EFTA01713166.pdf

EFTA01713166  UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA GRAND JURY MATTER FILED UNDER SEAL IN RE GRAND JURY SUBPOENAS ) DUCES TECUM IS D TO ) MOTION OF JEFFREY EPSTEIN TO INTERVENE AND TO QUASH GRAND JURY SUBPOENAS AND INCORPORATED MEMORANDUM OF LAW Now comes Jeffrey Epstein and respectfully moves this Honorable Court, pursuant to the Fourth and Fifth Amendments to the United States Constitution'and to Fed. R. Crim. P. 17(c); for an Order: A. permitting him to intervene in the matter of two grand jury subpoenas duces tecum issued to and respectively, and to move to quash said subpoenas; and B. quashing the above referenced subpoenas which require. to appear before the grand jury and to bring with him: 1. All computer equipment and electronic storage media removed from the residence located at 358 El Brillo Way, Palm Beach Florida, including but not limited to central processing units ("CPUs?), laptop computers, keyboards, printers, modems, routers, hard drives, • flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. Black Srebnick Komspan & Stumpf 2015. Biscayne Boulevard. Suite 1300 - Miami. Florida 33B1- Phone: 305-371-6421 • Fax: 305-358-2006 • www.RoyBlackcom . • EFTA01713167  2. All computer equipment and electronic storage media that currently belongs to, or has ever belonged to, Jeffrey Epstein, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, printers, modems, routers, hard drives, flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. 3. All documents and information related to the nature of the relationship between and/or end Mr. Jeffrey Epstein, including, but not ling to, retainer agreements; employment agreements; billing statements (whether submitted directly to Mr. Epstein or to a third party for reimbursement); records of the dates when services were performed and the hours worked; ••••••r telephone logs or records of dates of communications with Mr. Epstein (or with a third party on Mr. Epstein's behalf); appointment calendars/datebooks and the like (whether in hard copy or electronic form) for any period when work was performed on behalf of Mr. Epstein or when any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf); and records of fee arrangements and payments received for work performed on Mr. Epstein's behalf. . for the requested relief are as follows: The Wes A. the compelled production of these .items, assuming they exist, would violate Mr. Epstein's rights under the Fifth Amendment to the United. States Constitution; B. such production of these items, assuming they exist, would further violate Mr. Epstein's Sixth Amendment right to effective assistance of counsel as well as . his attorney-client and work-product privileges; 2 Black Srebnlitk. IComspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Nand. Florida 33131• Phone: 305-37I-642I • Fax 305-358-2006 • www.RoyBlackcom EFTA01713168  C. the subpoenas are unreasonable and oppressive and overbroad and unparticularized, in violation of the Fourth Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment, and Fed. R. Crim. Proc. 17(c); and D. the subpoenas call for purely private papers in violation of the Fifth Amendment under Boyd v. United States, 116 U.S. 616 (1886). As further reason therefore, Mr. Epstein refers the Court to the Memorandum of Law incorporated herein. 3 Black. Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421 • Far.305-358-2006 • www.Royslack.com EFTA01713169  MEMORANDUM OF LAW In or about March 2005, the Palm Beach Police Department initiated a criminal investigation of Jeffrey Epstein to determine whether he committed any criminal acts in connection with allegations that he paid women to provide massages to him in his home. According to information obtained by the local police, one or more of the women so engaged was under the age of 18 at the relevant time. Affidavit of Roy Black, Esq., sworn to July 17, 2007, annexed ("Black Aft") ¶3. Following a 16 month investigation, on July 17, 2006, Mr. Epstein was charged under Florida law with one count of soliciting a prostitute, a third degree felony. That charge is still pending. Black Aft 915. In the fall of 2005, prior to being charged with any wrongdoing, Mr. Epstein retained Roy Black, Esq., to represent him in connection with the then ongoing state investigation. Black Aff. ¶3. Mr. Black in turn hired of a a private investigation firm, to assist him in his representation of Mr. Epstein. Black Aff. 14. During the course of the state investigation, law enforcement authorities concluded that at some time, one or more computers had been removed from Mr. Epstein's home by a private investigator working at the instruction of Mr. 4 Black. Srebnlck. Komspan & Stumpf 2015. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421 Fax: 305-358-2006 • wiinv.RoyBlackcom EFTA01713170  Epstein's counsel. It is those computers;' the testimony of the private investigator; and documents relating to the retention and to the work-product of the investigator that are sought by the subpoenas. Both prior to the charge being brought and thereafter defense counsel were provided with open disclosure of the state's evidence. Black Aff. 16. As a result, all or virtually all of the evidence obtained by the state in its investigation has been reviewed by the defense. Id. Included in the materials reviewed are the audio ,and/or video taped sworn statements of 18 witnesses, transcripts of all 18 of those recorded sworn statements, the-transcript of one additional sworn statement, and over 125 pages of documents prepared by the Palm Beach Police Department which detail every sworn statement obtained by detectives, every interview conducted by detectives, all their investigative efforts, and all the evidence gathered. Id. These documents include the entire police file, as well as the probable cause affidavits prepired by Palm Beach detectives and the application for a search warrant of Mr. Epstein's home. Id. Reviewing these materials has afforded the defense with a thorough understanding of the factual bases for any allegations that have been, of could have been, made against Mr. Epstein. Black Aff.917. We do not concede the existence of any such computers. However, for purposes of this motion, we refer herein to "computers" as if one or more computers described in the subpoenas do exist. 5 Black. Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421 • Fax: 305-358-2006 • www.RoyBlack.com EFTA01713171  In approximately January 2007, a grand jury in the Southern District of Florida initiated what was termed a "parallel" investigation to determine whether the conduct in which Mr. Epstein had allegedly engaged violated federal laws, including violations of 18 U.S.C. §2423 (travel for the purpose of engaging in unlawful sexual activity); and 18 U.S.C. §2422(b), use of the internet or other means of interstate communication to persuade, entice or coerce another to engage in unlawful sexual activity. Black Aft 118, 11. We understood the conduct being . scrutinized by the federal grand jury was the same as the subject of the state prosecution. Black Aff. ¶8. Indeed, during the course of the federal investigation, prosecutors asked for and were provided with copies of the 18 recorded sworn witness statements, and further asked for copies of the transcripts of those sworn statements. Id. That the two investigations examine the same alleged conduct is also clear from Palm Beach Police Chief MB letter expressing the Department's displeasure with the actions of the state grand jury and State Attorney's Office, and explaining he was referring the matter to federal authorities in order to initiate a federal investigation of the facts. Black Aff. 19, see also Black Aft. Exhibit "B". At the same time, the Palm Beach Police Department both publicly released copies of its files, including the 87 page police report and 6 Black. Srebnick, Komspan & Stump! 201S. Biscayne Boulevard, Suite 1300 • Miami. Florida 33131. Phone: 305-371-6421 • Fax: 30S-3S8-2006 • mitvw.RoyBlackcom EFTA01713172  probable cause affidavits prepared by its detectives, and publicly announced its intentions to bring the investigation to federal authorities due to the Department's dissatisfaction with the State Attorney's handling of the matter. Black Aft $9, see also Black All. Exhibit "C". The discovery provided by state authorities in connection with the state prosecution disclosed no allegations or evidence of use of the internet, e-mail or computer based pornography or any other way in which a computer could be used to commit any of the crimes under investigation. Black Aff. 112. Nor, did the numerous discussions with federal prosecutors..regarding the federal grand jury investigation reveal any such evidence. Black Aft MO, 12, 13. These subpoenas were not issued in a vacuum. They are simply the most recent of a series of highly intrusive and unusual attempts to acquire highly personal and/or privileged information concerning Mr. Epstein that can have no relevance whatever to the investigation, including Mr. Epstein's personal tax returns, medical records including treatment notes of Mr. Epstein's treatment by a chiropractor, and now, invasion of the defense camp by seeking records of the investigative work performed by on behalf of Mr. Epstein's counsel in the very same investigation. 7 Black. Srebnick. Komspan & Stumpf 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421 • Fax: 305-358-2006 • www.RoyEllaciccom EFTA01713173  The attempt to compel the production of an investigator's "records of dates of communication with Mr. Epstein (or with a third party on Mr. Epstein's behalf)" and to compel the production of records of investigative work "performed on behalf of Mr. Epstein" is an extraordinary invasion of the defense team representing Mr. Epstein as both an indicted state criminal defendant and as a target of the current federal investigation. While the propriety of those other subpoenas is not at issue here, the subpoenas to and to his firm are. When it was pointed out to prosecutors that internal .Department of Justice rules require, interalia, that issuance of the subpoenas be predicated on the pre-approval of the Assistant Attorney General of the Criminal Division under the United States Attorneys' Manual ("USAM"), 11.255, the question as to whether such approval had been obtained was simply ducked in an unilluminating exchange of correspondence. Though such guidelines create no third party rights, the fact that the required approval evidently was not obtained highlights the continuing overreaching of this investigation. Moreover, quite apart from whether the required steps were taken internally to obtain approval before issuing the subpoenas, as -a substantive. matter, the government could not meet the internal guidelines necessary for issuing a subpoena seeking information relating to the representation of a client set forth in 8 Black Srebnicic. ICamspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421 • Fax 305-358-2006 • www.Royalackcom EFTA01713174  USAM §9-13.410, including that "the information sought [be] reasonably needed for the successful completion of the investigation." The challenged subpoenas call for the production, without limitation, of the entire contents of these computers. See Black Aff. Exhibit "A". Assuming the computers exist, they can be presumed to contain a vast array of data and documents, private and business related, none of which has been shown at any time to be of any. relevance whatever to the investigation. They would also contain information and documents protected by the attorney-client and work-product privileges. Black Aff. 9115. Compliance with the subpoenas -mOuld therefore necessarily require Mr. Epstein, through the agent of his attorney, to open all aspects of his life to government inspection and leave the government free to rummage at will through privileged, private, and business materials which are _wholly irrelevant and unrelated to the subject matter of the government's investigation.2 First, compliance with the subpoenas by Mr. and/or his firm would violate•Mr. Epstein's Fifth Amendment rights because the act of production would, 2 Even a single computer of the type in standard home usage can contain a volume of information many orders of magnitude greater than the paper storage capacity or a normal home. For example, hard drives sold in 2005 "generally have storage capacities of about eighty gigabytes, roughly the equivalent of forty million pages of text — about the information contained in the books on one floor of a typical academic library." United States v. Vilar, 2007 WI., 1075041 at *35 (S.D.N.Y. April 4, 2007) (emphasis added); accord In re Search of Premises Known as 1406 N. 2nd Ave., 2006 WL 709036 at *3 (W.D. Mich. March 17, 2006) (home computer can easily hold 40,000 books); see also In re Search of 3817 W. West.End, 321 F. Supp.2d 953, 959 (ND. Ill. 2004). 9 • Black SrebnIck Komspan & Stumpf 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131- Phone: 305-371-6421• Fax 305-358-2006 • www.RoyBlack.com EFTA01713175  under the teaching of Fisher v. United States, 425 U.S. 391, 398 (1976), result in compelling testimony from Mr. Epstein himself, in violation of his right against self incrimination. Further, it would also result in invasion of the defense camp, not only questioning actions taken by counsel to Mr. Epstein, but seeking the production of materials to which the government has no possible claim of right — materials protected by Mr. Epstein's attorney-client and work product privileges. Black Aff. 115. Moreover, it is simply beyond dispute that no court would uphold a subpoena that purports to require a person to produce every letter, every doeument, every bill, every record, every book, every photograph, every page from a magazine or newspaper he ever snipped, and every message he ever wrote, in other words, every piece of paper that is or has ever been in his home, without limitation or particularization. Yet, that is in effect what these subpoenas seek. For this reason alone, the subpoenas are per se unreasonable under the Fourth Amend-meat, the Due Process Clause of the Fifth Amendment, and Fed.R.Crim.P. Rule 17(c); and should be quashed in their entirety. Indeed, the fact that there are so many ways in which the subpoenas violate Mr. Epstein's fundamental rights may well be underscored by the fact that the government has failed to comply wither procedurally or substantively with the 10 Black. Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: 305-371-6421- It 305-358-2006 - www.Royelack.com EFTA01713176  directives of the Department of Justice regarding issuance of subpoenas calling for information relating to legal representation. Even if the Court determines that the computers themselves must be produced pursuant to the grand jury subpoenas, compelled production does not overcome the need for the government both to particularize a subpoena and further • to demonstrate probable cause to search any particular folder or file that is part of the contents of the computer. Until and unless there is a demonstration that probable cause exists to search for and seize particular documents, no search should be permitted. I. MR. EPSTEIN IS ENTITLED TO INTERVENTION AS A MATTER OF RIGHT. Fed. R. CiTv. P. 24(a) grants intervention as a matter of right . . .when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. - Mr. Epttein's interests in protecting materials encompassed within his attorney- client and work-product privileges; in preventing the use against him of compelled testimony in violation of his Fifth Amendment rights; and in protecting his 11 Black Srebnick. Komspan & Stumpf 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421- Fax: 305-358-2006 • wviw.RoyBlackcom EFTA01713177  personal and business documents from wholesale invasion by the government amply satisfy this standard. Intervention as of right under Fed.R.Civ.P. Rule 24(a)(2) must be granted if it is determined that (1) the application to intervene is timely; (2) the applicant has an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that the disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) the applicant's interest will not be represented adequately by the existing parties to the suit. Sierra Club v. Leavitt, 2007 WL 1649987 at *3 (11th Cir. June 8, 2007), quoting ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318, 1321 (11.111 Cir. 1990). As detailed below, all font requirements are amply met here. First, the application is timely, as it is being filed prior to enforcement of. the subpoenas. Second, Mr. Epstein plainly has a significant interest in protecting his attorney-client and work-product privileges, in asserting his Fifth Amendment privilege, and in preventing unwarranted government rummaging through the contents of his computers. Third, litigation concerning the enforceability of the subpoenas without Mr. Epstein's participation in the proceedings would leave him powerless to protect these vital interests. Fourth, these interests• are personal to him and cannot be represented adequately by either the government or 12 Black. Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131- Phone: 305-371-6421 Fax 305-358-2006 • wmv.RoyBlackcom EFTA01713178  Accordingly, Mr. Epstein should be afforded the right to intervene in this matter. II. MR. EPSTEIN'S ACT-OF-PRODUCTION PRIVILEGE PRECLUDES THE GOVERNMENT FROM COMPELLING MR. RILEY TO PRODUCE THE ITEMS AT ISSUE. Compelled production of the items demanded by the subpoenas would violate Mr. Epstein's right, guaranteed by the Fifth Amendment, not to be compelled to be a witness against himself. Because of the clear testimonial aspects that compliance with the subpoenas would require, the "act-of-production" privilege precludes the government from demanding that appear and produce these items. The Fifth Amendment "protects a person from being compelled to be a witness against himself". Fisher v.' United States, 425 U.S. at 398. The privilege extends beyond oral testimony to embrace all compelled testimonial communications that are potentially incriminating. It specifically includes the act of producing documents where such production itself "communicates" information. See Fisher, 425 U.S. of 408. As the Supreme Court put it: "[a]lthough the contents of a document may not be privileged, the act of producing the document may be" because "[a] government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an 13 Black Srebnick. Komspan & Stumpf • 2015. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131- Phone: 305-371-6421 • Fax 305-358-2006 • www.RoyBlackcom EFTA01713179  incriminating effect". United States v. Doe, 465 U.S. 605, 612 (1984); see also Fisher, 425 U.S. at 410 ("the act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced"). This is so because • [c]ompliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the [subpoenaed party]. It would also indicate the [subpoenaed party's] belief that the papers are those described in the subpoena. Doe, 465 U.S. at 612, quoting Fisher, 425 U.S. at 410; see also United States v. Hubbell, 530 U.S. 27, 40 (2000) (compelled testimony "is not to be found in the documents produced in response to the subpoena" but is instead "the testimony inherent in the act of producing those documents"); In re Grand Jury Subpoena, 87 F.3d 1198, 1200 (11ih Cir. 1996) ("[t]he production of documents conveys the fact that the documents exist, that they were in the possession of the witness, and that they were the documents subject to the subpoena. . . . Where these communicative acts of production have `testimonial' value and incriminate the witness, the Fifth Amendment privilege may be invoked"); accord United States v. Argomaniz, 925 F.2d 1349, 1355-56 (11th Cir. 1991) (by producing the documents called for under the subpoena, the defendant "would be establishing the existence and authenticity of the documents listed in the summons, as well as verifying that these documents 14 Black. Srebnick. Komspan 8( Stumpf 201 S. Biscayne Boulevard, Suite BOO • Miami, Florida 33131 • Phone: 305-371-6421: Fax 305-358-2006 • www.RoyBlaciccom EFTA01713180  were in his possession"); In re Grand Jury Subpoena dated April 9, 1996, 87 F.3d 1198, 1200 (11th Cir. 1996); United States v. Gecas, 50 F.3d 1549, 1566 (11th Cir. 1995); In re Grand Jury Subpoena Duces Tecum, 754 F.2d 918, 921 (11th Cir. 1985) ("the act of production alone can constitute self-incriminating testimony); In re Grand Jury 83-8, 611 F. Supp. 16, 21 (S.D. Fla. 1985) ("the act of producing evidence in response to a subpoena . . . does have testimonial aspects of its own, wholly apart from the. contents of the papers produced"); In re Keller Financial Services of Florida, Inc.; 258 B.R. 391, 403 (M.D. Fla. 2000); Federal Savings & Loan Ins. Corp. v. Hardee, 686 F. Supp 885, 887. (N.D. Fla. 1988). Had the subpoenas been served directly on Mr. Epstein and demanded that he prodUce the items which had at some •point allegedly been in his Palm Beach home or had ever belonged to him, Mr. Epstein would unquestionably be entitled to the protection of the act-of-production privilege. That is so because, as noted above, production thereof would- inherently admit that the materials exist and that they had been in his home and/or belonged to him, which would, in turn, at a minimum, implicitly authenticate the contents of the materials. See, e.g., United States v. Stewart, 2003 WL 23024461 at *3 (S.D.N.Y. December 29, 2003) (act of production privileged where government's claimed relevance for requiring the defendant to produce the subpoenaed documents "depends on the fact that the 15 Black. SrebnIck. Komspan & Stumpf 20I S. Biscayne Boulevard. Suite 1300 • Miami Florida 33131 • Phone: 305-371-6421 • Fit 305-358-2006 • wmv.RoyBlackcom EFTA01713181  documents were produced by [defendant] from his files; (c]learly such an act of production is testimonial, and may not be compelled"); United States v. Bell, 217 F.R.D. 335 (M.D. Pa. 2003) (where government lacks knowledge of specific documents, party's production of the subpoenaed documents would testify to their existence and his possession of them). Even if the government is correct in its belief that the items listed in ¶'s 1 and 2 of the subpoenas are presently in the possession of and/or his -firm, possession of the items would not lessen Mr. Epstein's right" to the protection of the act-of-production privilege. is an investigator retained to assist counsel in representing /vIr. Epstein in the very matter under investigation by the federal grand jury that issued the subpoenas. As such, la stands in the same relationship to Mr. Epstein as counsel himself. See, e.g., Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolutions Trust Corp.,. 5 F.3d 1508, 1514 (D.C.Cir.1993); In re Bieter Co., 16 F.3d 929, 936-38 (8111 Cir. 1994); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991); United States v. Cote, 456 F.2d 142, 144 (81h Cir. 1972); United States v. Judson, 322 F.2d 460, 462 (9th Cir. 1963); United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961); Burlington Indus. v. Rossville Yarn, Inc., No. CIV.A.495-CV- 0401-H, 1997 WL 404319, at 3 (N:D. Ga. June 3, 1997); see also United States v. 16 Black. Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131.• Phone: 30S-37f-642i • Fax 305-358006 • vomv.Royalackcom EFTA01713182  Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). In short, the investigator in turn stands in the shoes oflis client. See Fisher, 425 U.S. at 404. Since production of the subpoenaed items by Mr. Epstein's legal team would, therefore, be the equivalent of production by Mr. Epstein, and the testimonial communication inherent in that production is the same as if it were Mr. Epstein himself appearing before the grand jury, the full protection of the act-of- production privilege applies liere, and the subpoenas must be quashed in their • entirety. TEL THE SUBPOENAS VIOLATE: MR. EPSTEIN'S RIGHT TO COUNSEL' UNDER THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF - COUNSEL AS WELL AS • THE ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES. As drafted, in addition to his Fourth Amendment rights, the subpoenas violate the work-product doctrine, as well as Mr. Epstein's Fifth Amendment right to due process and his Sixth Amendment right to counsel. In Hickman v. Taylor,. 329 U.S. 495, 510-11 (1947), the Supreme Court recognized the modem work- product doctrine, holding that: (flu performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal 17 Black. Srebnick. Komspan & Stumpf 201S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone 305-371-6421• Fax 305-3.58-2006 • www.ltoyBladccom EFTA01713183  theories and•plan his strategy without undue and needless interference: The work-product doctrine grants attorneys "a zone of privacy within which to prepare the client's case and plan strategy, without undue interference". In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1014 (1' Cir. 1988). It applies in criminal as well as in civil cases. United States v. Nobles, 422 U.S. 225, 236-38 (1975) ("Although the work-product doctrine most frequent1S, is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital"). Equally important, the Supreme Court made it clear in Nobles that the work- product doctrine necessarily extends to work perforined by an investigator for a defendant's attorney: At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system: One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself. 422 U.S. at 238-39; see also See Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.), modified on other grounds, 30 F.3d 1347 (11i° Cir. 18 Black. Srebnick. Kornspan 8( Stumpf 201 S. Biscayne Boulevard. Suite 1300. Miami. Florida 33131- Phone: 30S-371-642I • Fax: 305-358-2006 • wviv...RoyBlack.com EFTA01713184  1994) (documents containing the mental impressions, conclusions, opinions, or other legal theories of an attorney or other representative of a party, concerning the litigation are, absolutely protected). Clearly, the subpoenas served in this case improperly infringe upon the work-product doctrine. The subpoenas seek production of retainer agreements, employment agreements, records of dates when services were performed and the hours worked, telephone logs or records of dates of communications with Mr. Epstein, appointment calendars and diaries during any period in which work was perfermed for Mr. Epstein or any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf), and records of fee arrangements and payments received for work performed on Mr. Epstein's behalf. See Black Aft Exhibit "A". These records, which contain evidence of work performed on behalf of Mr. Epstein and his attorneys, must be protected from disclosure by the work- prodiict doctrine. The government cannot invade the defense camp through the mechanism of a subpoena any more than it can by the surreptitious planting of an informant. See, e.g:, United States v. Henry, 447 U.S. 264, 266 (1980) (rule in Massiah v. United States, 377 US. 201 (1964), violated when law enforcement agent instructed jailhouse informant "to be alert" for any incriminating statements). Nor can it do 19 Black. Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421 • Fax 305-358-2006 • www.RoyBlackcom EFTA01713185  so by keeping note of the documents selected by defense counsel for copying during the disco:very process. United States v. Horn, 811 F.Supp.739 (D.N.H. 1992).3 In Horn, government counsel instructed an agent to make two copies of every document selected by defense counsel to be copied from amongst the materials made available for inspection by the government during the discovery process, and then used the documents to prepare a government witness, even after defense counsel objected to the copying and while a motion to seal the materials was pending. Horn, 811 F.Supp. at 748-749. Concluding that "there is every indication that ,the lead prosecutor wanted to . . . obtain an insight into defense counsel's trial strategy, tactics, and thought processes without any concern for the rights of the defendants," Horn, 811 F.Supp. at 749, the court found that the government had violated defendants' work-product privilege, as well as their Fifth Amendment right to due process and their Sixth Amendment right to effective _,.• assistance of counsel. 811 F.Supp. at 752; see also United States v. Horn, 29 F.3d 754, 758 (1.' Cir. 1994) (in government's appeal of one of the district court's remedies -- ordering the government to pay defense legal fees to litigate the issue — the Court noted that the district court "ruled that this prosecutorial misconduct 3 As the court in Horn noted, several courts have held that defense counsel's selection and compilation of documents in preparation for pretrial discovery fall within the highly-protected category of opinion work product. Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986); Sporck v. Pell, 759 F.2d 312, 315-16 (3d Cir. 1985); United States v. District Council of New York City and Vicinity of the United Bhd. of Carpenters and Joiners of Am., 1992 WL 208284 at *12 (S.D.N.Y. Aug. 18, 1992); James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982). 20 Black. Srebnick, Komspan & Stumpf 2015. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone: 305-371-6421- Fat 305-358-2006 • www.RoyBlack.com EFTA01713186  not only violated the defendants' work-product privilege,. but also abridged their Fifth Amendment right to due process and their Sixth Amendment right to effective assistance of counsel"); accord United States v. Marshank, 777 F.Supp. 1507, 1519 (N.D. Cal. 1991) ("[w]hen the government interferes in a defendant's relationship with his attorney to the degree that counsel's assistance is rendered ineffective, the government's misconduct may violate the defendant's Fifth Amendment right to due process as well as his Sixth Amendment right to counsel"). The subpoenas-at.issue here are akin to the conduct condemned in Horn. Here, through the issuance of a subpoena, the government seeks to track the investigation being conducted at the direction and under the supervision of his attorneys in an effort to obtain insight into defense counsel's strategy, tactics, and thought processes, without any concern for the rights of Mr. Epstein. Permitting the government to do "go would violate the work-product privilege, Mr. Epstein's Fifth Amendment right to due process and his Sixth Amendment right to effective assistance of counsel.4 Indeed, many of the ways in which the subpoenas at issue trample on Mr. Epstein's rights are the very problems sought to be avoided by the internal 4 State proceedings were commenced against Mr. Epstein on July 17, 2006. Black Aff. 15. It is well established that an individual's Sixth Amendment right to counsel attaches once prosecution is commenced. See, e.g., Texas v. Cobb, 532 U.S. 162, 167 (2001) (Sixth Amendment right to counsel attaches once prosecution is commenced). 21 Black Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Spite 1300 • Miami. Florida 33131. Phone: 305-371-6421 • Fax 305-358-2006 • www.RoyBlack.com EFTA01713187  Department of Justice guidelines for the issuance of subpoenas seeking information relating to legal representation. As demonstrated above, a subpoena to a defense investigator under these circumstances is the same as a subpoena to defense counsel. And USAM Guideline §9-11.255 requires prior Department of Justice approval for the issuance of a subpoena to a lawyer. That requirement evidently was not met. See Black Aft 115. Second, "because of the potential effects upon an attorney-client relationship that may result from the issuance of a subpoena for information relating to the attorney's representation of a client", the DOJ imposes strict requirements on such issuance. Among the requirements that must be met is that "there must be reasonable grounds to believe that . . . the information sought is reasonably needed for the successful completion of the investigation or prosecution. The subpoena must not be used to obtain peripheral or speculative information". USAM §9-13.410. Though these guidelines create no enforceable rights, the prosecutors' failure here to comply with the internal requirements provide further evidence that these subpoenas are an inappropriate and unwarranted attempt to invade Mr. Epstein's defense camp. 22 Black Srebnick. Komspan & Stumpf. 201 S. Biscayne Boulevard Suite 1300 • Miami. Florida 33131. Phone: 305-371-6421 • it 305-358-2006 • www.RoyBlackcom EFTA01713188  IV. THE SUBPOENAS ARE UNREASONABLE IN THAT IT SEEKS PRODUCTION OF THINGS UNCONNECTED TO ANY CRIME UNDER INVESTIGATION. This Court has authority to review a grand jury subpoena for reasonableness. See, e.g., United States v. R. Enterprises, Inc., 498 U.S. 292, 300-01 (1991). While the Supreme •Court has held that grand jury subpoenas are presumed reasonable, that presumption may be overcome and a subpoena quashed where, as here, "there is no reasonable possibility that the category of materials the [g]overnment seeks will produce information relevant to the general subject of the grand jury's investigation". R. Enterprises, Inc., 498 U.S: at 301. Normally, as the Supreme Court noted in R. Enterprises, Inc., recipients of a grand jury subpoena have.little or no knowledge of the crime the grand jury is investigating and will therefore •be unable to challenge the issuance of the subpoena on reasonableness grounds. Id at 301-02. Here, that is not the case. Mr. Epstein is aware not only of the subject matter, but the exact charges the grand jury is investigating. See Black Aff. 111. From that, it is clear that the evidence the. government is attempting to obtain is wholly irrelevant to' the grand jury's investigation. See Id. ¶112, 13. . The requirement that a grand jury subpoena be reasonable and particularized is beyond dispute. Not only is that explicitly stated in the Fourth Amendment, but 23 Black. Srebnick. ICornspan & Stump( 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone 30S-371-6421• Fax 305-358-2O06 • vmmr,RoyBiadccom EFTA01713189  the requirement is included in Fed. R. Crim. P. Rule 17(c). See, e.g., R. Enterprises, 498 U.S. at 299 (Rule 17(c) requires that grand jury subpoenas be reasonable); United States v. Dionisio, 410 U.S. 1, 11 (1973) ("[tjhe Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms to be regarded as reasonable"); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208-09 (1946) (holding that subpoenas although not searches and seizures under the Fourth Amendment, must be reasonable). Subpoenas, such as the ones here, which are overbroad and lack particularity such that they sweep within their scope a multitud -of irrelevant documents is quintessentially unreasonable, whether assessed under the Fourth Amendment, the Due Process Clause, or Rule 17(c). Grand juries "are not licensed to engage in arbitrary fishing expeditions". R. Enterprises, Inc., 498 U.S. at 299. Yet that is precisely what enforcement of these subpoenas would permit — unbridled rummaging.by the government through an • individual's "papers and effects" — namely, the contents of computers with no .restriction or aim other than to "find something" of which the government has no evidence whatever exists. That renders these subpoenas the equivalent of a general search — the very evil that the Fourth Amendment was crafted to prohibit. 24 Black. Srebnick. Komspan & Stumpf 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 30S-37i-6421 • Fax: 305-358-2006 • www.RoyBlack.com EFTA01713190  In its Requests at ¶1's and 2, rather than making any effort to limit the subpoenas to matters relevant to its investigation (which we submit could not here be done), the government instead improperly seeks the entire contents of the computers, despite no evidence they contain any documents of any conceivable relevance to the government's investigation. See Black Aff. Exhibit "A". Such a subpoena is unreasonable and overbroad in violation of the Fourth Amendment, the Due Process Clause, and Rule 17(c). Similarly, the materials listed in 913 are fundamentally irrelevant to the government's investigation of Mr. Epstein, which is focused on allegations of sexual activity with underage girls. Neither Mr. Epstein's communications with his retained investigator, Mr. Riley (or his firm), nor any services Riley and his firm may have performed on behalf of Mr: Epstein, has any possible bearing on the government's investigation. Moreover, as demonstrated in Point III, supra, enforcement of the subpoenas as to 13 poses a grave threat F Mr. Epstein's Sixth Amendment right to counsel and to his attorney-client and work-product privileges: For instance, certain of the materials requested in 13, such as the Requests for "information related to the nature of the relationship between and/or and Mr. Jeffrey Epstein" (Black Aff. Exhibit "A"), on 25 Black. Srebnick. Komspan & Stumpf 2015. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131 • Phone: 305-371-6421 • Fax: 305-358-2006 • www.RoyBlaciccom EFTA01713191  their face clearly implicate the work-product privilege; other Requests, such as those seeking billing records and records of services provided to Mr. Epstein, (id.), would require the redaction of work-product if the government were to be permitted access to them at all, given their irrelevance to the investigation. Since there is no issue as to Mr. Epstein's wealth or the source of the funds used to pay for the services, that irrelevance also extends to the requested documents showing the fees Mr. Epstein may have paid to for its services, as well. V. EVEN IF THE GOVERNMENT IS PERMITTED TO SEIZE THE COMPUTERS ON THE BASIS OF A GRAND JURY SUBPOENA, THE SUBPOENAS MUST BE QUASHED AS UNREASONABLE AND OPPRESSIVE, OVERBROAD AND UNPARTICULARIZED. Paragraphs 1 an