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Case 9:08-cv-80119-KAM Document 63 Entered on FLSD Docket 03/25/2009 Page 1 of 37
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80119-MARRA-JOHNSON
JANE DOE NO. 2,
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
DEFENDANT EPSTEIN'S RESPONSE TO PLAINTIFF'S MOTION TO
COMPEL ANSWERS TO INTERROGATORIES, and RESPONSES TO
1st and 2nd PRODUCTION OF DOCUMENTS, AND INCORPORATED
MEMORANDUM OF LAW
Defendant, JEFFREY EPSTEIN, by and through his undersigned counsel, serves
his response and supporting memorandum of law to Plaintiffs Motion to Compel
Answers to Interrogatories and Production of Documents, and Incorporated
Memorandum of Law In Support, dated March 2, 2009. In support of Defendant's
assertion of constitutional privileges and objections to discovery and in response to
Plaintiff's motion to compel, Defendant states:
Introduction
As discussed more fully herein, Defendant has asserted constitutional based
protections to the discovery requests propounded by Plaintiff. In addition and in
alternative to the constitutional protections afforded under the Fifth, Fourteenth and
Sixth Amendments, Defendant also asserted other factual/legal objections and
privileges. However, as will be evident in reviewing Plaintiffs discovery requests and
Defendant's response, the constitutional assertions are required to be determined first
so that Defendant does not risk rendering these protections meaningless in attempting
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to assert and argue the factual basis for the additional objections and privileges. See
part ILA. herein.
I. Defendant EPSTEIN has properly asserted his constitutional claims of
privilege and effective assistance of counsel, as guaranteed under the Fifth,
Sixth, and Fourteenth Amendments of the United States Constitution, to each of
the specified interrogatories and production requests.
In accordance with applicable law, EPSTEIN has properly asserted his
claims of privilege and effective assistance of counsel as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments of the United States Constitution to each of the
interrogatories propounded by Plaintiff in her first set of Interrogatories and first
production request. See Exhibit A to Plaintiffs Motion to Compel for Defendant's
Response and Objections to Plaintiff's Amended Interrogatories, and Exhibit B to
Plaintiffs motion for production requests and Defendant's responses thereto. Contrary
to Plaintiffs assertion that Defendant made an improper "blanket objection," Defendant
examined and responded to each of the discovery requests and raised constitutional
privileges, along with other alternative objections applicable to the specific interrogatory
or production request. See Exhibit A and B to Plaintiffs motion. (Although Defendant
sets forth each of the interrogatories and requests below, because Plaintiff has attached
the responses as Exhibits to her motion, Defendant does not retype the responses in
their entirety herein).
The circumstances of this case (and the others) are such that not only does
Defendant EPSTEIN face allegations of sexual misconduct with and abuse, exploitation,
and sexual battery of alleged minors in this and other civil actions, but he also faces
criminal prosecution based on the same factual allegations. The Plaintiffs attorney
represents Jane Doe Nos. 2, 3, 4, 5, 6, and 7, in civil actions against EPSTEIN filed in
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this Court. (There are additional state and federal civil actions against EPSTEIN). In
this and the other civil actions, the Plaintiffs reference federal and state criminal statutes
in an attempt to allege claims ranging from sexual battery to intentional infliction of
emotional distress, to a violation of 18 U.S.C. 2422, entitled "Coercion and enticement,
contained in Title 18, "Crimes and Criminal Procedure," Part I — "Crimes,' Chapter 117 —
"Transportation for Illegal Sexual Activity and Related Crimes'," to a cause of action
pursuant to 18 U.S.C. §2255 — which creates a civil remedy for personal injuries where
a plaintiff can show a violation of specified statutory criminal statues. Plaintiff is
attempting to allege a violation of 18 U.S.C. §2422. See endnote 1 for current text of 18
U.S.C. §2422, along with pre-2006 amended text. See Exhibit B hereto - copy of
Plaintiff's Second Amended Complaint.
Plaintiff also alleges that "Sarah Kellen, Epstein's assistant" was a part of
"Epstein's plan and scheme (which) reflected a particular pattern and method" in the
alleged recruiting of girl's to come to EPSTEIN's Palm Beach mansion and give him
"massages" in exchange for money. 2nd Am. Complaint, ¶11-12. According to the
complaint allegations — "Upon information and belief Epstein has a sexual preference
and obsession for underage minor girls." ¶8. "Sarah Kellen" would "bring the girl up a
flight of stairs to a bedroom that contained a massage table ... ." The girl would be
alone with EPSTEIN. EPSTEIN would "lie naked on the massage table, and direct the
girl to remove her clothes." "Epstein would then perform one or more lewd, lascivious
and sexual acts, including masturbation and touching the girl's vagina." 2nd Am.
Complaint, ¶11, Exhibit B. Plaintiff alleges that "in 2004-2005," she, "then
approximately 16 years old, fell into Epstein's trap and became one of his victims." ¶8.
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Plaintiff alleges that Epstein "sexually assaulted" her. ¶12 Plaintiff also alleges that
EPSTEIN "maintains his principal home in New York and also owns residences in New
Mexico, St. Thomas and Palm Beach, FL." Id, ¶7. "Upon information and belief, Jeffrey
Epstein carried out his scheme and assaulted girls in Florida, New York and on his
private island, known as Little St. James, in St. Thomas." Id, ¶9. The nature of the
allegations is (obviously) serious.
The threat of criminal prosecution is real and present as EPSTEIN remains under
the scrutiny of the United States Attorney's Office (USAO) which, as explained more
fully herein, possesses the power to move forward with its criminal prosecution against
EPSTEIN. EPSTEIN entered into a Non-Prosecution Agreement ("NPA") with United
States Attorney General's Office for the Federal Southern District of Florida. The terms
and conditions of the NPA also entailed EPSTEIN entering into a Plea Agreement with
the State Attorney's Office, Palm Beach County, State of Florida. By its terms, the NPA
took effect on June 30, 2008. As well, pursuant to the NPA, any criminal prosecution
against EPSTEIN is deferred as long as the terms and conditions of the NPA are
fulfilled by EPSTEIN. Criminal matters against EPSTEIN remain ongoing until the NPA
expires by its terms in late 2010 and as long as the USAO determines that EPSTEIN
has complied with those terms and conditions. The threat of criminal prosecution
against EPSTEIN by the USAO continues presently and through late 2010. The USAO
possesses the right to declare that the agreement has been breached, give EPSTEIN's
counsel notice, and attempt to move forward with the prosecution. In other words, the
fact that there exists a NPA does not mean that EPSTEIN is free from future criminal
prosecution. In fact, the threat of prosecution is real, substantial, and present. See
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attached Exhibit "A", Affidavit of Jack A. Goldberger, a board certified criminal defense
attorney who has in the past and is currently representing EPSTEIN.
A.
Memorandum of Law Supporting Application of Constitutional Privileges
The Fifth Amendment provides in relevant part that "No person ... shall be
compelled in any Criminal Case to be a witness against himself." Hoffman v. United
States 341 U.S. 479, 486, 71 S.Ct. 814 (1951), citing Feldman v. United States 1944,
322 U.S. 487, 489, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408." The Fifth Amendment's
privilege against self-incrimination is "accorded liberal construction in favor of the right it
was intended to secure." "The immediate and potential evils of compulsory self-
disclosure transcend any difficulties that the exercise of the privilege may impose on
society in the detection and prosecution of a crime." Id, at 490; and In re Keller
Financial Svcs. of Fla., Inc., 259 B.R. 391, 399 (M.D. Fla. 2000). The privilege not only
extends to answers that would in themselves support a conviction under a criminal
statute but likewise embraces those which would furnish a link in the chain of evidence
needed to prosecute the claimant for a crime. Id, citing Blau v. United States, 1950, 340
U.S. 159, 71 S.Ct. 223. 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
criminal proceedings." Edwin v. Price, 778 F.2d 668, 669 (11th Cir. 1985), citing
Lefkowitz v. Turlev 414 U.S. 70, 77, 94 S.C. 316, 322 (1973). See also Ohio v. Reiner,
532 U.S. 17, 21, 121 S.Ct. 1252 (2001)(The Fifth Amendment privilege is also available
to those who claim innocence. One of the Fifth Amendment's "basic functions ... is to
protect innocent men ... 'who otherwise might be ensnared by ambiguous
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circumstances."). Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's
Self-Incrimination Clause applies to the states through the Due Process Clause of the
Fourteenth Amendment - "Mt would be incongruous to have different standards
determine the validity of a claim of privilege based on the same feared prosecution,
depending on whether the claim was asserted in state or federal court."); Kastigar v.
U.S., 406 U.S. 441, 444-45, 92 S.Ct. 1653 (1972)(The Fifth Amendment privilege "can
be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory
or adjudicatory; and it protects against any disclosures which the witness reasonably
believes could be used in a criminal prosecution or could lead to other evidence that
might be so used. This Court has been zealous to safeguard the values which underlie
the privilege." (Emphasis added)).
As EPSTEIN is here, "the claimant must be 'confronted by substantial and 'real,'
and not merely trifling or imaginary, hazards of incrimination." See generally, United
States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 956, 63 L.Ed.2d 250 (1980)).
See also, United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S.
925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980)(Information is protected by the privilege
not only if it would support a criminal conviction, but even if "the responses would
merely 'provide a lead or clue' to evidence having a tendency to incriminate.").
The United States Supreme Court has made clear that the scope of 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." United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043
(2000); see also Fisher v. United States, 425 U.S. 391 (1976); McCormick on Evidence
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Title 6, Chap. 13. The Privilege Against Self-Incrimination, §138 (6th Ed.). In explaining
the application of the privilege, the Supreme Court stated:
We have held that "the act of production" itself may implicitly communicate
"statements of fact." By "producing documents in compliance with a
subpoena, the witness would admit that the papers existed, were in his
possession or control, and were authentic."FIS Moreover, as was true in this
case, when the custodian of documents responds to a subpoena, he may be
compelled to take the witness stand and answer questions designed to
determine whether he has produced everything demanded by the subpoena.
Fr120
The answers to those questions, as well as the act of production itself,
may certainly communicate information about the existence, custody, and
authenticity of the documents. Whether the constitutional privilege protects
the answers to such questions, or protects the act of production itself, is a
question that is distinct from the question whether the unprotected contents of
the documents themselves are incriminating.
FN19. "The issue presented in those cases was whether the act of
producing subpoenaed documents, not itself the making of a statement,
might nonetheless have some protected testimonial aspects. The Court
concluded that the act of production could constitute protected testimonial
communication because it might entail implicit statements of fact: by
producing documents in compliance with a subpoena, the witness would
admit that the papers existed, were in his possession or control, and were
authentic. United States v. Doe, 465 U.S., at 613, and n. 11, 104 S.Ct.
123T Fisher, 425 U.S., at 409-410, 96 S.Ct. 1569; id., at 428, 432, 96
S.Ct. 1569 (concurring opinions). See Braswell v. United States, 1487
U.S..'! at 104, 108 S.Ct. 2284; J id.,1 at 122, 108 S.Ct. 2284 (dissenting
opinion). Thus, the Court made clear that the Fifth Amendment privilege
against self-incrimination applies to acts that imply assertions of fact."...
An examination of the Court's application of these principles in other cases
indicates the Court's recognition that, in order to be testimonial, an
accused's communication must itself, explicitly or implicitly, relate a factual
assertion or disclose information. Only then is a person compelled to be a
'witness' against himself." Doe v. United States, 487 U.S., at 209-210, 108
S.Ct. 2341 (footnote omitted).
FN20. See App. 62-70. Thus, for example, after respondent had been duly
sworn by the grand jury foreman, the prosecutor called his attention to
paragraph A of the Subpoena Rider (reproduced in the Appendix, infra, at
2048-2049) and asked whether he had produced "all those documents."
App. 65.
Finally, the phrase "in any criminal case" in the text of the Fifth Amendment
might have been read to limit its coverage to compelled testimony that is used
against the defendant in the trial itself. It has, however, long been settled that
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its protection encompasses compelled statements that lead to the discovery of
incriminating evidence even though the statements themselves are not
incriminating and are not introduced into evidence. Thus, a half century ago
we held that a trial judge had erroneously rejected a defendant's claim of
privilege on the ground that his answer to the pending question would not itself
constitute evidence of the charged offense. As we explained:
"The privilege afforded not only extends to answers that would in
themselves support a conviction under a federal criminal statute but likewise
embraces those which would furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime." Hoffman v. United States, 341
U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
Compelled testimony that communicates information that may "lead to
incriminating evidence" is privileged even if the information itself is not
inculpatory. Doe v. United States, 487 U.S. 201, 208, n. 6, 108 S.Ct. 2341,
101 L.Ed.2d 184 (1988). It's the Fifth Amendment's protection against the
prosecutor's use of incriminating information derived directly or indirectly from
the compelled testimony of the respondent that is of primary relevance in this
case.
In summarizing its holding regarding the application of the Fifth Amendment
Privilege to a production request, the Hubbell Court left "no doubt that the constitutional
privilege against self incrimination protects" not only "the target of a grand jury
investigation from being compelled to answer questions designed to elicit information
about the existence of sources of potentially incriminating evidence," but the privilege
also "has the same application to the testimonial aspect of a response to a subpoena
seeking discovery of those sources." At 43, and 2047.
The privilege against self-incrimination may be asserted during discovery when a
litigant has "reasonable grounds to believe that the response would furnish a link in the
chain of evidence needed to prove a crime against a litigant." A witness, including a
civil defendant, is entitled to invoke the Fifth Amendment privilege whenever there is a
realistic possibility that the answer to a question could be used in anyway to convict the
witness of a crime or could aid in the development of other incriminating evidence that
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can be used at trial. Id; Pillsbury Company v. Conbov 495 U.S. 248, 103 S.Ct. 608
(1983). See also, Hubbell, supra, quoted above as to what is encompassed by the
phrase "in any criminal case" contained in the Fifth Amendment.
As noted, the Fifth Amendment privilege against self-incrimination is broad.
Hoffman; In re Keller Financial Svcs., supra. To deny a witness the right to invoke the
privilege, the judge must be perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness is mistaken, and that the answers cannot
possibly have such tendency to incriminate. Id, at 488, 399. Recognizing the breadth
and magnitude of this constitutional privilege, the United States Supreme Court in
discussing how a court is to analyze the application of the privilege stated —
... It is for the court to say whether his silence is justified Ropers v. United
States, 1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if 'it
clearly appears to the court that he is mistaken.' Temple v. Commonwealth,
1880, 75 Va. 892, 899. However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim is usually
required to be established in court, he would be compelled to surrender the
very protection which the privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because
injurious disclosure could result. The trial judge in appraising the claim 'must
be governed as much by his personal perception of the peculiarities of the
case as by the facts actually in evidence.'
Hoffman supra at 486-487.
Hoffman and its progeny establish that "in view of the liberal construction of the
provision [protecting against self-incrimination], after a witness has asserted the
privilege, he should be compelled to provide the requested information only if it "clearly
appears" to the court that the witness was mistaken in his invocation of the privilege."
(Emphasis added). In re Keller Financial Svcs., supra at 399, citing Hoffman, at 486.
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Finally, in order to preserve the privilege against self-incrimination, as EPSTEIN
has properly done is response to each discovery request, the privilege must be asserted
or one risks the loss or waiver of this liberty ensuring protection. See generally, U.S. v.
White, 846 F.2d 678, 690 (11th Cir. 1988)("First, it ignores the settled principle which
requires a witness to assert his Fifth Amendment rights. A witness who testifies at any
proceeding, instead of asserting his Fifth Amendment rights, loses the privilege. ... A
civil deponent cannot choose to answer questions with the expectation of later asserting
the Fifth Amendment.").
In the instant case, the privilege applies as Defendant EPSTEIN "has reasonable
cause to apprehend danger from a direct answer." The risk of incrimination resulting
from answering each of the interrogatories and requests for production is "substantial
and real" and "not trifling or imaginary haphazards of communication." See generally,
In re Keller Financial Svcs. supra at 400. Based on the nature of Plaintiffs claims,
along with the ongoing scrutiny of the USAO in the criminal matters, EPSTEIN has
"reasonable grounds to believe that his responses to the discovery would furnish a link
in the chain of evidence needed to prove a crime against him. The very nature of the
claims brought and the discovery being sought by Plaintiff in order to attempt to prove
those claims establish a realistic possibility that the answer to an interrogatory or
production request could be used in a type of way to convict EPSTEIN of a crime or aid
in the development of other incriminating evidence that can be used at a criminal trial.
Under the circumstances of this case, the threat of criminal prosecution is not
imaginary. See Exhibits A and B to Plaintiff's Motion to Compel. This Court is well
aware of the "peculiarities" of this action as it has before it other civil actions against
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EPSTEIN, all alleging similar underlying facts of sexual misconduct involving minors.
The allegations of this action and others entail EPSTEIN allegedly "recruiting" Plaintiff
and other minors to come to his home in Palm Beach to give him massages which
allegedly became sexually inappropriate in nature, and EPSTEIN in turn would pay the
minors. See Chapter 110 of Title 18, United States Code Annotated; and "predicate
acts" specified in 18 U.S.C. §2255.
Also applicable in upholding the assertion of Defendant's Fifth Amendment
privilege is the guarantee of effective assistance of counsel by the Sixth Amendment of
the U.S. Constitution. See Yarborough v. Gentry, 124 S.Ct. 1, 540 U.S. 1, 157 L.Ed.2d
1 (2003)(Sixth Amendment guarantees criminal defendants effective assistance of
counsel.), on remand 381 F.3d 1219. The United States Constitutional guarantees are
applicable to the states through the Fourteenth Amendment. Obviously, EPSTEIN's
assertion of his constitutional privileges and protections is on the advice of counsel.
EPSTEIN continues to face criminal prosecution by the USAO until the expiration of the
NPA; under the constitutional guarantee of effective assistance of counsel, he is entitled
to follow the recommended advice of his criminal defense attorney. See Exhibit A
hereto. A review of the complaint allegations and the circumstances of this case —
including multiple civil actions attempting to allege claims based upon sexual abuse and
exploitation of minors, parallel criminal matter under which EPSTEIN continues to face
prosecution for crimes based on the same allegations until the terms of the NPA have
expired and been fulfilled as determined by the USAO - establish that EPSTEIN's
invocation of his constitutional protections of the Fifth, Sixth and Fourteenth
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Amendments be upheld; otherwise such constitutional protections would be rendered
meaningless.
Circuit Court, State of Florida, recently entered order upholding assertion of Fifth
Amendment and constitutional based protections in response to discovery.
Further requiring the sustaining of Defendant's assertions of his
constitutional protections, the 15th Judicial Circuit Court in and for Palm Beach County,
State of Florida, recently entered an order sustaining Defendant's assertion of his 5th, 6th
and 14th Amendment privileges and protections in response to Plaintiff A.C.'s request
for production in A.C. v. Epstein Case No. 502008CA025129X)=MB Al. The Order,
dated February 23, 2009, and the production requests and Defendant's responses are
attached hereto as Composite Exhibit C. (Compare Requests for Production Nos. 1,
2, 3, and 4 in the instant case with the production request no. 1 in Composite Exhibit C
hereto; compare requests nos. 20 and 21 in this case with nos. 2 and 3 in Comp. Ex. C;
and compare information sought in interrogatories nos. 3, 4, 5, 6, and 15 in this case
with information sought in request nos. 2 and 3 in Comp. Ex. C).
B. Even if the Court were to agree with Plaintiff's assertion that Defendant has
asserted a "blank privilege" under the Fifth Amendment, under the facts and
circumstances of this case, such assertion would be proper.
Plaintiff claims that Defendant has improperly asserted a "blanket privilege" to the
discovery. As stated above, Defendant disagrees. Defendant evaluated each and
every discovery request in asserting applicable constitutional privileges and other
objections. The facts and circumstances of this case are such that in evaluating each of
the interrogatories and production requests on an individual basis, the constitutional
protections asserted by Defendant apply to each. The Court will note that the additional
objections raised are also tailored to each interrogatory and production request. Even
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the Court's analysis of the discovery will be on an individualized basis. However, simply
for the sake of argument, as to Plaintiffs assertion that Defendant has made a "blanket
assertion," under the facts and circumstances of this case, such an assertion is proper.
In allowing a blanket assertion, Courts have recognized a narrow exception to the
rule that the assertion of the privilege must be to each specific question. The Courts,
including this Circuit, acknowledged "an exception ... (where,) based on its knowledge
of the case and of the testimony expected from the witness, (the trial court) can
conclude that the witness could 'legitimately refuse to answer essentially all relevant
questions." United States v. Goodwin 625 F.2d 693, 701 (5th Cir. Fla. 1980)); United
States v. Tsui, 646 F.2d 365, 367-68 (9th Cir. 1981). This exception is narrow and is
applicable where the trial judge has "some special or extensive knowledge of the case
that allows evaluation of the claimed Fifth Amendment privilege even in the absence of
specific questions to the witness." Id. See also U.S. v. Smith, 157 Fed.Appx. 215,
218 (11th Cir. Ga. 2005)("A district court must make a particularized inquiry, evaluating
whether the privilege applies with respect to each specific area that the questioning
party wishes to explore. Melchor Moreno, 536 F.2d at 1049. The witness may be totally
excused from testifying only if the court finds that he could legitimately refuse to answer
essentially all relevant questions. United States v. Goodwin 625 F.2d 693, 701 (5th
Cir.1980).").
See also State of Washington v. DelGado, 18 P.3d 1141 (Wa. Ct. of App. Div. 2
2001)("There is a narrow exception allowing a blanket privilege where "based on its
knowledge of the case and of the testimony expected of the witness, [the trial court] can
conclude that the witness could legitimately refuse to answer essentially all relevant
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questions. ... For the exception to apply, the trial judge must have 'some special or
extensive knowledge of the case that allows evaluation of the claimed ... privilege even
in absence of specific questions to the witness.'").
C. Plaintiffs statement of the law in section IV, (pp. 6-7), of her motion is
incorrect under the circumstances. Contrary to Plaintiffs assertion, an adverse
Inference from invocation of the Fifth Amendment in a civil case is not always
permitted.
In section IV, (pp. 6-7), of Plaintiffs motion to compel, Plaintiffs general claim
that an adverse interest based on a defendant's invocation of the Fifth Amendment in a
civil case may be made is improper under the facts and circumstances of this case.
Plaintiff is correct as to the general rule that "adverse inferences may be drawn in the
civil context when Defendants invoke the privilege in refusing to testify in response to
probative evidence offered against them." F.T.C. v. Transnet Wireless Corp., 506
F.Supp.2d 1247, 1252, fn. 4 (S.D.Fla.,2007), citing Mitchell v. United States, 526 U.S.
314, 328, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). However, there exists a well
recognized exception to the general rule — "Courts may not draw adverse inferences,
however, if it is the sole basis for Plaintiffs prima facie case, or will cause the "automatic
entry of summary judgment." See generally, F.T.C. supra, at fn.4, citing United States
v. Premises Located at Route 13 946 F.2d 749, 756 (11th Cir.1991) (citing Pervis v.
State Farm and Cas. Co., 901 F.2d 944, 948 (11th Cir.1990)). See also S.E.C. v. Keith
Group of Companies, Inc. 1998 WL 1670405 (S.D. Fla. 1998)("When a party is a
defendant in both a civil and criminal case and is forced to choose between waiving his
Fifth Amendment privilege ... or losing the civil case on summary judgment, an
exception to the general rule ... applies. In such a situation, the Court may not make an
adverse inference about the party's refusal to testify.") Accordingly, Defendant's
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assertion that an adverse interest "under the circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and would
therefore violate the constitution," is both proper and required to be upheld at this time.
D. Plaintiffs Amended First Set of Interrogatories to Defendant
Listed below is each of the interrogatories propounded by Plaintiff. As noted
above, Defendant responded to each interrogatory separately in raising his
constitutional privileges and guarantees, and, in the alternative, raising specific other
applicable objections to each. See Exhibit A to Plaintiffs motion to compel.
No. 1. Identify all employees who performed work of services inside the Palm Beach
Residence.
No. 2. Identify all Employees not identified in response to interrogatory no. 1 who at any time
came to Defendant's Palm Beach Residence.
No. 3. Identify all persons who came to the Palm Beach Residence and who gave a massage
or were asked to give a massage to Defendant.
No. 4. Identify all persons who came to the New York Residence and who gave a massage or
were asked to give a massage to Defendant.
No. 5. Identify all persons who came to the New Mexico Residence and who gave a massage
or were asked to give a massage to Defendant.
No. 6. Identify all persons who came to the St. Thomas Residence and who gave a massage or
were asked to give a massage to Defendant.
No. 7. List all the time periods during which Jeffrey Epstein was present in the State of Florida,
including for each the date he arrive and the date he departed.
No. 8. Identify all of Jeffrey Epstein health care providers in the past (10) ten years, including
without limitation, psychologists, psychiatrists, mental health counselors, physicians, hospitals
and treatment facilities.
No. 9. (Not at issue.)' List all items in Jeffrey Epstein's possession in Palm Beach, Florida, at
any time during the period of these interrogatories, which were used or intended to be used as
sexual aids, sex toys, massage aids, and/or vibrators, and for each, list the manufacturer, model
number (if applicable), and its present location.
' Fn. 4 of Plaintiff's motion states — "Plaintiff does not challenge at this time Defendant's Fifth
Amendment privilege in response to interrogatory no. 9, which seeks information of Defendant's
sexual aids."
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No. 10. Identify all persons who provide transportation services to Jeffrey Epstein,
whether as employees or independent contractors, including without limitation, chauffeurs and
aircraft crew.
No. 11. Identify all telephone numbers used by Epstein, including cellular phones and
land lines in any of his residences, by stating the complete telephone number and the name of
the service provider.
No. 12. Identify all telephone numbers of employees of Epstein, used in the course or
scope of their employment, including cellular phones and land lines in any of his residences, by
stating the complete telephone number and the name of the service provider.
No. 13. List the names and addresses of all persons who are believed or known by you,
your agents, or your attorneys to have any knowledge concerning any of the issues in this
lawsuit; and specify the subject matter about which the witness has knowledge.
No. 14. State the name and address of every person known to you, your agents, or your
attorneys who has knowledge about, possession, or custody, or control of, any model, plat,
map, drawing, motion picture, videotape or photograph pertaining to any fact or issue involved
in this controversy; and describe as to each, what item such person has, the name and address
of the person who took or prepared it, and the date it was taken or prepared.
No. 15. Identify all persons who have made a claim, complaint, demand or threat against
You relating to alleged sexual abuse or misconduct on a minor and for each provide the
following information:
a. The person's full name, last known address and telephone number;
b. The person's attorney, if represented;
c. The date of the alleged incident(s);
d. If a civil case has been filed by or on behalf of the person, the case number and
identifying information.
No. 16. State the facts upon which you intend to rely for each denial of a pleading
allegation and for each affirmative defense you intend to make in these cases.
No. 17. Identify all witnesses from whom you have obtained or requested a written,
transcribed or recorded statement relating to any issue in these cases, and for each, in addition
to the witness's identifying information, state the date of the statement and identify the person
taking the statement.
(Emphasis added).
Defendant will address interrogatories nos. 3, 4, 5, 6, 13, 14, 15, 16, and 17,
above, as the analysis as to the application of the constitutional privileges and
protections is straightforward. Nos. 3 through 6 ask Defendant to identify anyone who
gave "massages" or were asked to give "massages" to him. Clearly, any answer to
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these interrogatories, involve compelled statements that would furnish a link in the chain
of evidence needed to prosecute the Defendant in future criminal proceedings or even
support a criminal conviction. These interrogatories seek the precise information that
the USAO investigated and continues to scrutinize. See Exhibit A hereto.
Any answer to no. 15, which seeks information "relating to alleged sexual abuse
or misconduct on a minor" on its face would also lead to incriminating evidence
protected under the Fifth Amendment privilege. The same is true for no. 16 — which
seeks "facts upon which you intend to rely for each denial of a pleading allegation and
for each affirmative defense," and Nos. 13, 14, and 17 which seek to compel EPSTEIN
to list any persons or witnesses in 13 "having any knowledge concerning any of the
issues in this lawsuit," in 14 having "knowledge about, possession, or custody, or control
of, any model, plat, map, drawing, motion picture, videotape or photograph pertaining to
any fact or issue involved in this controversy," and in 17 "whom you have obtained or
requested a written, transcribed or recorded statement relating to any issue in these
cases." In answering no. 16, Defendant would be compelled to testify as to his version
of the facts, and, in asserting affirmative defenses, he would further be compelled to
admit Plaintiffs version of the facts. In listing such person or witness, the Defendant is
further compelled to describe the subject matter, nature of the items and or statements
of such witness or person. Again, the allegations of this action are such that in
answering these interrogatories, Defendant is being compelled to incriminate himself in
crimes. By answering the specified interrogatories Defendant is being compelled to
testify as to the issues and facts not only asserted in Plaintiffs complaint, but also to
facts which present a real and substantial danger of self-incrimination. Again, the
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information sought all relate to claims of sexual abuse and exploitation of a minor. (See
Chapter 110 of Title 18, United States Code Annotated; and "predicate acts" specified in
18 U.S.C. §2255, and 18 U.S.C. §2422).
Any answer to nos. 1 and 2 would also be compelled testimony that "tends to
show that the witness himself (EPSTEIN) committed a crime" based on the nature of the
allegations. As noted above, Plaintiff alleges that at least one of EPSTEIN's
employees, Sarah Kellen, was part of the scheme or plan of sexual misconduct,
exploitation and abuse of the "girls." No. 1 is asking for any employee who performed
work or services, and no. 2 is asking EPSTEIN to testify as to anyone who came to his
Palm Beach mansion. Such compelled testimony is protected under the Fifth
Amendment as the answers "would furnish a link in the chain of evidence needed to
prosecute the claimant for a crime." Answering the questions as to who came and went
from his Palm Beach mansion would provide a "'lead or clue' to evidence having a
tendency to incriminate." See also 18 U.S.C. 2422, Coercion and Enticement. This
analysis also applies to interrogatory nos. 7 and 9 which seek, respectively, "all the time
periods during which Jeffrey Epstein was present in the State of Florida, including for
each the date he arrive and the date he departed," and "all persons who provide
transportation services to Jeffrey Epstein, whether as employees or independent
contractors, including without limitation, chauffeurs and aircraft crew." Plaintiff alleges a
time period of 2004-05 as to when the alleged to when the sexual misconduct, including
sexual assault, of a minor took place in Palm Beach, Florida. Plaintiff also alleges that
EPSTEIN engaged in the same "scheme and plan" against minor girls at his other
places of residence. Again, EPSTEIN's answer as to his travels to and from Florida,
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and within Florida, would be a link in the chain of evidence needed to convict him of a
crime.
The privilege against self-incrimination also applies to Nos. 11 and 12 which
seek, respectively, "all telephone numbers used by Epstein, including cellular phones
and land lines in any of his residences, by stating the complete telephone number and
the name of the service provider," and "all telephone numbers of employees of Epstein,
used in the course or scope of their employment, including cellular phones and land
lines in any of his residences, by stating the complete telephone number and the name
of the service provider." Again, such compelled testimony would self-incriminate
EPSTEIN based on the elements required to establish a violation of the criminal statute
18 U.S.C. §2422. Such information would be a link in the chain of evidence needed to
prosecute EPSTEIN for a crime.
Finally, the compelled testimony sought in no. 8 - "all of Jeffrey Epstein health
care providers in the past (10) ten years, including without limitation, psychologists,
psychiatrists, mental health counselors, physicians, hospitals and treatment facilities,"
could also lead to a link in the chain of evidence to convict EPSTEIN based on the
allegations which are criminal in nature — sexual misconduct with minors, and a plan
and scheme to "recruit" such minors to fulfill Epstein's "sexual preference and
obsession." See ¶8 of complaint — "Upon information and belief Epstein has a sexual
preference and obsession for underage minor girls."
As explained in Hoffman EPSTEIN is not required to "prove the hazard in the
sense in which a claim is usually required to be established in court." The United States
Supreme Court recognized placing such a requirement on a person asserting his
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constitutional privilege is in effect tantamount compelling him "to surrender the very
protection which the privilege is designed to guarantee." Under the facts and
circumstances of this case, it is evident from the implications of each of the
interrogatories or an explanation of why they can't be answered "might be dangerous
because injurious disclosure might result." Id.
Accordingly, under applicable law and the facts of this case, Defendant's
assertion of the constitutional privilege and guarantee under the 5th, Oh and 14th
Amendments of the United States Constitution are required to be upheld.
E. Plaintiff's First Production Request To Defendant
The constitutional protections are equally applicable to the request for production
propounded on Defendant by Plaintiff. See Exhibit B to Plaintiffs motion to compel.
The requests are as follows -
Request No. 1. The list provided to you by the U.S. Attorney of individuals whom the U.S.
Attorney was prepared to name in an Indictment as victims of an offense by Mr. Epstein
enumerated in 18 U.S.C. §2255.
Request No. 2. All documents referring or relating to the United States' agreement with
Defendant to defer federal prosecution subject to certain conditions, including without limitation,
the operative agreement between Defendant and the United States and all amendments,
revisions and supplements thereto.
Request No. 3. All documents referring or relating to Defendant's agreement with the
State of Florida on his plea of guilty to violations of Florida Criminal Statutes, including without
limitation, the operative plea agreement and any amendments, revisions and supplements
thereto.
Request No.4. All documents obtained in discovery or investigation relating to either the
Florida Criminal Case or the Federal Criminal Case, including without limitation, documents
obtained from any federal, state, or local law enforcement agency, the State Attorney's office
and the United States Attorney's office.
Request No. 5. All telephone records and other documents reflecting telephone calls made by
or to Defendant, including without limitation, telephone logs and message pads.
Request No. 6. All telephone records and other documents reflecting telephone calls made by
or to Defendant, including without limitation, telephone logs and message pads, reflecting
telephone calls made by or to employees.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80119-MARRA-JOHNSON
JANE DOE NO. 2,
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
DEFENDANT EPSTEIN'S RESPONSE TO PLAINTIFF'S MOTION TO
COMPEL ANSWERS TO INTERROGATORIES, and RESPONSES TO
1st and 2nd PRODUCTION OF DOCUMENTS, AND INCORPORATED
MEMORANDUM OF LAW
Defendant, JEFFREY EPSTEIN, by and through his undersigned counsel, serves
his response and supporting memorandum of law to Plaintiffs Motion to Compel
Answers to Interrogatories and Production of Documents, and Incorporated
Memorandum of Law In Support, dated March 2, 2009. In support of Defendant's
assertion of constitutional privileges and objections to discovery and in response to
Plaintiff's motion to compel, Defendant states:
Introduction
As discussed more fully herein, Defendant has asserted constitutional based
protections to the discovery requests propounded by Plaintiff. In addition and in
alternative to the constitutional protections afforded under the Fifth, Fourteenth and
Sixth Amendments, Defendant also asserted other factual/legal objections and
privileges. However, as will be evident in reviewing Plaintiffs discovery requests and
Defendant's response, the constitutional assertions are required to be determined first
so that Defendant does not risk rendering these protections meaningless in attempting
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to assert and argue the factual basis for the additional objections and privileges. See
part ILA. herein.
I. Defendant EPSTEIN has properly asserted his constitutional claims of
privilege and effective assistance of counsel, as guaranteed under the Fifth,
Sixth, and Fourteenth Amendments of the United States Constitution, to each of
the specified interrogatories and production requests.
In accordance with applicable law, EPSTEIN has properly asserted his
claims of privilege and effective assistance of counsel as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments of the United States Constitution to each of the
interrogatories propounded by Plaintiff in her first set of Interrogatories and first
production request. See Exhibit A to Plaintiffs Motion to Compel for Defendant's
Response and Objections to Plaintiff's Amended Interrogatories, and Exhibit B to
Plaintiffs motion for production requests and Defendant's responses thereto. Contrary
to Plaintiffs assertion that Defendant made an improper "blanket objection," Defendant
examined and responded to each of the discovery requests and raised constitutional
privileges, along with other alternative objections applicable to the specific interrogatory
or production request. See Exhibit A and B to Plaintiffs motion. (Although Defendant
sets forth each of the interrogatories and requests below, because Plaintiff has attached
the responses as Exhibits to her motion, Defendant does not retype the responses in
their entirety herein).
The circumstances of this case (and the others) are such that not only does
Defendant EPSTEIN face allegations of sexual misconduct with and abuse, exploitation,
and sexual battery of alleged minors in this and other civil actions, but he also faces
criminal prosecution based on the same factual allegations. The Plaintiffs attorney
represents Jane Doe Nos. 2, 3, 4, 5, 6, and 7, in civil actions against EPSTEIN filed in
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this Court. (There are additional state and federal civil actions against EPSTEIN). In
this and the other civil actions, the Plaintiffs reference federal and state criminal statutes
in an attempt to allege claims ranging from sexual battery to intentional infliction of
emotional distress, to a violation of 18 U.S.C. 2422, entitled "Coercion and enticement,
contained in Title 18, "Crimes and Criminal Procedure," Part I — "Crimes,' Chapter 117 —
"Transportation for Illegal Sexual Activity and Related Crimes'," to a cause of action
pursuant to 18 U.S.C. §2255 — which creates a civil remedy for personal injuries where
a plaintiff can show a violation of specified statutory criminal statues. Plaintiff is
attempting to allege a violation of 18 U.S.C. §2422. See endnote 1 for current text of 18
U.S.C. §2422, along with pre-2006 amended text. See Exhibit B hereto - copy of
Plaintiff's Second Amended Complaint.
Plaintiff also alleges that "Sarah Kellen, Epstein's assistant" was a part of
"Epstein's plan and scheme (which) reflected a particular pattern and method" in the
alleged recruiting of girl's to come to EPSTEIN's Palm Beach mansion and give him
"massages" in exchange for money. 2nd Am. Complaint, ¶11-12. According to the
complaint allegations — "Upon information and belief Epstein has a sexual preference
and obsession for underage minor girls." ¶8. "Sarah Kellen" would "bring the girl up a
flight of stairs to a bedroom that contained a massage table ... ." The girl would be
alone with EPSTEIN. EPSTEIN would "lie naked on the massage table, and direct the
girl to remove her clothes." "Epstein would then perform one or more lewd, lascivious
and sexual acts, including masturbation and touching the girl's vagina." 2nd Am.
Complaint, ¶11, Exhibit B. Plaintiff alleges that "in 2004-2005," she, "then
approximately 16 years old, fell into Epstein's trap and became one of his victims." ¶8.
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Plaintiff alleges that Epstein "sexually assaulted" her. ¶12 Plaintiff also alleges that
EPSTEIN "maintains his principal home in New York and also owns residences in New
Mexico, St. Thomas and Palm Beach, FL." Id, ¶7. "Upon information and belief, Jeffrey
Epstein carried out his scheme and assaulted girls in Florida, New York and on his
private island, known as Little St. James, in St. Thomas." Id, ¶9. The nature of the
allegations is (obviously) serious.
The threat of criminal prosecution is real and present as EPSTEIN remains under
the scrutiny of the United States Attorney's Office (USAO) which, as explained more
fully herein, possesses the power to move forward with its criminal prosecution against
EPSTEIN. EPSTEIN entered into a Non-Prosecution Agreement ("NPA") with United
States Attorney General's Office for the Federal Southern District of Florida. The terms
and conditions of the NPA also entailed EPSTEIN entering into a Plea Agreement with
the State Attorney's Office, Palm Beach County, State of Florida. By its terms, the NPA
took effect on June 30, 2008. As well, pursuant to the NPA, any criminal prosecution
against EPSTEIN is deferred as long as the terms and conditions of the NPA are
fulfilled by EPSTEIN. Criminal matters against EPSTEIN remain ongoing until the NPA
expires by its terms in late 2010 and as long as the USAO determines that EPSTEIN
has complied with those terms and conditions. The threat of criminal prosecution
against EPSTEIN by the USAO continues presently and through late 2010. The USAO
possesses the right to declare that the agreement has been breached, give EPSTEIN's
counsel notice, and attempt to move forward with the prosecution. In other words, the
fact that there exists a NPA does not mean that EPSTEIN is free from future criminal
prosecution. In fact, the threat of prosecution is real, substantial, and present. See
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attached Exhibit "A", Affidavit of Jack A. Goldberger, a board certified criminal defense
attorney who has in the past and is currently representing EPSTEIN.
A.
Memorandum of Law Supporting Application of Constitutional Privileges
The Fifth Amendment provides in relevant part that "No person ... shall be
compelled in any Criminal Case to be a witness against himself." Hoffman v. United
States 341 U.S. 479, 486, 71 S.Ct. 814 (1951), citing Feldman v. United States 1944,
322 U.S. 487, 489, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408." The Fifth Amendment's
privilege against self-incrimination is "accorded liberal construction in favor of the right it
was intended to secure." "The immediate and potential evils of compulsory self-
disclosure transcend any difficulties that the exercise of the privilege may impose on
society in the detection and prosecution of a crime." Id, at 490; and In re Keller
Financial Svcs. of Fla., Inc., 259 B.R. 391, 399 (M.D. Fla. 2000). The privilege not only
extends to answers that would in themselves support a conviction under a criminal
statute but likewise embraces those which would furnish a link in the chain of evidence
needed to prosecute the claimant for a crime. Id, citing Blau v. United States, 1950, 340
U.S. 159, 71 S.Ct. 223. 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
criminal proceedings." Edwin v. Price, 778 F.2d 668, 669 (11th Cir. 1985), citing
Lefkowitz v. Turlev 414 U.S. 70, 77, 94 S.C. 316, 322 (1973). See also Ohio v. Reiner,
532 U.S. 17, 21, 121 S.Ct. 1252 (2001)(The Fifth Amendment privilege is also available
to those who claim innocence. One of the Fifth Amendment's "basic functions ... is to
protect innocent men ... 'who otherwise might be ensnared by ambiguous
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circumstances."). Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's
Self-Incrimination Clause applies to the states through the Due Process Clause of the
Fourteenth Amendment - "Mt would be incongruous to have different standards
determine the validity of a claim of privilege based on the same feared prosecution,
depending on whether the claim was asserted in state or federal court."); Kastigar v.
U.S., 406 U.S. 441, 444-45, 92 S.Ct. 1653 (1972)(The Fifth Amendment privilege "can
be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory
or adjudicatory; and it protects against any disclosures which the witness reasonably
believes could be used in a criminal prosecution or could lead to other evidence that
might be so used. This Court has been zealous to safeguard the values which underlie
the privilege." (Emphasis added)).
As EPSTEIN is here, "the claimant must be 'confronted by substantial and 'real,'
and not merely trifling or imaginary, hazards of incrimination." See generally, United
States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 956, 63 L.Ed.2d 250 (1980)).
See also, United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S.
925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980)(Information is protected by the privilege
not only if it would support a criminal conviction, but even if "the responses would
merely 'provide a lead or clue' to evidence having a tendency to incriminate.").
The United States Supreme Court has made clear that the scope of 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." United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043
(2000); see also Fisher v. United States, 425 U.S. 391 (1976); McCormick on Evidence
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Title 6, Chap. 13. The Privilege Against Self-Incrimination, §138 (6th Ed.). In explaining
the application of the privilege, the Supreme Court stated:
We have held that "the act of production" itself may implicitly communicate
"statements of fact." By "producing documents in compliance with a
subpoena, the witness would admit that the papers existed, were in his
possession or control, and were authentic."FIS Moreover, as was true in this
case, when the custodian of documents responds to a subpoena, he may be
compelled to take the witness stand and answer questions designed to
determine whether he has produced everything demanded by the subpoena.
Fr120
The answers to those questions, as well as the act of production itself,
may certainly communicate information about the existence, custody, and
authenticity of the documents. Whether the constitutional privilege protects
the answers to such questions, or protects the act of production itself, is a
question that is distinct from the question whether the unprotected contents of
the documents themselves are incriminating.
FN19. "The issue presented in those cases was whether the act of
producing subpoenaed documents, not itself the making of a statement,
might nonetheless have some protected testimonial aspects. The Court
concluded that the act of production could constitute protected testimonial
communication because it might entail implicit statements of fact: by
producing documents in compliance with a subpoena, the witness would
admit that the papers existed, were in his possession or control, and were
authentic. United States v. Doe, 465 U.S., at 613, and n. 11, 104 S.Ct.
123T Fisher, 425 U.S., at 409-410, 96 S.Ct. 1569; id., at 428, 432, 96
S.Ct. 1569 (concurring opinions). See Braswell v. United States, 1487
U.S..'! at 104, 108 S.Ct. 2284; J id.,1 at 122, 108 S.Ct. 2284 (dissenting
opinion). Thus, the Court made clear that the Fifth Amendment privilege
against self-incrimination applies to acts that imply assertions of fact."...
An examination of the Court's application of these principles in other cases
indicates the Court's recognition that, in order to be testimonial, an
accused's communication must itself, explicitly or implicitly, relate a factual
assertion or disclose information. Only then is a person compelled to be a
'witness' against himself." Doe v. United States, 487 U.S., at 209-210, 108
S.Ct. 2341 (footnote omitted).
FN20. See App. 62-70. Thus, for example, after respondent had been duly
sworn by the grand jury foreman, the prosecutor called his attention to
paragraph A of the Subpoena Rider (reproduced in the Appendix, infra, at
2048-2049) and asked whether he had produced "all those documents."
App. 65.
Finally, the phrase "in any criminal case" in the text of the Fifth Amendment
might have been read to limit its coverage to compelled testimony that is used
against the defendant in the trial itself. It has, however, long been settled that
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its protection encompasses compelled statements that lead to the discovery of
incriminating evidence even though the statements themselves are not
incriminating and are not introduced into evidence. Thus, a half century ago
we held that a trial judge had erroneously rejected a defendant's claim of
privilege on the ground that his answer to the pending question would not itself
constitute evidence of the charged offense. As we explained:
"The privilege afforded not only extends to answers that would in
themselves support a conviction under a federal criminal statute but likewise
embraces those which would furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime." Hoffman v. United States, 341
U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
Compelled testimony that communicates information that may "lead to
incriminating evidence" is privileged even if the information itself is not
inculpatory. Doe v. United States, 487 U.S. 201, 208, n. 6, 108 S.Ct. 2341,
101 L.Ed.2d 184 (1988). It's the Fifth Amendment's protection against the
prosecutor's use of incriminating information derived directly or indirectly from
the compelled testimony of the respondent that is of primary relevance in this
case.
In summarizing its holding regarding the application of the Fifth Amendment
Privilege to a production request, the Hubbell Court left "no doubt that the constitutional
privilege against self incrimination protects" not only "the target of a grand jury
investigation from being compelled to answer questions designed to elicit information
about the existence of sources of potentially incriminating evidence," but the privilege
also "has the same application to the testimonial aspect of a response to a subpoena
seeking discovery of those sources." At 43, and 2047.
The privilege against self-incrimination may be asserted during discovery when a
litigant has "reasonable grounds to believe that the response would furnish a link in the
chain of evidence needed to prove a crime against a litigant." A witness, including a
civil defendant, is entitled to invoke the Fifth Amendment privilege whenever there is a
realistic possibility that the answer to a question could be used in anyway to convict the
witness of a crime or could aid in the development of other incriminating evidence that
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can be used at trial. Id; Pillsbury Company v. Conbov 495 U.S. 248, 103 S.Ct. 608
(1983). See also, Hubbell, supra, quoted above as to what is encompassed by the
phrase "in any criminal case" contained in the Fifth Amendment.
As noted, the Fifth Amendment privilege against self-incrimination is broad.
Hoffman; In re Keller Financial Svcs., supra. To deny a witness the right to invoke the
privilege, the judge must be perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness is mistaken, and that the answers cannot
possibly have such tendency to incriminate. Id, at 488, 399. Recognizing the breadth
and magnitude of this constitutional privilege, the United States Supreme Court in
discussing how a court is to analyze the application of the privilege stated —
... It is for the court to say whether his silence is justified Ropers v. United
States, 1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if 'it
clearly appears to the court that he is mistaken.' Temple v. Commonwealth,
1880, 75 Va. 892, 899. However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim is usually
required to be established in court, he would be compelled to surrender the
very protection which the privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because
injurious disclosure could result. The trial judge in appraising the claim 'must
be governed as much by his personal perception of the peculiarities of the
case as by the facts actually in evidence.'
Hoffman supra at 486-487.
Hoffman and its progeny establish that "in view of the liberal construction of the
provision [protecting against self-incrimination], after a witness has asserted the
privilege, he should be compelled to provide the requested information only if it "clearly
appears" to the court that the witness was mistaken in his invocation of the privilege."
(Emphasis added). In re Keller Financial Svcs., supra at 399, citing Hoffman, at 486.
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Finally, in order to preserve the privilege against self-incrimination, as EPSTEIN
has properly done is response to each discovery request, the privilege must be asserted
or one risks the loss or waiver of this liberty ensuring protection. See generally, U.S. v.
White, 846 F.2d 678, 690 (11th Cir. 1988)("First, it ignores the settled principle which
requires a witness to assert his Fifth Amendment rights. A witness who testifies at any
proceeding, instead of asserting his Fifth Amendment rights, loses the privilege. ... A
civil deponent cannot choose to answer questions with the expectation of later asserting
the Fifth Amendment.").
In the instant case, the privilege applies as Defendant EPSTEIN "has reasonable
cause to apprehend danger from a direct answer." The risk of incrimination resulting
from answering each of the interrogatories and requests for production is "substantial
and real" and "not trifling or imaginary haphazards of communication." See generally,
In re Keller Financial Svcs. supra at 400. Based on the nature of Plaintiffs claims,
along with the ongoing scrutiny of the USAO in the criminal matters, EPSTEIN has
"reasonable grounds to believe that his responses to the discovery would furnish a link
in the chain of evidence needed to prove a crime against him. The very nature of the
claims brought and the discovery being sought by Plaintiff in order to attempt to prove
those claims establish a realistic possibility that the answer to an interrogatory or
production request could be used in a type of way to convict EPSTEIN of a crime or aid
in the development of other incriminating evidence that can be used at a criminal trial.
Under the circumstances of this case, the threat of criminal prosecution is not
imaginary. See Exhibits A and B to Plaintiff's Motion to Compel. This Court is well
aware of the "peculiarities" of this action as it has before it other civil actions against
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EPSTEIN, all alleging similar underlying facts of sexual misconduct involving minors.
The allegations of this action and others entail EPSTEIN allegedly "recruiting" Plaintiff
and other minors to come to his home in Palm Beach to give him massages which
allegedly became sexually inappropriate in nature, and EPSTEIN in turn would pay the
minors. See Chapter 110 of Title 18, United States Code Annotated; and "predicate
acts" specified in 18 U.S.C. §2255.
Also applicable in upholding the assertion of Defendant's Fifth Amendment
privilege is the guarantee of effective assistance of counsel by the Sixth Amendment of
the U.S. Constitution. See Yarborough v. Gentry, 124 S.Ct. 1, 540 U.S. 1, 157 L.Ed.2d
1 (2003)(Sixth Amendment guarantees criminal defendants effective assistance of
counsel.), on remand 381 F.3d 1219. The United States Constitutional guarantees are
applicable to the states through the Fourteenth Amendment. Obviously, EPSTEIN's
assertion of his constitutional privileges and protections is on the advice of counsel.
EPSTEIN continues to face criminal prosecution by the USAO until the expiration of the
NPA; under the constitutional guarantee of effective assistance of counsel, he is entitled
to follow the recommended advice of his criminal defense attorney. See Exhibit A
hereto. A review of the complaint allegations and the circumstances of this case —
including multiple civil actions attempting to allege claims based upon sexual abuse and
exploitation of minors, parallel criminal matter under which EPSTEIN continues to face
prosecution for crimes based on the same allegations until the terms of the NPA have
expired and been fulfilled as determined by the USAO - establish that EPSTEIN's
invocation of his constitutional protections of the Fifth, Sixth and Fourteenth
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Amendments be upheld; otherwise such constitutional protections would be rendered
meaningless.
Circuit Court, State of Florida, recently entered order upholding assertion of Fifth
Amendment and constitutional based protections in response to discovery.
Further requiring the sustaining of Defendant's assertions of his
constitutional protections, the 15th Judicial Circuit Court in and for Palm Beach County,
State of Florida, recently entered an order sustaining Defendant's assertion of his 5th, 6th
and 14th Amendment privileges and protections in response to Plaintiff A.C.'s request
for production in A.C. v. Epstein Case No. 502008CA025129X)=MB Al. The Order,
dated February 23, 2009, and the production requests and Defendant's responses are
attached hereto as Composite Exhibit C. (Compare Requests for Production Nos. 1,
2, 3, and 4 in the instant case with the production request no. 1 in Composite Exhibit C
hereto; compare requests nos. 20 and 21 in this case with nos. 2 and 3 in Comp. Ex. C;
and compare information sought in interrogatories nos. 3, 4, 5, 6, and 15 in this case
with information sought in request nos. 2 and 3 in Comp. Ex. C).
B. Even if the Court were to agree with Plaintiff's assertion that Defendant has
asserted a "blank privilege" under the Fifth Amendment, under the facts and
circumstances of this case, such assertion would be proper.
Plaintiff claims that Defendant has improperly asserted a "blanket privilege" to the
discovery. As stated above, Defendant disagrees. Defendant evaluated each and
every discovery request in asserting applicable constitutional privileges and other
objections. The facts and circumstances of this case are such that in evaluating each of
the interrogatories and production requests on an individual basis, the constitutional
protections asserted by Defendant apply to each. The Court will note that the additional
objections raised are also tailored to each interrogatory and production request. Even
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the Court's analysis of the discovery will be on an individualized basis. However, simply
for the sake of argument, as to Plaintiffs assertion that Defendant has made a "blanket
assertion," under the facts and circumstances of this case, such an assertion is proper.
In allowing a blanket assertion, Courts have recognized a narrow exception to the
rule that the assertion of the privilege must be to each specific question. The Courts,
including this Circuit, acknowledged "an exception ... (where,) based on its knowledge
of the case and of the testimony expected from the witness, (the trial court) can
conclude that the witness could 'legitimately refuse to answer essentially all relevant
questions." United States v. Goodwin 625 F.2d 693, 701 (5th Cir. Fla. 1980)); United
States v. Tsui, 646 F.2d 365, 367-68 (9th Cir. 1981). This exception is narrow and is
applicable where the trial judge has "some special or extensive knowledge of the case
that allows evaluation of the claimed Fifth Amendment privilege even in the absence of
specific questions to the witness." Id. See also U.S. v. Smith, 157 Fed.Appx. 215,
218 (11th Cir. Ga. 2005)("A district court must make a particularized inquiry, evaluating
whether the privilege applies with respect to each specific area that the questioning
party wishes to explore. Melchor Moreno, 536 F.2d at 1049. The witness may be totally
excused from testifying only if the court finds that he could legitimately refuse to answer
essentially all relevant questions. United States v. Goodwin 625 F.2d 693, 701 (5th
Cir.1980).").
See also State of Washington v. DelGado, 18 P.3d 1141 (Wa. Ct. of App. Div. 2
2001)("There is a narrow exception allowing a blanket privilege where "based on its
knowledge of the case and of the testimony expected of the witness, [the trial court] can
conclude that the witness could legitimately refuse to answer essentially all relevant
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questions. ... For the exception to apply, the trial judge must have 'some special or
extensive knowledge of the case that allows evaluation of the claimed ... privilege even
in absence of specific questions to the witness.'").
C. Plaintiffs statement of the law in section IV, (pp. 6-7), of her motion is
incorrect under the circumstances. Contrary to Plaintiffs assertion, an adverse
Inference from invocation of the Fifth Amendment in a civil case is not always
permitted.
In section IV, (pp. 6-7), of Plaintiffs motion to compel, Plaintiffs general claim
that an adverse interest based on a defendant's invocation of the Fifth Amendment in a
civil case may be made is improper under the facts and circumstances of this case.
Plaintiff is correct as to the general rule that "adverse inferences may be drawn in the
civil context when Defendants invoke the privilege in refusing to testify in response to
probative evidence offered against them." F.T.C. v. Transnet Wireless Corp., 506
F.Supp.2d 1247, 1252, fn. 4 (S.D.Fla.,2007), citing Mitchell v. United States, 526 U.S.
314, 328, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). However, there exists a well
recognized exception to the general rule — "Courts may not draw adverse inferences,
however, if it is the sole basis for Plaintiffs prima facie case, or will cause the "automatic
entry of summary judgment." See generally, F.T.C. supra, at fn.4, citing United States
v. Premises Located at Route 13 946 F.2d 749, 756 (11th Cir.1991) (citing Pervis v.
State Farm and Cas. Co., 901 F.2d 944, 948 (11th Cir.1990)). See also S.E.C. v. Keith
Group of Companies, Inc. 1998 WL 1670405 (S.D. Fla. 1998)("When a party is a
defendant in both a civil and criminal case and is forced to choose between waiving his
Fifth Amendment privilege ... or losing the civil case on summary judgment, an
exception to the general rule ... applies. In such a situation, the Court may not make an
adverse inference about the party's refusal to testify.") Accordingly, Defendant's
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assertion that an adverse interest "under the circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and would
therefore violate the constitution," is both proper and required to be upheld at this time.
D. Plaintiffs Amended First Set of Interrogatories to Defendant
Listed below is each of the interrogatories propounded by Plaintiff. As noted
above, Defendant responded to each interrogatory separately in raising his
constitutional privileges and guarantees, and, in the alternative, raising specific other
applicable objections to each. See Exhibit A to Plaintiffs motion to compel.
No. 1. Identify all employees who performed work of services inside the Palm Beach
Residence.
No. 2. Identify all Employees not identified in response to interrogatory no. 1 who at any time
came to Defendant's Palm Beach Residence.
No. 3. Identify all persons who came to the Palm Beach Residence and who gave a massage
or were asked to give a massage to Defendant.
No. 4. Identify all persons who came to the New York Residence and who gave a massage or
were asked to give a massage to Defendant.
No. 5. Identify all persons who came to the New Mexico Residence and who gave a massage
or were asked to give a massage to Defendant.
No. 6. Identify all persons who came to the St. Thomas Residence and who gave a massage or
were asked to give a massage to Defendant.
No. 7. List all the time periods during which Jeffrey Epstein was present in the State of Florida,
including for each the date he arrive and the date he departed.
No. 8. Identify all of Jeffrey Epstein health care providers in the past (10) ten years, including
without limitation, psychologists, psychiatrists, mental health counselors, physicians, hospitals
and treatment facilities.
No. 9. (Not at issue.)' List all items in Jeffrey Epstein's possession in Palm Beach, Florida, at
any time during the period of these interrogatories, which were used or intended to be used as
sexual aids, sex toys, massage aids, and/or vibrators, and for each, list the manufacturer, model
number (if applicable), and its present location.
' Fn. 4 of Plaintiff's motion states — "Plaintiff does not challenge at this time Defendant's Fifth
Amendment privilege in response to interrogatory no. 9, which seeks information of Defendant's
sexual aids."
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No. 10. Identify all persons who provide transportation services to Jeffrey Epstein,
whether as employees or independent contractors, including without limitation, chauffeurs and
aircraft crew.
No. 11. Identify all telephone numbers used by Epstein, including cellular phones and
land lines in any of his residences, by stating the complete telephone number and the name of
the service provider.
No. 12. Identify all telephone numbers of employees of Epstein, used in the course or
scope of their employment, including cellular phones and land lines in any of his residences, by
stating the complete telephone number and the name of the service provider.
No. 13. List the names and addresses of all persons who are believed or known by you,
your agents, or your attorneys to have any knowledge concerning any of the issues in this
lawsuit; and specify the subject matter about which the witness has knowledge.
No. 14. State the name and address of every person known to you, your agents, or your
attorneys who has knowledge about, possession, or custody, or control of, any model, plat,
map, drawing, motion picture, videotape or photograph pertaining to any fact or issue involved
in this controversy; and describe as to each, what item such person has, the name and address
of the person who took or prepared it, and the date it was taken or prepared.
No. 15. Identify all persons who have made a claim, complaint, demand or threat against
You relating to alleged sexual abuse or misconduct on a minor and for each provide the
following information:
a. The person's full name, last known address and telephone number;
b. The person's attorney, if represented;
c. The date of the alleged incident(s);
d. If a civil case has been filed by or on behalf of the person, the case number and
identifying information.
No. 16. State the facts upon which you intend to rely for each denial of a pleading
allegation and for each affirmative defense you intend to make in these cases.
No. 17. Identify all witnesses from whom you have obtained or requested a written,
transcribed or recorded statement relating to any issue in these cases, and for each, in addition
to the witness's identifying information, state the date of the statement and identify the person
taking the statement.
(Emphasis added).
Defendant will address interrogatories nos. 3, 4, 5, 6, 13, 14, 15, 16, and 17,
above, as the analysis as to the application of the constitutional privileges and
protections is straightforward. Nos. 3 through 6 ask Defendant to identify anyone who
gave "massages" or were asked to give "massages" to him. Clearly, any answer to
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these interrogatories, involve compelled statements that would furnish a link in the chain
of evidence needed to prosecute the Defendant in future criminal proceedings or even
support a criminal conviction. These interrogatories seek the precise information that
the USAO investigated and continues to scrutinize. See Exhibit A hereto.
Any answer to no. 15, which seeks information "relating to alleged sexual abuse
or misconduct on a minor" on its face would also lead to incriminating evidence
protected under the Fifth Amendment privilege. The same is true for no. 16 — which
seeks "facts upon which you intend to rely for each denial of a pleading allegation and
for each affirmative defense," and Nos. 13, 14, and 17 which seek to compel EPSTEIN
to list any persons or witnesses in 13 "having any knowledge concerning any of the
issues in this lawsuit," in 14 having "knowledge about, possession, or custody, or control
of, any model, plat, map, drawing, motion picture, videotape or photograph pertaining to
any fact or issue involved in this controversy," and in 17 "whom you have obtained or
requested a written, transcribed or recorded statement relating to any issue in these
cases." In answering no. 16, Defendant would be compelled to testify as to his version
of the facts, and, in asserting affirmative defenses, he would further be compelled to
admit Plaintiffs version of the facts. In listing such person or witness, the Defendant is
further compelled to describe the subject matter, nature of the items and or statements
of such witness or person. Again, the allegations of this action are such that in
answering these interrogatories, Defendant is being compelled to incriminate himself in
crimes. By answering the specified interrogatories Defendant is being compelled to
testify as to the issues and facts not only asserted in Plaintiffs complaint, but also to
facts which present a real and substantial danger of self-incrimination. Again, the
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information sought all relate to claims of sexual abuse and exploitation of a minor. (See
Chapter 110 of Title 18, United States Code Annotated; and "predicate acts" specified in
18 U.S.C. §2255, and 18 U.S.C. §2422).
Any answer to nos. 1 and 2 would also be compelled testimony that "tends to
show that the witness himself (EPSTEIN) committed a crime" based on the nature of the
allegations. As noted above, Plaintiff alleges that at least one of EPSTEIN's
employees, Sarah Kellen, was part of the scheme or plan of sexual misconduct,
exploitation and abuse of the "girls." No. 1 is asking for any employee who performed
work or services, and no. 2 is asking EPSTEIN to testify as to anyone who came to his
Palm Beach mansion. Such compelled testimony is protected under the Fifth
Amendment as the answers "would furnish a link in the chain of evidence needed to
prosecute the claimant for a crime." Answering the questions as to who came and went
from his Palm Beach mansion would provide a "'lead or clue' to evidence having a
tendency to incriminate." See also 18 U.S.C. 2422, Coercion and Enticement. This
analysis also applies to interrogatory nos. 7 and 9 which seek, respectively, "all the time
periods during which Jeffrey Epstein was present in the State of Florida, including for
each the date he arrive and the date he departed," and "all persons who provide
transportation services to Jeffrey Epstein, whether as employees or independent
contractors, including without limitation, chauffeurs and aircraft crew." Plaintiff alleges a
time period of 2004-05 as to when the alleged to when the sexual misconduct, including
sexual assault, of a minor took place in Palm Beach, Florida. Plaintiff also alleges that
EPSTEIN engaged in the same "scheme and plan" against minor girls at his other
places of residence. Again, EPSTEIN's answer as to his travels to and from Florida,
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and within Florida, would be a link in the chain of evidence needed to convict him of a
crime.
The privilege against self-incrimination also applies to Nos. 11 and 12 which
seek, respectively, "all telephone numbers used by Epstein, including cellular phones
and land lines in any of his residences, by stating the complete telephone number and
the name of the service provider," and "all telephone numbers of employees of Epstein,
used in the course or scope of their employment, including cellular phones and land
lines in any of his residences, by stating the complete telephone number and the name
of the service provider." Again, such compelled testimony would self-incriminate
EPSTEIN based on the elements required to establish a violation of the criminal statute
18 U.S.C. §2422. Such information would be a link in the chain of evidence needed to
prosecute EPSTEIN for a crime.
Finally, the compelled testimony sought in no. 8 - "all of Jeffrey Epstein health
care providers in the past (10) ten years, including without limitation, psychologists,
psychiatrists, mental health counselors, physicians, hospitals and treatment facilities,"
could also lead to a link in the chain of evidence to convict EPSTEIN based on the
allegations which are criminal in nature — sexual misconduct with minors, and a plan
and scheme to "recruit" such minors to fulfill Epstein's "sexual preference and
obsession." See ¶8 of complaint — "Upon information and belief Epstein has a sexual
preference and obsession for underage minor girls."
As explained in Hoffman EPSTEIN is not required to "prove the hazard in the
sense in which a claim is usually required to be established in court." The United States
Supreme Court recognized placing such a requirement on a person asserting his
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constitutional privilege is in effect tantamount compelling him "to surrender the very
protection which the privilege is designed to guarantee." Under the facts and
circumstances of this case, it is evident from the implications of each of the
interrogatories or an explanation of why they can't be answered "might be dangerous
because injurious disclosure might result." Id.
Accordingly, under applicable law and the facts of this case, Defendant's
assertion of the constitutional privilege and guarantee under the 5th, Oh and 14th
Amendments of the United States Constitution are required to be upheld.
E. Plaintiff's First Production Request To Defendant
The constitutional protections are equally applicable to the request for production
propounded on Defendant by Plaintiff. See Exhibit B to Plaintiffs motion to compel.
The requests are as follows -
Request No. 1. The list provided to you by the U.S. Attorney of individuals whom the U.S.
Attorney was prepared to name in an Indictment as victims of an offense by Mr. Epstein
enumerated in 18 U.S.C. §2255.
Request No. 2. All documents referring or relating to the United States' agreement with
Defendant to defer federal prosecution subject to certain conditions, including without limitation,
the operative agreement between Defendant and the United States and all amendments,
revisions and supplements thereto.
Request No. 3. All documents referring or relating to Defendant's agreement with the
State of Florida on his plea of guilty to violations of Florida Criminal Statutes, including without
limitation, the operative plea agreement and any amendments, revisions and supplements
thereto.
Request No.4. All documents obtained in discovery or investigation relating to either the
Florida Criminal Case or the Federal Criminal Case, including without limitation, documents
obtained from any federal, state, or local law enforcement agency, the State Attorney's office
and the United States Attorney's office.
Request No. 5. All telephone records and other documents reflecting telephone calls made by
or to Defendant, including without limitation, telephone logs and message pads.
Request No. 6. All telephone records and other documents reflecting telephone calls made by
or to Defendant, including without limitation, telephone logs and message pads, reflecting
telephone calls made by or to employees.