24 presumably because they are sign ificant to 25 this litigation. Even if there was an SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180875  33 1 incidental filing, which cannot possibly be 2 the case here, there is no mech anism in 3 Florida law to call a Mulligan and to pull 4 it out of the court file. As you know, the 5 Floridians have a constitutional right of 6 access, there's no mechanism in that law to 7 just say, oopsy, let's take it out of the 8 file, so they have to meet their burden and 9 they have to show under Rule 2.42 0 that one 10 of those interests is satisfied. They have 11 identified four here. I have not heard 12 them discuss them at any great length. But 13 I will go through them quickly. 14 The imminent threat to the fair, 15 impartial orderly administration of 16 justice, or to protect a compelli ng 17 government interest. As your Honor is 18 aware, the federal government is not here 19 today. I have spoken with the state 20 attorney's office who has indicate d that 21 their only interest is in protecti ng to the 22 extent necessary because I've not seen 23 these documents the identity of the victims 24 of these crimes. 25 The Post in its motion to inte rvene SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180876  34 1 has already set forth that we have no 2 objection to redacting the victim's name s 3 if, in fact, that is required because we 4 haven't seen the agreement. To avoid 5 substantial injury to innocent thir d 6 parties, again, absolutely no showing on 7 that test. I have no burden at this point, 8 but I will simply state that the law in 9 Florida is clear that Mr. Epstein does n't 10 have standing to assert that interest . 11 And, finally, something else I hear d 12 nothing about to avoid substantial inju ry 13 to a party which, I guess, presumably would 14 be Mr. Epstein by disclosure of matters 15 protected by a privacy right not gene rally 16 inherent in this specific type of 17 proceedings. Again, I have not heard any 18 attempt to meet the burden on that issue, 19 however, Florida law is equally clea r that 20 participants in crimes lose thei r privacy 21 interest in the matters and facts and 22 circumstances of the commission of those 23 crimes, so Mr. Epstein surely cann ot 24 establish that there is a separate privacy 25 interest not inherent in a criminal SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180877  35 1 prosecution regarding the molestat ion of 2 young girls. 3 The circumstances under which clos ure 4 is allowed in Florida are exceedin gly 5 narrow. We first -- and before we do 6 anything else -- have to find that one of 7 those interests is met here, that it exists 8 and that the movant has met its burden in 9 demonstrating that it's signific ant enough 10 to require the court to consider closure. 11 That's not the end of inquiry. And, of 12 course, I have not yet heard anyt hing else 13 about that second half of the test which 14 talks about the idea that closure is no 15 broader than necessary to protect that 16 interest and that it would be effe ctive and 17 that there are no other alternatives . 18 In speaking of the federal liti gation 19 there are instances when both Mr. Epstein's 20 lawyers and the federal prosecut ors have 21 placed portions of the agreement into the 22 public court file. There are -- thus 23 attempts to seal those records in the 24 federal litigation have been unsuccessful, 25 so part of this agreement the cat is SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180878  36 1 already out of the bag. But there is also 2 an enormous public intere st in what's going 3 on here, apart from the ide a that this man 4 is accused of having many, many victims who 5 were all young children whi ch, of course, 6 in itself creates a lot of public concern, 7 the chief of police at the time sent a 8 letter to the state prosec utors and said, 9 what are you guys doing, how are you 10 handling this, this is highly unusual; I 11 don't like what I'm seeing here. And even 12 went so far as to say, sta te attorney's 13 office, should you all step away from this 14 case. 15 So we have public interest from the 16 perspective of the police chief questioning 17 the state attorney's office about whether 18 it's doing its job. We have public 19 interest that's spurned by the idea that 20 some of the victims in the federal 21 prosecution -- in the fed eral court claimed 22 they weren't aware of it, we just heard 23 Mr. Edwards talk about the fact that his 24 clients weren't aware of the agreement 25 unless it all went down, so we have a SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REP ORTER EFTA00180879  37 1 significant public interest about how 2 everybody in this litigation is doin g their 3 job. There is nothing more fundamen tally 4 important than the ability of the public 5 and the press to observe how its 6 government, all branches of its government, 7 do its job. r 8 There are multiple, as Mr. Edwards 9 also mentioned, multiple civil laws uits 10 that have spurned as a result of 11 Mr. Epstein's conduct, and, again, the 12 public has an interest in what's going on 13 in civil litigation matters. 14 In short, this matter involves a 15 major public interest from a lot of 16 different levels. There is no basis for 17 closure that has been asserted here . It's 18 a heavy burden to meet. We start with the 19 idea that openness is the right thin g to do 20 but there is essentially no purp ose served 21 at this point by keeping these agre ements 22 sealed in this case. 23 Unless your Honor has any ques tions, 24 I think that's it. 25 THE COURT: Okay. Thank you so very SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180880