EFTA00180621.pdf

KnEusuctt-WAtsit, COMPIANI & VARGAS, BA. SUITE 503, FLAGLER CENTER 501 SOUTH FLAGLER DRIVE WEST PALM BEACH. FLORIDA 33401.5913 TELEPHONE (56 1) 659-6455 JANE KREUSLER-WALSH FACSIMILE (561) 820-8762 BARBARA J. COMPIANI REBECCA MERCIER VARGAS BOARD CERTIFIED APPELLATE LAWYERS June 30, 2009 By Hand Delivery Honorable Jeffrey Colbath Palm Beach County Courthouse Fifteenth Judicial Circuit 205 North Dixie Highway, Room 11F West Palm Beach, FL 33401 Re: Epstein v. State of Florida 15th Circuit Court Case No. 2008CF009381A Dear Judge Colbath: Writ of Certiorari, Enclosed is a copy of Epstein's Emergency Petition for to Use One Appendix and Emergency Motion to Review Denial of Stay, Motion t of Appeal. Due to the Motion to Seal, as filed with the Fourth District Cour of contents. Please let us volume of the appendix, we have only enclosed the table k you. know if you wish to receive a copy of the appendix. Than Very truly yours, E KREUSLER-WALSH JKW/bl Enclosure cc/enc. Robert D. Critton Jack A. Goldberger Jeffrey H. Sloman Judith Stevenson Arco William J. Berger Deanna K. Shullman Spencer T. Kuvin EFTA00180621  FAX NO. 5618358691 P. 01 JUN-26-2003 FRI 02:28 PM ATTERBURY, GOLDBERGER & WEISS, P.A. ATTORNEY AT LAW SUITE 1400 250 AUSTRALIAN AVENUE SOUTH WEST PALM BEACH, FLORIDA 33401-5086 TELEPHONE FAX (561) 835-8691 FAX COVER SHEET Date: 6/26/09 To: R. Alexander Acosta, Esq. USAO Barbara Burns, Esq. ASAO Bradley J. Edwards, Esq. William J. Berger, Esq. Robert D. Critton, Esq. Spencer T. Kuvin, Esq. Subject: State ofFlorida v. Epstein Pages: 3 including this cover sheet. See attached letter. ORIGINAL WILL BE SENT: YES _X NO IF THERE ARE ANY PROBLEMS WITH THE TRANSMISSION, PLEASE CONTACT (561) 659-8300 AS SOON AS POSSIBLE. The Information contained in this facsimile message is attorney privileged and confidential information Intended only for the use of the Individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in orror, please immediately notify us by telephone. Thank you. EFTA00180622 JUN-26-2009 FRI 02:28 PM JOSEPH R. ATTERBURY JACK A. GOLOBERGER JASON S.WEISS Band CercificKI CrImin3lTripl torney I Meadow of NIVII Jersey Si float; flArs June 26, 2009 TELECOPIED THIS DATE The Honorable Jeffrey Colbath Palm Beach County Courthouse 205 N. Dixie Highway Room 11F West Palm Beach, FL 33401 Re; State of Florida v. Jeffrey Epstein Dear Judge Colbath: On behalf of Mr. Epstein, we strongly object to the proposed order submitted by Deanna Shullman on behalf of the Palm Beach Post. The court has already entered an order dated June 25, 2009 on: a) Non-party, E.W.'s Motion to Vacate Order Sealing Records and Unseal Records b) Palm Beach Post's Motions to Intervene and petiti on for Access c) B.B's Motions to Intervene and for an order to Unse al Records d) Jeffrey Epstein's Motion to Make Court Records Confidential. The only matter before the court today was Defendan Stay which the court denied. Contrary to the asse t Epstein's Motion for a rtions in the proposed order submitted to you by the Palm Beach Post, the court made a spec ific finding that the Defendant Epstein has met his burden of Irreparable harm. Addit ionally, all of the other matters contained in the proposed order were addressed in the court's Order of June 25, 2009. It is the position of Defendant Epstein that the order on today should simply state that the Defendant's Motion to Stay is 's Motion to Stay denied. In this way, the court's order of June 25, 2009 on the merits of the issue and the order of the court One Clearlake Centre, Suite 1400 250 Australian Avenue South West Palm Reach. FL 33401 . . _ n SRI .659. 8300 f 561.835.8691 www.aowna.eom EFTA00180623 JUN-26-2009 FRI 02:28 PM FAX NO. 5618358691 P. 03 The Honorable Jeffrey Colbath June 26, 2009 Page 2 denying the stay motion can properly be revie wed by the Fourth District Court of Appeal. Very truly yqurs, ACK A. GOLDBERGER JAG:cg cc: U.S. Attorney's Office (via facsimile) State Attorney's Office(via facsimile) Deanna K. Shullman, Esquire (via facsimile) Bradley J. Edwards, Esquire (via facsimile) Spencer t. Kuvin, Esquire (via facsimile) EFTA00180624  THE FIFTEENTH IN THE CIRCUIT COURT OF R PALM BEACH JUDICIAL CIRCUIT, IN AND FO COUNTY, FLORIDA CRIMINAL DIVISION "W" XMB CASE NO. 502008CF009381AX 502006CF0094S4AXXMB STATE OF FLORIDA, vs. JEFFREY EPSTEIN, Defendant ENT TO STAY DISCLOSURE AGREEM ORDER DENYING MOTION e 26, 2009, on Jeffrey the Court at a hearing on Jun THIS MATTER came before Addendum y the Dis clo sur e of the No n-P rosecution Agreement and the Epstein's Motion to Sta sed upon the pa rtie s we re pre se nt an d represented by counsel. Ba thereto. The Court notes argument, it is t ORDERED AND ADJUDGED tha 1. The Motion to Stay is denied. at the docu ments available for disclosure 2. The Clerk of Court shall make 09. It is the int ent of the Court to give the noon on Thursday, July 2, 20 his attorney an opportunity to have this Defendant, Mr. Epstein, and tion from DCA. If the Clerk gets no direc Court's orders reviewed by the 491 disclose the documents on the date referred the Appellate Court, she shall to above. a this Palm Be ach, Palm Beach County, Florid DONE AND ORDERED in West SIGNED AND DATED day of June, 2009. 1 JUN 2 6 2009 JEFFREY liCOLBATH _COLSATH Circuit Court Judge EFTA00180625 Page Two Case No. 502008CF009381AXXMB/502006CF009454AXXMB Order Denying Motion to Stay Disclosure Agreement Copies furnished: District R. Alexander Acosta, U.S. Attorney's Office - Southern 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 Barbara Burns, Esq., State Attorney's Office 401 North Dixie Highway West Palm Beach, FL 33401 William J. Berger, Esq. Bradley J. Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard., Suite 1650 Ft. Lauderdale, FL 33394 Robert D. Critton, Esq. Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 Jack A. Goldberger, Esq. Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 14O0 West Palm Beach, FL 33401 Spencer T. Kuvin, Esq. Leopold-Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Deanna K. Shullman, Esq. P. O. Box 2602 Tampa, FL 33602 EFTA00180626  IN THE CIRCUIT COURT OF THE blr liENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 2008CF009381A DIVISION W STATE OF FLORIDA v. JEFFREY EPSTEIN, Defendant. EPSTEIN'S MOTION TO STAY DISCLOSURE OF THE NON- PROSECUTION AGREEMENT AND ADDENDUM PENDING REVIEW Defendant, JEFFREY EPSTEIN ("EPSTEIN"), by and through his undersigned counsel and pursuant to Rule 9.310, Florida Rules of Appellate Procedure, moves to stay disclosure of the Non-Prosecution Agreement and Addendum (collectively, the "NPA") pending review, and states: 1. In the event the Court grants Nonparty E.W.'s Motion to Vacate Order Sealing Records and Unseal Records, grants Palm Beach Post's Motion to Intervene and Petition for Access and/or denies EPSTEIN's Motion to Make Court Records Confidential, EPSTEIN moves to stay the disclosure of the NPA pending review by the Fourth District Court of Appeals. 2. Rule 9.310(a), Florida Rules of Appellate Procedure, provides in pertinent part, "...a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion , to grant, modify or deny such relief." EFTA00180627  3. A stay pending review is warranted under the circumstances because of the irreparable harm that would be caused by disclosure of the NPA including, but not limited to, substantial injury to a party by disclosing matters protected by common law and privacy rights, substantial injury to a compelling government interest, substantial injury to innocent third parties and a serious imminent threat to the fair, impartial and orderly administration of justice as set forth in the hearing record date June 25, 2009. 4. In Mariner Health Care of Nashville, Inc. ■ Baker, 739 So. 2d 608, 609 (Fla. 1st DCA 1999), defendant Mariner filed a petition for writ of certiorari after the trial court compelled it to produce certain incident reports. Mariner also moved for a stay pending review pursuant to Fla. R. App. Pro. 9.310. The trial court advised the parties that Mariner would be required to submit the incident reports to the court under seal as a prerequisite to a stay. Mariner refused to produce the documents under seal and the trial court denied the motion for stay and imposed daily fines until the documents were produced. Id. The First District Court of Appeals affirmed the trial court's order and noted Mariner has failed to explain how the production of the reports under seal would result in any prejudice. To the contrary, the records will be protected from disclosure during the entire course of the certiorari proceeding before this court. No harm can be done if this court ultimately determines that the reports are protected by the work product privilege. Id. at 610. 5. In the instant case the NPA is already filed under seal. Should the Court grant Nonparty E.W.'s Motion to Vacate Order Sealing Records and Unseal Records, grant Palm Beach Post's Motion to Intervene and Petition for Access and/or deny 2 EFTA00180628 EPSTEIN's Motion to Make Court Records Confidential, EPSTEIN requests the Court exercise its discretion under Fla. R. App. Pro. 9.310(a) and enter a stay pending review by the 41h DCA. 6. No harm will be done if the NPA remains under seal pending appellate review. To the contrary, EPSTEIN will suffer irreparable harm if a stay is not entered and the NPA is disclosed to the public. WHEREFORE, Defendant, JEFFREY EPSTEIN, respectfully requests that if the Court grants Nonparty E.W.'s Motion to Vacate Order Sealing Records and Unseal Records, grants Palm Beach Post's Motion to Intervene and Petition for Access and/or denies EPSTEIN's Motion to Make Court Records Confidential, the Court enter a stay pending review and grant any additional relief the Court deems just and proper. Certificate of Service WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Hand Delivery to JEFFREY SLOMAN, ESQ., United States Attorney's Office — Southern District, 500 S. Australian Avenue, Suite 400, West Palm Beach, FL 33401, JUDITH STEVENSON AREO, ESQ., State Attorney's Office — West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401, WILLIAM J. BERGER, ESQ., and BRADLEY J. EDWARDS, Rothstein Rosenfeldt Adler, 401 East Las Olas Boulevard, Suite 1650, Fort Lauderdale, FL 33394, JACK A. GOLDBERGER, ESQ., Atterbury, Goldberger & Weiss, P.A., 250 Australian Avenue South, Suite 1400, West Palm Beach, FL 33401, SPENCER T. KUVIN, ESQ., Leopold-Kuvin, P.A., 2925 PGA Blvd., Suite 200, Palm Beach Gardens, FL 33410, and DEANNA K. SHULLMAN, 3 EFTA00180629 400 North Ashley Drive, Suite 1100, P.O. Box 2602 (33601) Tampa, FL 33602, this 25th day of June, 2009. BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 401 (561) 842-2820 (561) 515-3148 F By: Robert D. Cri on, Jr. Florida Bar 24162 Michael J. Pike Florida Bar #617296 Counselfor Defendant Jeffrey Epstein) and Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, FL 33401-5012 Fax: 561-835-8691 Counselfor Defendant Jeffrey Epstein 4 EFTA00180630 EFTA00180631  IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, CASE NO. PALM BEACH COUNTY Petitioner, L.T. CASE NO. 2008 CF 009381A v. STATE OF FLORIDA, Respondent. / MOTION TO FILE UNDER SEAL Petitioner/defendant, JEFFREY EPSTEIN, moves this Court for an order allowing him to file the September 24, 2007 Non-Prosecution Agreement ("Agreement") and October 29, 2007 Addendum to the Non-Prosecution Agreement ("Addendum"), which are the subject of his contemporaneously filed emergency petition for certiorari and emergency motion to review denial of stay, under seal. 1. The Agreement and Addendum were executed by petitioner/defendant and the United States Attorney's Office in September 2007. They are attached in the sealed envelope. 2. The Agreement contains a confidentiality clause, precluding it from EFTA00180632 being disclosed to third parties or made part of any public record. Federal District Judge Marra has twice ordered the documents not disclosed to third parties. 3. Fifteenth Judicial Circuit Judge Deborah Pucillo ordered Mr. Epstein's attorney to file the documents under seal during his plea conference on June 30, 2008. 4. On June 25, 2009, Judge Colbath granted non-parties' motions to vacate the order sealing records and ordered them disclosed. 5. On June 26, 2009, Judge Colbath denied petitioner's motion for stay, and ordered the Clerk of Court to make the documents available for disclosure at noon on Thursday, July 2, 2009, unless this Court granted a stay. 6. It is necessary that this Court review the Agreement and Addendum in conjunction with these proceedings. To protect the purpose of the petition for writ of certiorari pending before this Court, petitioner asks to file the documents under seal. Accordingly, petitioner requests that this Court grant this motion and allow 2 EFTA00180633 him to file the Agreement and Addendum, which are separate from the appendix to his emergency petition and motion for review, under seal. I HEREBY CERTIFY that a copy of the foregoing has been sent by email and Federal Express this day of June, 2009, to: JUDITH STEVENSON ARCO U.S. Attorney's Office-Southern District State Attorney's Office-West Palm Beach 500 South Australian Avenue, Suite 400 401 North Dixie Highway West Palm Beach, FL 33401 West Palm Beach, FL 33401 WILLIAM J. BERGER DEANNA K. SHULLMAN ROTHSTEIN ROSENFELDT ADLER 400 North Ashley Drive, Suite 1100 401 East Las Olas Boulevard, Suite 1650 P. O. Box 2602 (33601) Fort Lauderdale, FL 33394 Tampa, FL 33602 Counsel for E.W. Counsel for The Palm Beach Post SPENCER T. KUVIN HONORABLE JEFFREY COLBATH LEOPOLD-KUVIN, P.A. Palm Beach County Courthouse 2925 PGA Boulevard, Suite 200 205 North Dixie Highway Palm Beach Gardens, FL 33410 Room 11F Counsel for B.B. West Palm Beach, FL 33401 ROBERT D. CRITTON of BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER of ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 and 3 EFTA00180634 JANE ICREUSLER-WALSH and BARBARA J. COMPIANI of ICREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Counsel for Petitioner By: Z9-0—/' N—E =3 -‘ (6 -- .,ER-WALSH 11L14-4. orida Bar No. 272371 4 EFTA00180635  IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, CASE NO. PALM BEACH COUNTY Petitioner, L.T. CASE NO. 2008 CF 009381A STATE OF FLORIDA, Respondent. MOTION TO USE ONE APPENDIX TO SUPPORT EMERGENCY PETITION FOR WRIT OF CERTIORARI AND EMERGENCY MOTION TO REVIEW DENIAL OF STAY Petitioner, JEFFREY EPSTEIN, moves to file one appendix in support of his contemporaneously filed emergency petition for writ of certiorari and emergency motion to review denial of stay. The documents in the appendix support both the petition and motion to review denial of stay. In order to expedite review, avoid duplication of paper and unnecessary expense, Mr. Epstein requests that this Court allow him to use the appendix in support of both the petition and motion to review denial of stay. I HEREBY CERTIFY that a copy of the foregoing has been sent by E-Mail and 1 EFTA00180636 Federal Express this emu. day of June, 2009, to: JUDITH STEVENSON ARCO U.S. Attorney's Office-Southern District State Attorney's Office-West Palm Beach 500 South Australian Avenue, Suite 400 401 North Dixie Highway West Palm Beach, FL 33401 West Palm Beach, FL 33401 WILLIAM J. BERGER DEANNA K. SHULLMAN ROTHSTEIN ROSENFELDT ADLER 400 North Ashley Drive, Suite 1100 401 East Las Olas Boulevard, Suite 1650 P. O. Box 2602 (33601) Fort Lauderdale, FL 33394 Tampa, FL 33602 Counsel for E.W. Counsel for The Palm Beach Post SPENCER T. KUVIN HONORABLE JEFFREY COLBATH LEOPOLD-KUVIN, P.A. Palm Beach County Courthouse 2925 PGA Boulevard, Suite 200 205 North Dixie Highway Palm Beach Gardens, FL 33410 Room 11F Counsel for B.B. West Palm Beach, FL 33401 ROBERT D. CRITTON BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 and 2 EFTA00180637 JANE KREUSLER-WALSH and BARBARA J. COMPIANI of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Counsel for Petitioner By: 0-12-1-• T ZIE =V-WALSH lorida Bar No. 272371 3 EFTA00180638  IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, CASE NO. PALM BEACH Petitioner, LT. CASE NO. 2008 CF 009381A v. STATE OF FLORIDA, Respondent. / PETITIONER'S EMERGENCY MOTION TO REVIEW ORDER DENYING STAY OF DISCLOSURE OF FEDERAL NON-PROSECUTION AGREEMENT AND ADDENDUM Petitioner, JEFFREY EPSTEIN, pursuant to Florida Rule of Appellate Procedure 9.310(f), requests this Court review the order denying his Motion to Stay Disclosure of Federal Non-Prosecution Agreement and Addendum pending his contemporaneously filed petition for certiorari and grant the stay.' Mr. Epstein seeks review of the stay denial on emergency basis. The court stayed disclosure until noon on Thursday, July 2, 2009 so Mr. Epstein could seek review in this Court. Absent a stay by this Court, the documents will be disclosed and there will be no adequate remedy. Petitioner, Jeffrey Epstein is referred to by proper name. Non-party interveners, E.W., B.B. and The Post are referred to as E.W., B.B. and The Post. All emphasis is supplied unless indicated otherwise. The following symbol is used: A — Petitioner's appendix. 1 EFTA00180639  FACTUAL BACKGROUND In 2006, a Florida state grand jury indicted Jeffrey Epstein for felony solicitation of prostitution. He was also charged by information with procuring persons under 18 for prostitution. The United States Attorney's Office for the Southern District of Florida began a federal grand jury investigation into allegations arising out of the same conduct. In September 2007, the United States Attorney's Office and Mr. Epstein negotiated and signed a non-prosecution agreement (A-7:38).2 The non-prosecution agreement contains an express confidentiality provision and makes specific reference to a grand jury investigation of Mr. Epstein (A-7:38). The United States Attorney's Office agreed to defer the federal criminal action on the condition that Mr. Epstein comply with many obligations, beginning with his pleading guilty to certain state charges in the Florida criminal action (A-7:38). A breach of any condition violates the non-prosecution agreement and criminal charges will resume (A-7:39-40). On June 30, 2008, Mr. Epstein pled guilty to felony solicitation of prostitution and procuring a minor under 18 for prostitution in the Florida criminal action (A-7; A- 2 The non-prosecution agreement and addendum are separately filed with a motion to seal. 2 EFTA00180640 8). Judge Deborah Dale Pucillo, sitting for the Fifteenth Judicial Circuit, accepted the plea (A-7). During the plea conference, Judge Pucillo asked Mr. Epstein whether any promises had been made to him besides the terms of the state plea (A-7:37-38). Mr. Epstein's attorney advised the court of the "confidential [non-prosecution agreement with the United States Attorney's Office] that the parties have agreed to." (A-7:38). He informed the court that Mr. Epstein's failure to comply with the terms of the state plea would violate the non-prosecution agreement (A-7:39-40). Judge Pucillo then instructed Mr. Epstein's attorney that she wanted "a sealed copy of that filed in this case." (A-7:40). When Mr. Epstein's attorney tried to comply and file the non-prosecution agreement with the court, the clerk advised him an order was necessary. On July 2, 2008, the court entered an "Agreed Order Sealing Document in Court File" (A-9). An addendum to the non-prosecution agreement was filed under seal on August 25, 2008. On July 7, 2008, Jane Doe 1 and Jane Doe 2 filed an independent action in the federal court to compel production of the non-prosecution agreement (A-1). Mr. Epstein was not a party to the proceeding, but the United States Attorney's Office 3 EFTA00180641 opposed disclosure (A-2). On August 16, 2008, Judge Marra of the Southern District ordered the United States Attorney's Office to produce the non-prosecution agreement to the Does' attorneys and to any other victims and their counsel, provided they not disclose the terms to anyone else (A-2). As a result of this order, all victims, including those with civil suits against Mr. Epstein, have access to the non-prosecution agreement and addendum. They just cannot share it with others. In September 2008, Jane Doe 1 and Jane Doe 2 filed motions in the federal action to unseal the non-prosecution agreement and addendum (A-3). The United States Attorney's Office opposed disclosure noting its confidentiality provision, the movant's right to access the agreement, and Judge Marra's protective order to which the movants voiced no objection (A-4). On February 12, 2009,3 Judge Marra denied the motion, stating in pertinent part: Petitioners' mere desire to discuss the Agreement with third parties is insufficient, in and of itself, to warrant the granting of such relief. If and when Petitioners have a specific tangible need to be relieved of the restrictions, they should file an appropriate motion. If a specific tangible need arises in a civil case Petitioners or other alleged victims are pursuing against Epstein, relief should be sought in that case, with notice to the United States, the other party to the Agreement. (A-6). 3 The order is mistakenly dated February 12, 2008 (A-6). 4 EFTA00180642  Rather than seeking relief from Judge Marra in federal court, non-party E.W., a victim of Mr. Epstein, filed a motion in the state criminal action on May 12, 2009, seeking to intervene and unseal the non-prosecution agreement and addendum pursuant to Florida Rule of Judicial Administration 2.420(d)(5) (A-10). E.W. alleged that the proper procedures had not been followed in sealing the documents (A-10). E.W. claimed these documents are relevant to her civil action against Mr. Epstein; that she, as a member of the public, has a right to have them unsealed; and that continued sealing violates public policy (A-10). On June 1, 2009, Palm Beach Newspapers d/b/a The Palm Beach Post ("The Post") moved in the state criminal action to intervene and access the non-prosecution agreement and addendum (A-11). The Post alleged that the procedures for sealing had not been followed and that "good cause exists for unsealing the documents because of their public significance." (A-11:3). Fifteenth Judicial Circuit Judge Jeffrey Colbath heard E.W.'s and The Post's motions in the state criminal action on June 10, 2009 (A-13). The court granted both motions to intervene, but deferred ruling on the motions to unseal pending a later hearing (A-13). EFTA00180643  The next day, June 11, 2009, Mr. Epstein filed a Motion to Make Court Records Confidential (A-13). Mr. Epstein alleged that the documents should remain confidential to prevent a serious imminent threat to the fair, impartial, and orderly administration of justice; to protect a compelling government interest; to avoid substantial injury to innocent third parties; and to avoid substantial injury to a party by disclosure of matters protected by a common law and privacy right, not generally inherent in the specific type of proceeding sought to be closed (A-13). Also on June 11, non-party B.B. filed motions to intervene and for an order unsealing the records, alleging grounds similar to non-parties E.W. and The Palm Beach Post (A-12). Judge Colbath heard E.W.'s, The Post's, and B.B.'s motions to unseal and Mr. Epstein's motion for confidentiality on June 25, 2009 (A-16). The court granted E.W.'s, The Post's, and B.B.'s motions and denied Mr. Eptsein's (A-16:2). The court concluded: At the time the State court took these matters under seal, the proper procedure for sealing such documents had not been followed. Neither the State of Florida nor the U.S. Government nor Mr. Epstein have [sic] presented sufficient evidence to warrant the sealing of documents currently held by the Court. (A-16:2; A-18:43). The court ruled that "[t]his Order is in no way to be interpreted as 6 EFTA00180644 permission to not comply with U.S. District Court Kenneth Marra's previous Orders." (A-16:3). Subsequent to this oral ruling, Mr. Epstein provided the court with a Motion to Stay (A-14). The court stayed disclosure until it could hear Mr. Epstein's motion to stay, scheduled for the next day (A-16:3). The court heard Mr. Epstein's stay motion on June 26, 2009 (A-19). Mr. Epstein alleged that he will be irreparably harmed by disclosure of the non-prosecution agreement and addendum (A-14). No harm will be done if the documents remain under seal pending review by this Court (A-14). The court denied the motion, but stayed disclosure until noon on Thursday, July 2, so Mr. Epstein could seek emergency review of the denial in this Court (A-17). ARGUMENT Whether to grant a stay is discretionary with the trial court. See Pabian v. Pabian, 469 So. 2d 189, 191 (Fla. 4th DCA 1985). Factors courts consider in deciding whether to grant a stay pending appellate proceedings include the likelihood of success on the merits, the likelihood of harm if not stay is granted, and the remedial quality of any such harm. See Perez v. Perez, 769 So. 2d 389, 391 n.4 (Fla. 3d DCA 1999); see also State ex rel. Price v. McCord, 380 So. 2d 1037, 1038 n.3 (Fla. 1980). The trial court agreed that Mr. Epstein had established irreparable harm (A-17:16), denied a 7 EFTA00180645 stay. The trial court abused its discretion by denying a stay. As set forth in the contemporaneously filed petition for certiorari, Mr. Epstein will likely succeed on the merits. The trial court departed from the essential requirements of law in granting the motions to unseal the confidential federal non-prosecution agreement and addendum between the United States Attorney's Office and Mr. Epstein. These documents are subject to confidentiality provisions, which the federal court recognized and enforced when it permitted disclosure to the attorneys for Jane Doe 1 and Jane Doe 2 and to any other victims and their counsel, provided they not disclose the terms to anyone else. Disclosure violates a condition of the agreement, thereby vitiating the agreement between Mr. Epstein and the United States Attorney. Disclosure also violates Judge Marra's two orders in the federal district court, denying disclosure to the parties. Judge Colbath paid lip service to this principle in stating that his "Order is in no way to be interpreted as permission to not comply with U.S. District Court Kenneth Marra's previous Orders." (A-16:3). But there is no way disclosure does not inherently violate Judge Marra's orders. The principle of supremacy required that the state court defer to the federal court 8 EFTA00180646 on this issue. U.S. Const. Art. I § 8. These documents reference federal grand jury proceedings, which are protected under Federal Rule of Criminal Procedure 6(e)(2)--an attorney for the government "must not disclose a matter occurring before the grand jury." As a consequence of the confidentiality provisions of the non-prosecution agreement, information that disclosed the existence and the subject matter of a federal grand jury proceeding which itself is protected by Federal Rule of Criminal Procedure 6(e) remains non-public, thus effectuating the privacy concerns addressed by the United States Supreme Court in Douglas and other cases. See e.g. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228-30 (1979). Under Rule 6(e), only a federal court can, absent findings, order the unsealing of federal grand jury proceedings. See Fed. R. Crim. P. 6(e)(3)(F), (G). Judge Colbath did not address this principle. Nor did Judge Colbath address the principle of comity, which required that the state court defer to the federal court, which has twice denied disclosure to third parties, on this issue. The court erred in concluding that the non-prosecution and agreement were not properly sealed. The non-parties filed their motions to unseal pursuant to Florida Rule of Judicial Administration 2.420(d) (A-10, A-11, A-12). They alleged that Judge Pucillo failed to properly seal the documents under the procedure set forth in that rule (Id.). By its terms, however, the procedures for sealing in Rule 2.420(d) (titled, "Request to Make Circuit and County Court Records in Non-Criminal Cases 9 EFTA00180647 Confidential") do not apply to criminal cases. See Fla. R. Jud. Admin. 2.420, 2007 Court Commentary ("New subdivision (d) applies to motions that seek to make court records in non-criminal cases confidential in accordance with subdivision (c)(9)."); see also In re Amendments to Fla. R. Jud. Admin. 2.420--Sealing of Court Records & Dockets, 954 So. 2d 16, 17 & 23 (Fla. 2007) (declining to adopt specific procedure regarding the sealing of court records in criminal cases and referring the matter to rules committees for further study). Under the version of rule 2.420 in effect when the documents were sealed, there is no procedure for criminal proceedings. Even under the prior version of rule 2.420, Judge Pucillo was not required to give prior notice of her intent to seal documents during the plea hearing. Committee Notes on the 1995 amendments discussing a prior version of Rule 2.420(c)(9)(D), make clear that advance notice is not always required: Unlike the closure of court proceedings, which has been held to require notice and hearing prior to closure, see Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), the closure of court records has not required prior notice. Requiring prior notice of closure of a court record may be impractical and burdensome in emergency circumstances or when closure of a court record requiring confidentiality is requested during a judicial proceeding. The local administrative rule the non-parties cite, 15th Judicial Circuit 10 EFTA00180648 Administrative Order 2.303, is not applicable either. This Administrative Order addresses the procedures for sealing criminal and non-criminal court records, but was not adopted until September 29, 2008--months after Judge Pucillo sua sponte ordered the non-prosecution agreement and its addendum filed and sealed. The Administrative Order in effect when Judge Pucillo sealed these documents was 2.032-10/06. As explained above, the procedures designated therein would not apply since Judge Pucillo filed and sealed the documents sua sponte, not by motion. To the extent that the Administrative Order conflicts with the version of rule 2.420 then in effect, the rule prevails. Judge Pucillo was not required to follow Administrative Order 2.032 when she sealed the documents in June 2008. Assuming compliance with procedures for confidentiality was required, Mr. Epstein met them. At all times, the rules of judicial administration provided that court records "shall be confidential" if a court has determined that confidentiality is required. Fla. R. Jud. Admin. 2.420(c)(9). Rule 2.420(c)(9) provides: (c) Exemptions. The following records of the judicial branch shall be confidential: •••• (9) Any court record determined to be confidential in case decision or court rule on the grounds that (A) confidentiality is required to (i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice; (ii) protect trade secrets; 11 EFTA00180649  (iii) protect a compelling governmental interest; (iv) obtain evidence to determine legal issues in a case; (I avoid substantial injury to innocent third parties; (vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed; (vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law; (B) the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (A); and (C) no less restrictive measures are available to protect the interests set forth in subdivision (A). Fla. R. Jud. Admin. 2.420(c)(9). Thus, courts are required to seal court records upon a finding that closure is need to "prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice," to "avoid substantial injury to innocent third parties" or to "avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed." Fla. R. Jud. Admin. 2.420(c)(9)(i), (v), (vi). Mr. Epstein's Motion to Make Court Records Confidential satisfied these requirements; thus, the court erred in denying it. Mr. Epstein alleged three separate grounds for confidentiality. He first argued that confidentiality is necessary to protect 12 EFTA00180650 a compelling government interest. He satisfied this prong since the United States Attorney's Office has a compelling interest in having the confidentiality provision of its contract with Mr. Epstein honored. Judge Marra already balanced that interest against arguments for disclosure and struck a balance by requiring disclosure to plaintiffs and their lawyers, but not to third parties. Secondly, Mr. Epstein contended that maintaining confidentiality will avoid injury to innocent third parties, i.e., the other persons the United States Attorney's Office agreed not to prosecute who will be harmed if the documents are unsealed. Thirdly, Mr. Epstein demonstrated that confidentiality is necessary to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed. Disclosure of these documents is not generally inherent in a state court plea hearing and will violate Mr. Epstein's common law right to confidentiality. Granting a stay would vindicate the values and purposes of grand jury secrecy which will be implicated, if a stay is denied, by the public disclosure of a confidential agreement that references matters related to a federal grand jury investigation. There is no prejudice to non-parties/interveners E.W., B.B. and The Post, if disclosure is stayed pending the outcome of Mr. Epstein's emergency petition for certiorari. Mr. Epstein, on the other hand, will suffer irreparable harm once the documents are produced--a fact 13 EFTA00180651 the trial court recognized (A-19:16)