EFTA00207332.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x IN RE APPLICATION TO QUASH SUBPOENAS TO DAILY NEWS, L.P., No. 10 M8-85 (LLM) AND GEORGE RUSH x REPLY MEMORANDUM OF LAW OF DAILY NEWS, L.P., AND DAILY NEWS JOURNALIST GEORGE RUSH IN SUPPORT OF THEIR MOTION TO QUASH SUBPOENAS SERVED ON THEM IN A FLORIDA LITIGATION OR IN THE ALTERNATIVE FOR A PROTECTIVE ORDER Anne B. Carroll, Esq. The Daily News L.P. 450 West 33rd Street N 10001-2631 Laura R. Handman, Esq. Davis Wright Tremaine LLP 1633 Broadway rlia 10019 i EFTA00207332  TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT. 1 ARGUMENT 2 POINT I: WHETHER ANALYZED UNDER THE REPORTER'S PRIVILEGE OR THE FEDERAL R1 RELEVANCE, MATERIALITY OR ABSENCE OF ALTERNATIVE SOURCES 2 A. The Testimony and Tape Recording Would Be, At Best. Cumulative 6 B. The Alleged Statements in the Interview Are Not Even Relevant to a Significant Issue in Doe's Case. Much Less Critical or Necessary 8 POINT II: JANE DOE HAS FAILED TO DEMONSTRATE THAT THE QUALIFIED REPORTER'S PRIVILEGE WAS WAIVED 14 POINT III: THERE IS NO NEED FOR AN EVIDENTIARY HEARING WHERE THERE ARE NO MATERIAL FACTS IN DISPUTE 17 CONCLUSION 18 ii EFTA00207333  TABLE OF AUTHORITIES CASES Altemosc Constr. Co. v. Building & Constr. Trades Council 443 F. Supp. 489 (E.D. Pa. 1977) 19 Apicella v. McNeil Labs. Inc. 66 F.R.D. 78 (E.D.N.Y. 1975) 4 Mel v. Murphy, 70 F.R.D. 651 (D.R.I. 1976) 5 Baxter v. Palmigiano 425 U.S. 308 (1976) 7 Bellefonte Re Ins. Co. v. Argonaut Ins. Co. 757 F.2d 523 (2d Cir. 1985) 12 Best Canvas Products & Supplies. Inc. v. Ploof Truck Lines. Inc., 713 F.2d 618 (II th Cir. 1983) 12 Brink's Inc. v. City of New York 717 F.24 700 (2d Cir. 1983) 7 Drown & Williamson Tobacco Coro. v. Wigand, No. 101678/96, 1996 WL 350827 (N.Y. Sup. Ct. Feb. 28, 1996) 18 Bruno v. Stillman. Inc. v. Globe Newspaper Co. 633 F.2d 583 (1st Cir. 1980) 4, 5 Cablevision Systems Corp. v. DePalma, No. CV-87-3528 (JLC), 1989 WL 8165 (E.D.N.Y. Jan. 17. 1989) 7 Chick-Fil-A. Inc. v. CFT Dev.. LLC 652 F. Supp. 2d 1252 (M.D. Fla. 2009) 12 Cooper Industries. Inc. v. Leatherman Tool Group. Inc., 532 U.S. 424 (2001) 12 Diaz v. Eighth Judicial Dist. Court ex rel. County of Clark. 993 P.2d 50 (Nev. 2000) 18. 19 E & J Gallo Winery v. Encana Energy Servs.. Inc.. 33 Media L. Rep. 1413 (S.D.N.Y. 2004) 2 iii EFTA00207334 Eagle Hosp. Physicians. LLC v. SRG Consulting, Inc., 561 F.3d 1298 (11th Cir. 2009) 7 Gonzales v. National Broad. Co., 194 F.3d 29 (2d Cir. 1999) 2, 3 Hill v. Federal Trade Comm'n, 124 F.2d 104 (5th Cir. 19431) 13 In re Aoplication to Ouash Subpoena to Nat'l Broad. Co. 79 F.3d 346 (2d Cir. 1996) 3.9. 14 In re Natural Gas Commodities Litig.. 235 F.R.D. 241 (S.D.N.Y. 2006) 2, 8 In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982) (per curiam) 18 Lee v. Department of Justice 413 F.3d 53 (D.C. Cir. 2005) 2 L.W. ex rel. Whitson v. Knox County Bd. of Educ. 36 Media L. Rep. 1721 (E.D. Tenn. 2008) 5 Medina v. United Christian Evangelistic Ass'n No. 08-22111-CIV, 2009 WL 5066675 (S.D. Fla. Dec. 15. 2009) 6 New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) 2 Nicholas v. Poughkeepsie Say. Bank/FSB, No. 90 Civ. 1607 (RWS), 1991 WL 113279 (S.D.N.Y. June 14, 1991) 11 Night Hawk Ltd. v. Briarpatch Ltd.. L.P., No. 03 Civ. 1382 RWS, 2003 WL 23018833 (S.D.N.Y. Dec. 23, 2003) 10, 11 Oppenheimer Fund. Inc. v. Sanders 437 U.S. 340 (1978) 10 Patterson v. Burge. No. 03 C 4433, 2005 WL 43240 (N.D. III. Jan 6, 2005) 4.5 Persky v. Yeshiva Univ. No. 01 Civ. 4278 (LMM). 2002 WL 31769704 (S.D.N.Y. Dec. 10. 2002) 2,8. 14 Pugh v. Avis Rent A Car System. Inc.. No. M8-85. 1997 WL 669876 (S.D.N.Y. Oct. 28, 1997) 15 iv EFTA00207335 Salvatorie Studios. Int'l v. Mako's. Inc., No. 01 Civ. 4430BSIDF. 2001 WL 913945 (S.D.N.Y. Aug. 14, 1991) 11 Schiller v. City of New York 245 F.R.D. 112 (S.D.N.Y. 2007) 2 Solarex Corp. v. Arco Solar. Inc., 121 F.R.D. 163 (E.D.N.Y. 1988) 4 Ulrich v. Coast Dental Servs.. Inc., 739 So. 2d 142 (Fla. Dist. Ct. App. 1999) 15, 18 United States v. Burke, 700 F.2d 70 (2d Cir. 1983) 3, 13 United States v. Monteleone 257 F.3d 210 (2d Cir. 2001) 13 United States v. Treacv 603 F. Supp. 2d 670 (S.D.N.Y. 2009) 19 STATUTES N.Y. Civil Rights Law § 79-h 3 OTHER 9 James Wm. Moore et al.. Moore's Federal Practice (3d ed. 2010) II EFTA00207336  Daily News, L.P. ("Daily News"), and Daily News journalist George Rush respectfully submit this reply memorandum of law and accompanying Reply Declaration of Anne B. Carroll and Supplementary Affidavit of George Rush in support of their motion for an order pursuant to Fed. R. Civ. Proc. 45(c)(3XAXiii) quashing subpoenas or in the alternative for a Protective Order pursuant to Fed. R. Civ. Proc. 26(c)( I). PRELIMINARY STATEMENT Plaintiff Jane Doe has failed to carry her burden of showing that anything on the Epstein interview tape sought through the subpoenas challenged here may be compelled from movants under either the reporter's privilege recognized in this Circuit or the governing federal rules, F.R.C.P. 26 and 45. Her assertion that, absent the tape, she has no evidence to support her claims collides head-on with her positions, taken in the underlying litigation, that, for example, she has "ample evidence" that "can easily prove her case," that F.R.E. 415 permits her to introduce evidence of Epstein's alleged assaults on more than 30 other victims, and that his invocations of the Fifth Amendment entitle her to adverse inferences at trial "on all the factual issues" concerning liability. Her assertion that the recording is "the only direct evidence in existence or available ... to prove what Epstein thinks about what he did to her" cannot be squared with the fact that she does not even allege to this Court that Epstein said so much as a single word about her or her specific case — nor could she so allege, for he did not. Her argument that statements purportedly made by Epstein on the tape about another plaintiff in another litigation are somehow material to her case affords no support for a subpoena in this case. Yet these are exactly the kinds of claims on which she bases this effort to obtain disclosure of Rush's journalistic work product. The Court need not even reach the question of whether the reporter's privilege has been waived since plaintiff cannot meet the standards under F.R.C.P. 26 and 45: the burden on the non- party journalist to produce his newsgathering materials is not outweighed by Doe's need for this evidence, evidence which is at best cumulative and tangential. (Point I.) In any event, plaintiff has failed to show that the reporter's privilege has been waived as to the recording at issue since Doe does not allege — and cannot allege — that any part of the interview was published in the Daily News. - 1- EFTA00207337 (Point IL) Since there are no material facts in dispute, there is no need for an evidentiary hearing that would only further intrude into Mr. Rush's journalistic endeavors. (Point III.) The subpoenas should therefore be quashed in their entirety or a Protective Order issued to prevent their enforcement. ARGUMENT POINT I: WHETHER ANALYZED UNDER THE REPORTER'S PRIVILEGE OR THE FEDERAL RULES, DOE HAS NOT SHOWN THE REQUIRED RELE- VANCE, MATERIALITY OR ABSENCE OF ALTERNATIVE SOURCES Movants have already articulated the stringent standard that Doe must meet in order to ob- tain the disclosure sought under the most protective level of the qualified reporter's privilege accor- ded to confidential materials. Main Br. at 8-13. That standard applies whether the source is confidential or, as here, the information was obtained on a confidential basis from an identified I Contrary to Doe's claims, this Circuit has asa repudiated the 1st Amendment roots of the privilege. Sge, a Gonzales v. National Broad. Co 194 F.3d 29, 36 n.6 (2d Cir. 1999) (does not decide if privilege is "constitutionally required, or rooted in federal common law"); Persky v. Yeshiva Univ. No. 01 Civ. 4278 (LMM), 2002 WL 31769704, at *2 (S.D.N.Y. Dec. 10, 2002) (McKenna. J.) ("This circuit has long recognized the existence of a qualified privilege for journalistic information. This privilege is based. at least in part. on the importance of the First Amendment protections of freedom of speech and the press.") (internal quotation marks and citation omitted); Schiller v. City of New York. 245 F.R.D. 112. 118 (S.D.N.Y. 2007) ("There is some dispute whether [the reporter's] privilege is a creature of federal common law or is required by the First Amendment. .. . In either event, it arises from a concern for the potential harm to the paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.") (internal quotation marks and citation omitted). In any event, New York Times v. Gonzales 459 F.3d 160, 173-74 (2d Cir. 2006), and other grand jury subpoena cases on which Doe relies (Opp. Br. at 14-15) are not controlling with respect to non-party subpoenas in private civil disputes. Lee v. Department of Justice. 413 F.3d 53, 58 (D.C. Cir. 2005) (limiting "the applicability of the Branzburg precedent to the circumstances considered by the court in Branzburg-that is. the context of a criminal proceeding, or even more specifically, a grand jury subpoena"). Also contrary to plaintiff's contention. Opp. Br. at 15-16, courts in this Circuit continue to apply the highest level of the qualified privilege's protection to confidential newsgathering materials, like the recording here. as well as to the identity of confidential sources. ags. g g,. Jn re Natural Gas Commodities Litigation. 235 F.R.D. 241, 242, 246 (S.D.N.Y. 2006) (applying Petroleum Products standard to confidential materials): E Gallo Winery v. Encana Energy Servs.. Inc.. 33 Media L. Rep. 1413. 1414 (S.D.N.Y. 2005) (Preska, J.) (applying petroleum Products standard to both confidential sources and confidential materials) (copy annexed as Ex. A to Carroll Reply Decl.); see Gonzales v. National Broad. Co.. 194 F.3d at 32. 33 (reaffirming that 'Raker and Petroleum Products established the existence of a journalists' privilege for confidential materials"). EFTA00207338 source. 2 Rush's sworn statement that the interview was off the record stands uncontradicted. 3 Even if the Court were to find that confidentiality may have been waived as to certain portions of the interview — which we believe it was not, see Point II, infra, and Main Br. at 13-15 — the lower level of showing required to defeat the protection for non-confidential material articulated in Gonzales v. NBC has also not been made. In fact, if defendant prevails on his pending motion for summary judgment on the federal claims, the state law claims would be the only claims remaining and the New York Shield Law would then apply. Ste In re Application to Ouash Subpoena to National Broadcasting Co., 79 F.3d 346. 351. 352 (2d Cir. 1996) ("Graco") (applying New York Shield Law to state claims pending in Massachusetts federal court, noting the relevant standards of that law and the federal privilege were "identical," and freely cited both state and federal authorities throughout its opinion). Sgs Main Br. at 10. The New York Shield Law provides absolute protection of confidential sources and newsgathering materials and qualified protection for non-confidential newsgathering, requiring a showing that the information is "highly material and relevant," "critical or necessary to the maintenance of a party's claim" and "not obtainable from any alternative source." N.Y. Civil Rights Law § 79-h(b), (c).° But the Court need not even consider the scope of the reporter's privilege or if it has been waived. Without relying on an explicit First Amendment, common law or statutory privilege, under Rules 26 and 45, federal courts have nonetheless factored in the burden on First Amendment rights when analyzing private litigants' attempts to unearth the unpublished confidential and 2 If the Court should entertain any doubt about whether the conversation was indeed, by mutual agreement. off the record, the matter can be easily resolved by an in camera review of the recording. Under Gonzales v. NBC "Where a civil litigant seeks nonconfidential materials from a nonparty press entity, the litigant is entitled to the requested discovery notwithstanding a valid assertion of the journalists' privilege if he can show that the materials at issue are of likely relevance to a significant issue in the case. and are not reasonably obtainable from other available sources." 194 F. 3d at 36 (requiring production of outtakes of highway stops in case alleging racial profiling). While plaintiff is correct that it is the burden of the party asserting the privilege to show it applies, it is the burden of the party seeking the information to show she has overcome the privilege. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983). -3- EFTA00207339 nonconfidential work product and sources of non-party journalists and publishers. In Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596-98 (1st Cir. 1980), for example, a libel plaintiff sought the identities of confidential sources from the defendant newspaper. After reviewing Supreme Court precedents. the court concluded that "Itihe important point for purposes of the present appeal is that courts faced with enforcing requests for the discovery of materials used in the preparation of journalistic reports should be aware of the possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights. In deter- mining what, if any, limits should accordingly be placed upon the granting of such requests, courts must balance the potential harm to the free flow of information that might result against the asser- ted need for the requested information." Id. at 595-96 (footnotes omitted). The court remanded with instructions to examine the provisions of Rule 26, including the factors set out in subsection (c), with "a heightened sensitivity to any First Amendment implication that might result from the compelled disclosure of sources," and to "assess' I . . . the importance to the defendant's continued newsgathering effectiveness of preserving the source's confidentiality." Id. at 596-98.5 Even in Circuits that, unlike the Second Circuit, have not recognized a federal reporter's privilege, the standards applicable under Rules 26 and 45 have resulted in rejection of private litigants' efforts to obtain reporters' non-confidential newsgathering materials. For example. in Patterson v. Burge No. 03 C 4433, 2005 WL 43240 (N.D. III. Jan. 6, 2005), the court analyzed under Rule 45(c) subpoenas issued by defendants in a civil rights suit for media outlets' nonconfidential outtakes and audiotapes of interviews with plaintiff. Finding that the materials were relevant to the underlying litigation in the "broadest and weakest sense," the court nonetheless 5 &g g, Apicella v.McNeil Labs.. Inc. 66 F.R.D. 78, 82, 85 (E.D.N.Y. 1975) (Weinstein, J.) ("In exercising this authority," under Federal Rules 26 and 37, "the court must consider the possible necessity for the information and the costs of providing it": after weighing the interests of the plaintiff against the adverse effects on the publisher's First Amendment rights if the information were revealed — and observing that the parties had not shown that they were unable to obtain the information from another source — the court struck the balance under Rule 26 in favor of quashing the subpoena); Solarex Corp. v. Arco Solar Inc. 121 F.R.D. 163, 175. 179 (E.D.N.Y. 1988) (Rule 26 balancing of interests in view of defendant's attenuated showing of relevance and need and the publication's First Amendment interest in preventing intrusion into its editorial and news gathering activities, as well as its status as a non-party. weighed in favor of quashing subpoena). afro. 870 F.2d 642 (Fed. Cir. 1989). -4- EFTA00207340 held that plaintiffs had not established that the information sought was not already in their possession or unavailable from other sources. a at *2. The court said, the subpoena posed a significant burden on the third parties: "[I]f there is no standard higher than mere relevance which civil lawyers must satisfy to help themselves to reporters' records, news organizations will be very busy responding to civil subpoenas. Similarly, the news organizations' efforts to maintain their independence and gain the trust of sources is an interest that will be severely impaired if mere relevance, meaning as it does here a mere relationship to the subject matter of a civil suit, makes their non-public records available on request." Id. at *3. In view of the weakness of defendants' "showing of materiality" and the absence of a compelling public interest in the disclosure, as well as the "important private and public interests compelled production in this case would involve," the balancing of interests required by Rule 45(c) weighed in favor of quashing the subpoenas. Id. at *5.6 These cases make plain that considerations such as materiality, need, and the availability of alternative sources, on the one hand, and non-party status, very real burdens, and harm to impor- tant public (as well as private) interests, involving the ability of the press to do its job of informing the public — whether or not that is labeled a "First Amendment" value — on the other hand, can be sifted and weighed within the broad discretion of the Court in ways independent of, or in addition to, the currently shifting and sometimes uncertain parameters of privilege law in this area. 6 See, a. L.W. ex rel. Whitson v. Knox County Bd. of Educ., 36 Media L. Rep. 1721, 1723 (E.D. Tenn. 2008) (copy annexed as Ex. B to Carroll Reply Decl.) (granting non-party reporter's motion to quash even though reporter's privilege was not recognized by the 6th Circuit, reasoning that, under Fed. R. Civ. P. 26(bX2XO, the discovery sought was unreasonably cumulative or duplicative, and obtainable from other sources more convenient, less burdensome, or less expensive: plaintiffs failed to show that reporter possessed any unique evidence that could not be obtained elsewhere, and burden and expense of proposed discovery outweighed its likely benefit); Apel v. Murohv 70 F.R.D. 651.653 (D.R.I. 1976) (avoiding the constitutional question of whether a reporter's privilege exists under federal law and applying Rules 45(c) and Rule 26(b): finding that party's weak claim of relevance did not outweigh burdensomeness and oppression that would be imposed on journalists if they were compelled to disclose nonconfidential work product; subpoenas quashed). 7 . ea, Supplementary Affidavit of George Rush ("Supp. Rush Alit"). annexed as Ex. C to Carroll Reply Decl.,1 5. -5- EFTA00207341 A. The Testimony and Tape Recording Would Be. At Bejt. Cumulative Doe sets the table for her case against movants by asserting that her counsel have diligently tried — and failed — to find sa evidence or means to support her claims. Opp. Br. at 4-5. The claim is disingenuous at best. At the outset, in the response to Epstein's motion for summary judgment dismissing Doe's federal sex abuse claims which she filed on April 13, 2010 ("Si Opp.").8 she repeatedly argues that in fact she has more than enough evidence against him to survive the motion. See. egs, SJ Opp. at 12 ("far from supporting summary judgment for the defendant, the evidence overwhelmingly inclines in Jane Doe's favor") (see other examples Carroll Reply Dec1.16). Further bolstering Doe's claims in the underlying case is the fact that evidence of sexual abuse of the 30 other underage Jane Does whom plaintiff says investigators identified as having been Epstein's victims, Opp. Br. at 3, would be admissible against him pursuant to F.R.E. 415• ss Medina v. United Christian Evangelistic Ass'u, No. 08-22111-CIV. 2009 WL 5066675, at *1-2 (S.D. Fla. Dec. 15. 2009) (Rule 415 "supercedes the general rule . . . which excludes evidence of prior bad acts when admitted to prove that a party acts in conformity on a particular occasion"; admitting testimony of a witness who had filed a verified complaint alleging sexual abuse against the same defendant, then settled his case; finding that "the probative value of this testimony is ex- tremely high because of its similarity with the allegations in this case"); SJ Opp. at 10-11 (Doe's Statement of Material Fact (- SOMF") 1 19), citing F.R.E. 415 and passages of Epstein's and her own depositions in support of statement that from 2001 to 2006, Epstein "had sexual contact with over 30 girls under the age of 18." Moreover, Doe's response to the summary judgment motion declares that she has a great deal of evidence to show that Epstein's sexual abuse was part of "a common scheme or plan whereby he sexually abused many other underage young girls." See, e.g., SJ Opp. at 10 (SOMF 18), citing "FRE 404(b) (evidence of a common scheme or plan admissible)." F.R.E. 415. and passages from the depositions of Epstein, Jane Doe No. 2, Jane Doe No. 4, Jane Doe No. 5 and 8 This brief may be found on PACER. S.D. Fla. Civil Docket for Jane. Doe v. Jeffrey Epstein. Case # 9:08-cv- 80893-KAM ("Docket"), DE 140. -6- EFTA00207342 herself; at 35-36 (Epstein's extensive travel for the purpose of trafficking minors across borders for purposes of sex or prostitution coincided with sexual abuse of Doe and was part of a common scheme or plan). Still, Doe tries to further her contention in this proceeding that she is bereft of evidence by reference to Epstein's invocations of the Fifth Amendment during discovery and a "promise" that he will do so at trial, giving rise to her claim that 'The tape recording is Jane Doe's only opportunity to place Epstein's own words before the jury." Opp. Br. at 2-3; K. at 20 (through assertion of his Fifth Amendment privilege. "Epstein has denied Jane Doe's allegation [of sexual molestation], by opera- tion of law .. . as to all claims against him"). But as her counsel avers repeatedly in Doe's opposi- tion to Epstein's summary judgment motion, so, eg1, SJ Opp. at 4 n.5, 10 n.6, 38, it is virtually certain that she will be entitled to adverse inferences against Epstein as to the factual issues in her case based on his silence. ,Cgs Baxter v. Palmiziano 425 U.S. 308, 318, 319 (1976) ("the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them"; "'(f)ailure to contest an assertion ... is considered evidence of acquiescence ... if it would have been natural under the circum- stances to object to the assertion in question' ") (citation omitted). Eagle Hosp. Physicians. LLC v. SRC Consulting, Inc., 561 F.3d 1298, 1303-05 (11th Cir. 2009). Brink's Inc. v. City of New York, 717 F.2d 700. 709-10 (2d Cir. 1983). Cablevision Systems Corp. v. DePalma. No. CV-87- 3528 (JLC), 1989 WL 8165, at *4-5 (E.D.N.Y. Jan. 17, 1989); see also Carroll Reply Decl. 17. Doe tries to underscore her lack of evidence by maintaining that "Epstein has refused to provide any substantive discovery to Jane Doe." Opp. Br. at 20. As to that, her remedy plainly lies in mo- tion practice against Epstein in her home court, not in a subpoena to a non-party journalist. Finally. Doe states that she "of course, has no other witnesses she can call to tell what Epstein did to her behind closed doors in his mansion." Id.; see Edwards Afft 1 10 ("Epstein's abuse of Jane Doe took place in private, with only Epstein and Jane Doe present during the abuse"). However, an exchange between Doe and Epstein's attorney refers to a prior deposition in which Doe testified that the first time she was at Epstein's house, she was brought there by M. and she took off - 7- EFTA00207343 her clothes "in conjunction . .. with .." 9 In any event, whether in fact the claim of no eyewit- nesses is true, several things are clear: will be a witness at Jane Doe's trial, Opp. Br. at 11 n.10. there is likely to be circumstantial evidence such as a web of telephone calls and specially- arranged taxicabs cited in the Florida filings and there is an alleged pattern of behavior of under- aged sexual contact, as well as a guilty plea and a non-prosecution agreement. B. The Alleged Statements in the Interview Are Not Even Relevant to a Significant Issue in Doe's Case, Much Less Critical or Necessary Despite this embarrassment of evidentiary riches. Doe identifies four statements or groups of statements which she believes are contained on the tape and argues that each is highly material and critical to the maintenance of her cause — indeed, her claim "will likely rise and fall with this Court's decisions."10 Opp. Br. at 19, 23 n.19. I. A purportedly "damning admission" by Epstein either that "the only thing he might have done wrong was to maybe cross the line a little too closely," Fisten Alf ti 7, r r or that "he may have come 'too close to the line.' Edwards Afftl 13. Either way, according to plaintiff, the gist of the "admission" is that "Epstein may have crossed 'the line' between having consensual sexual relations with adult women and having non-consensual sexual relations with minor girls — girls like Jane Doe." Opp. Br. at 20-21 (emphasis added). 9 A copy of the page is annexed as Ex. E to the Carroll Reply Decl. (First page of composite Exhibit A to Doe's opposition to summary judgment (Docket, DE 140); neither the immediatelaollowing pages of this transcript nor pages reflecting the earlier testimony, are included in the exhibit.) M. is another anonymous plaintiff who is suing Epstein and is apparently Edwards' client. Edwards Mitt 11 I I.24. She is also a co- defendant with Edwards in Epstein's racketeering and fraud suit against both Edwards and M. as well as Scott Rothstein. Edwards' former law partner. ee infra. 1° Doe incorrectly states that "Imlore recent cases" in this Circuit and District have demoted the showing required under Petroleum's "critical and necessary" prong to an inquiry into "whether the information was important to the case" — andeed, one of the two cases cited by Doe as authority (Opp. at 23 n.19) states that the relevant part in the test "is satisfied where the party's claim or defense virtually rises or falls with the admission or exclusion of the proffered evidence." In re Natural Gas Commodities Litigation , 235 F.R.D. 241, 244 (S.D.N.Y. 2006) (internal quotation marks omitted). In applying the reporter's privilege in a federal question case, this Court cited Graco for the proposition that the "necessary and critical" prong of the Petroleum Products test requires a showing that the party's claim "virtually rises or falls with the admis- sion or exclusion of the proffered evidence," and dropped a footnote to explain that la[Ithough [Gracol was decided based on the New York Shield Law, 'the contours of the privilege under federal law are "identical" to those under the applicable New York statute.— See Persky. supra. 2002 WL 31769704, at *3 (McKenna. J.). " Notably. Mr. Fisten claims he "wrote up a report memorializing what Rush had told me" shortly after his conversation with Mr. Rush (Fisten Aft*" I I) but chooses not to attach the memo to his affidavit. -8- EFTA00207344  As to the supposed "damning admission," Rush attests that neither formulation of the "line" phraseology posited by plaintiff's counsel and investigator was spoken by Epstein. Supp. Rush Aff't 1 4. Of course, Doe simply does not know what Epstein said• an in camera review will estab- lish what was or was not said and whether it was said specifically in reference to Doe. But neither formulation, much less what was in fact said, meets the threshold of relevance, let alone materiality. necessity or criticality. If this is the "damning admission" on which Doe's case depends. all her claims of "ample evidence" in response to plaintiff's summary judgment motion — which Doe filed just over two weeks ago — are surely suspect. 2. An alleged statement by Epstein that one of his accusers, known in the litigations as M. (see note 9, supra) "came to him as a prostitute and a drug addict," which Doe characterizes as "a highly useful admission, as it will help to establish that Epstein has a sexual interest in minor girls — minor girls like Jane Doe. Perhaps more important, it is direct proof that Epstein knows LM. a fact that he has denied in the past." Opp. Br. at 21. Assuming, for the sake of argument, that Epstein did say what plaintiff asserts, she provides no rational basis for a finding that the statement, which concerns exclusively another individual, is about her or could be relevant, much less critical, to her litigation. The notion that it could pertain to Doe because it contradicts an alleged prior statement by Epstein that he did not know III., is patently illogical — and all the more so in light of Epstein's admission in his lawsuit against M. and others that he that he was "one of M's many 'Johns.'" See Complaint Epstein v. Rothstein, Edwards & M s, No. 50 2009 CA0 40800 (Cir. Ct., 15th Jut Cir., Palm Beach Co., Dec. 7, 2009) at 146(a), pertinent pages annexed as Ex. E to the Carroll Reply Dec1.12 As for alleged "derogatory remarks" about M., they would surely be cumulative of those Epstein already alleges in his complaint against M. 13 12 The document is available online at http://www.scribd.com/doc/23947743/121009-epstein. "Complaint, Epstein v. Rothstein et al.,II 42(h)(i) ("M. testified that she ... worked at various strip clubs; is an admitted prostitute and call girl; has a history of illegal drug use (pot, painkillers, Xanax, Ecstasy); and continually asserted the 5th Amendment during her depositions in order to avoid answering relevant but problem questions for her"); 42(j) CM. claimed in her civil complaint that Epstein "forced [her] into 'oral sex — after testifying that "she had never engaged in oral, anal, or vaginal intercourse with Epstein and she had never touched his genitalia"); 46 (has admitted under oath she was a prostitute since the age of 15, making $1,000 a day on more than 20 -9- EFTA00207345  To the degree that Doe's counsel is seeking the recording, in whole or in part, for use in other cases — i.e. for purposes other than those set out on the face of the subpoenas and argued in this proceeding - such use for other cases cannot be grounds for enforcing a subpoena in Sd case.14 As the Supreme Court held in Oppenheimer Fund. Inc, v. Sanders 437 U.S. 340. 352-53 (1978), "[W]hen the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied." This principle is enforced in this Dis- trict. Thus, the court in Night Hawk Ltd. v. Briarpatch Ltd.. L.P. No. 03 Civ. 1382 RWS, 2003 WL 23018833 (S.D.N.Y. Dec. 23, 2003) quashed a subpoena served on a third party after it deter- mined that the party-defendant was attempting to use it to not to obtain information in the under- lying action, which had been dismissed, but to gather evidence for use in state court proceedings. Ns at *8. The court analyzed the matter under the undue burden standard of Rule 45(cX3): Whether a subpoena imposes an "undue burden" "depends upon 'such factors as relevance, the need of the party for the documents, the breadth of the document, the time period covered by it, the particularity with which the documents are described and the burden imposed." The party issuing the subpoena must demonstrate that the information sought is relevant and material to the allegations and claims at issue in the proceedings.... "Rule 26(b)(1) of the Federal Rules of Civil Procedure restricts discovery to matters relevant to the claims and defenses of the parties. Here, the bur- den is on [the party . .. who issued the subpoena) to demonstrate relevance." Addi- tionally, "the status of a witness as a non-party to the underlying litigation 'entitles [the witness] to consideration regarding expense and inconvenience." ' occasions from many Johns, of whom Epstein was one); 47(a) (in sworn statement to FBI, S. "spoke so highly of Epstein and her interactions with him that the US Attorney's office informed a federal court in July 2008 that the US Attorney could not consider S. a victim" but in the deposition in her civil case testified that Epstein should be in jail and that she has "lived a shiny life because of [him]"); 47(b) (S. told the FBI under oath that Epstein never kissed, touched or treated her "in a sexual way" but in her second amended complaint alleged that Epstein "coerced [her] . . . to commit various acts of sexual misconduct [including] oral sex"); 47(c)-(e) (alleging other direct contradictions between S's FBI testimony and her deposition testimony). 14 Edwards Aft" t 9 I I ("While the present st na before the Court has been filed by Jane Doe, the Court should be aware that attorneys representing [presumably Edwards W fl may also file a subpoena for the George Rush tape shortly."); id. 1 20 ("The tape is also crucial for . to the frivolous complaint filed by Jeffrey Epstein against her. as he clearly acknowledges knowing., contrary to claims he makes in his complatagainst her and also contradictory to other statements he has made in depositions related to knowing M.); ill 25 ("I explained [to Anne Carroll) that we needed this tape for several reasons. i ing those cited by her in her pleading. The tape is detrimental to Epstein's personal complaint against M. and me."). - 10- EFTA00207346 Id. (citations omitted) (finding that the witness was entitled to attomey's fees under Rule 45(c)(1)). Salvatorie Studios. Intl v. Mako's. Inc. No. 01 CIV. 4430BSJDF, 2001 WL 913945, at •1 (S.D.N.Y. Aug. 14, 1991) ("Mako's ... has failed to establish that the [material] it seeks [from third- party law firm] is in any way relevant to the claims or defenses raised in this action.") (emphasis ori- ginal); Nicholas v. Poughkeepsie Say. Banlc/FSB No. 90 Civ. 1607 (RWS). 1991 WL 113279, at *2 (S.D.N.Y. June 14, 1991) (subpoena modified where 'The reasonable inference is that the purpose of this portion ... is to obtain facts in order to make a claim against (the subpoenaed non-party]' ; "[fin deciding whether a request comes within the discovery rules, a court is not required to blind itself to the purpose for which a party seeks information"),I5 3. Five statements allegedly made by Epstein in the interview that Doe insists are "com- pelling evidence in her case for punitive damages": that in commenting on his guilty plea and jail sentence, "Epstein states that he did nothing wrong and went to jail for no reason"; that "he further reveals in the recorded interview that his time in jail was too harsh ... and if the same circumstances would have happened in New York, he would have only received a $200 fine"; and that "[IS also stated that 'all the girls suing him' — including, of course. Jane Doe — are only trying to get a meal ticket." (Opp. Br. at 21-22.) Even if all those statements appear on the recording, which is not the case, they show little more than a defendant, charged in multiple actions with committing heinous sexual abuse on a massive scale, defending himself to a reporter in an off-the-record interview. The comment about New York law, assuming arguendo something like is on the tape. appears to be less an expression of lack of remorse than a statement of law and objective fact. Plaintiff offers no legal support for the proposition that evidence of this kind would be probative of punitive damages. In one of the two punitive damages cases cited by plaintiff, the Supreme Court set out the factors that reviewing courts must use in determining whether a punitive damage award accords with due process. They are: "(1) the degree or reprehensibility of the defendant's misconduct, (2) the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages award, and (3) the 15 See also 9 James Wm. Moore et al., Moore's Federal Practice '145-38 (3d ed. 2010) (when a nonparty is subpoenaed in an action. "Rule 45(a)( I ) . .. requires that the action be identified to the subpoenaed witness including the title, civil action number and court in which the action is pending"; "Nile failure to include. or the affirmative misstatement of, any of this identifying information makes the subpoena facially invalid and unenforceable- ) . EFTA00207347 difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." Cooper Indus.. Inc. v. Leatherman Tool Group. Inc., 532 U.S. 424, 440 (2001). None of these considerations support plaintiff's theory that a "lack of remorse" or "lack of empathy" can be the basis for punitive damages. But even if Epstein's pre-trial state of mind about the women who are suing him were rele- vant, the claimed statements would be merely cumulative of far more vehement language to be found in his complaint against Rothstein, Edwards and M., where he directly attacks the credibility and reputations of three of the women suing him — including Jane Doe.16 They would also be cumu- lative of Epstein's ruthless affirmative defenses in the underlying case. kg Main Br. at 3-4, II. Plaintiff contends that Epstein's affirmative defenses cannot be evidence of his lack of remorse because these are only "legal defenses raised by legal counsel," rather than Epstein's own views. Opp. Br. at 22. But the affirmative defenses state facts — for example that "Plaintiff consen- ted to and was a willing participant in the acts alleged" and that she "actually consented to and participated in conduct similar and/or identical to the acts alleged with other persons." The law is well-settled that facts stated in a pleading are judicial admissions that bind a party throughout a litigation. See, tg„ Best Canvas Products & Supplies. Inc. v. Ploof Truck Lines. Inc. 713 F.2d 618, 621 (11th Cir. 1983) (noting "the general rule that a party is bound by the admissions in his pleadings"; "judicial admissions are proof possessing the highest possible probative value. Indeed, facts judicially admitted are facts established not only beyond the need of evidence to prove them, but beyond the power of evidence to controvert them.") (citation omitted)• accord Chick-Fil-A, Inc. v. CFT Development. LLC, 652 F. Supp. 2d 1252. 1260 (M.D. Ha. 2009), aff'd, No. 09- 15066, 2010 WL 1006661 (11th Cir. Mar. 19,2010): Bellefonte Re Ins. Co. v. Argonaut Ins. Co. 757 F.2d 523, 528-29 (2d Cir. 1985). 1t. agg Complaint Epstein v. Rothstein a al. 1 42(b) (Jane Doe participated in a media interview "without any legitimate legal purpose other than to 'pump' the federal case for potential investors [in the Ponzi scheme] or to prejudice Epstein's right to a fair trial in Palm Beach County");1142(hXiii) (Jane Doe has admitted to lying in sworn testimony and "worked at two different strip clubs"). See notc13. supra. - 12 - EFTA00207348  4. An assertion that the recording is "clear proof that Epstein committed the crime of perjury" because, when he was asked at deposition "whether he knew George Rush[,] Epstein lied and impressed the point [sic] that he did not recognize any reporter from the Daily News." Opp. Br. at 23. Doe has not tried to explain how or why it would be important, or even relevant, to her case to obtain the recording as evidence that Epstein "committed the crime of perjury." As set forth in the Edwards Aff t at 1 19, the recording "is ... unique and not otherwise obtainable from other witnesses because it can be used to prove perjury (a federal crime) on the part of Epstein." Edwards then cites a deposition transcript, without providing the relevant pages, "wherein Jeffrey Epstein clearly impresses that he does not recognize George Rush from the New York Daily News." Offering this as a "criminal event," Edwards states that, "[i]f we receive the tape, we intend to alert the appropriate law enforcement authorities, both federal and state, so that they can pursue any appropriate criminal investigation perjury [sic] charges." Given the garbled renditions of the deposition exchange and absence of record support. it is impossible to know what question(s) Epstein was asked and how he answered. And even if instigating a criminal investigation of a litigation opponent were a proper purpose for serving subpoenas on non-party journalists — which it clearly is not" — the allegation that Epstein commit- ted a crime is meritless. See, , United States v. Monteleone 257 F.3d 210, 219 (2d Cir. 2001) ("A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory.") (emphasis added). More to the point, this evidence is at most for impeachment purposes — an insufficient reason for intruding on movants' journalistic work product. United States v. Burke, 700 F.2d at 78. Doe's assertions that there are no alternative sources for the recording she seeks from the Daily News and Rush is principally based on the mistaken premise it is the only known recording of Epstein in connection with the controversy, and therefore represents her "only opportunity to prevent [sic[ Epstein's own words to the jury that hears her case." Opp. Br. at 25. This argument 17 Indeed, counsel offered to provide an affidavit from Rush confirming that he conducted a phone interview of Epstein, but that offer was flatly rejected. (Carroll Reply Dec1.19.) - 13 - EFTA00207349 completely misconstrues the third prong of the test. There is nothing relevant, material or necessary to her case in Epstein's voice on a recording as such. The question is not whether it is the only tape, but rather, whether she can show that it contains the kind of evidence that would justify a burden- some incursion on the Daily News' and Rush's newsgathering. See In re Application to Ouash Subpoena to Nat'l Broad. Co., 79 F.3d at 353 (rejecting lower court's conclusion that "because the material contained in the out-takes sought by Graco is solely in the hands of NBC, it is 'therefore, unavailable from any other source' "; "it cannot be said that pertinent material is not obtainable elsewhere just because it is included in some out-take.") Doe asserts that she should be given the tape because she has been unable to adduce sub- stantive evidence supporting her allegations in the case but offers no cogent reason why, if the depositions she has taken in her case to date have been of "co-conspirators" who have taken the Fifth, jj at 5, she will not be able to draw adverse inferences from that testimony or why she has apparently not taken a single deposition ofEpstein's friends and acquaintances. See Main Br. at 12- 13. Edwards' explanation that "we have no information that any of those people . . . have spoken to Mr. Epstein about Jane Doe or any of the other specific victims," Edwards Afft 1 18, does not suf- fice as a showing of no alternative sources — especially in light of Doe's inability to demonstrate that the recording is even likely relevant to any significant issue in her case. 5s_q Perskv, supra at *4 ("Persky cannot think that the Court should be impressed by the fact that a mere three people were deposed and that three other individuals were 'informally questioned": noting that the Petroleum Products court "suggested that the taking of 60 or 65 depositions may be a reasonable prerequisite to disclosure"). The Court should, therefore, quash the subpoenas to the Daily News and Rush in their entirety or enter a protective order barring their enforcement. POINT II: JANE DOE HAS FAILED TO DEMONSTRATE THAT THE QUALIFIED