EFTA00596643.pdf

EXHIBIT K EFTA00596643  UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN RE APPLICATION TO QUASH CASE NO. 10 M8-85 (LAK) SUBPOENA TO DAILY NEWS AND GEORGE RUSH REAL PARTY IN INTEREST JANE DOE'S RESPONSE IN OPPOSITION TO MOTION OF DAILY NEWS, L.P., TO QUASH SUBPOENA Paul G. Cassell, Esq. Motion for Admission Pro Hac Vice Pending 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: Facsimile: E-Mail: casse p aw.utah.edu Counsel for Real Party in Interest Jane Doe EFTA00596644  TABLE OF CONTENTS INTRODUCTION 1 FACTUAL AND PROCEDURAL BACKGROUND 3 ARGUMENT I. THE DAILY NEWS HAS WAIVED ANY PRIVILEGE THAT MIGHT OTHERWISE ATTACH TO THE TAPE RECORDING OF JEFFREY EPSTEIN BY PLAYING THE TAPE TO THREE PEOPLE AND DESCRIBING ITS CONTENTS IN DETAIL TO (AT LEAST) TWO MORE 6 A. Like Other Privileges, a Journalist's Privilege Can Be Waived 6 B. The Daily News Has Waived Any Privilege in the Tape Recording by Playing It for Three People and Describing It in Detail to Others 10 II. ANY QUALIFIED JOURNALIST'S PRIVILEGE OF THE DAILY NEWS IS OVERCOME BY JANE DOE'S CLEAR AND COMPELLING NEED TO OBTAIN JEFFREY EPSTEIN'S OWN WORDS ABOUT HIS SEXUAL ABUSE AND LACK OF REMORSE 13 A. To Defeat Jane Doe's Search for the Truth, The Daily News Must Bear the Burden of Proving It Is Entitled to Invoke Privilege 13 B. Because the Interview with Jeffrey Epstein Does Not Involve a Confidential Source, The Daily News Has (At Most) a Qualified Privilege in the Recording that Jane Doe Can Overcome By Showing that the Tape is "of Likely Relevance to a Significant Issue in the Case, and Is Not Reasonably Obtainable from Other Available Sources." 15 C. The Recording of the Defendant is Uniquely Valuable Evidence of His Sexual Abuse of Jane Doe and other Victims and of his Lack of Remorse 18 1. The Epstein Interview is Highly Material and Relevant to Jane Doe's Civil Suit for Sexual Abuse Seeking Compensatory and Punitive Damages and Necessary and Critical to the Maintenance of Her Claim 19 2. The Words Out of Epstein's Own Mouth Are Unique and Not Obtainable from Other Sources 24 EFTA00596645 III. THE COURT SHOULD EXAMINE THE RECORDING IN CAMERA 25 IV. THE COURT SHOULD HOLD A BRIEF EVIDENTIARY HEARING RATHER THAN RELY ON DISPUTED CLAIMS OF GEORGE RUSH 26 CONCLUSION 27 ii EFTA00596646  PLAINTIFF JANE DOE'S RESPONSE IN OPPOSITION TO MOTION OF DAILY NEWS, L.P., TO QUASH SUBPOENA The real party in interest in this matter, Jane Doe,' was repeatedly sexually abused by billionaire Jeffery Epstein when she was a minor. She ultimately filed a civil suit to recover her actual damages and punitive damages in the U.S. District Court for the Southern District of Florida, raising both federal and state claims. Thus far in the litigation, however, her effort to obtain any substantive discovery from Epstein about his sexual abuse has been blocked. In particular, Epstein has invoked his Fifth Amendment right to silence — thereby functionally denying the allegations that Jane Doe has made. Epstein intends to invoke his Fifth Amendment right at trial. As result of these barriers, Jane Doe has been unable to obtain any admission from Epstein that he sexually abused her as a minor. She has also been unable to obtain any evidence of his lack of remorse for this abuse, a critical issue in her effort to secure substantial punitive damages. In the fall of 2009, Michael Fisten, an investigator working for Jane Doe, heard from an author that Daily News reporter George Rush had made a tape recording of Epstein discussing the sexual abuse of minor girls. The author told Fisten that Rush had played the tape for her and two other persons. The author concluded: "You've got to get that tape." Fisten then called Rush. Rush described the tape at great length to Fisten, including damning admissions made by Epstein. Rush also later called Brad Edwards (the attorney for Jane Doe) and again described the salient parts of the tape — including statements by Epstein about 'coming close to crossing a line" concerning sex with underage girls and blaming them for the abuse. Because the underlying litigation involves the sexual abuse of Jane Doe was she was a minor, she has proceeded by way of the pseudonym "Jane Doe." 1 EFTA00596647  Jane Doe filed a proper subpoena for the tape. Rush and the Daily News, however, have now filed a motion to quash, claiming that the tape recording is somehow protected by a journalist's privilege. The Daily News cannot carry its burden of refusing to respond to the proper subpoena for two simple reasons. First, Rush has waived whatever privilege might attach to the recording, because he has played a significant part of the recording to three people and described the recording in detail to two other persons — Jane's Doe's attorney Brad Edwards and private investigator Michael Fisten. Accordingly, any privilege has now been obviously waived. Second, even if the material could somehow be viewed as being protected by a journalist's privilege, the privilege would be only a qualified one. As the Daily News admits in its pleading (and as repeated disclosures to third parties make clear), the tape recording does not involve a discussion between Rush and a confidential source, but rather a discussion between Rush and a named source: defendant Jeffrey Epstein. The applicable test for obtaining nonconfidential materials not involving a confidential source has been set forth by the Second Circuit as follows: 'Where a civil litigant seeks nonconfidential materials from a nonparty press entity, the litigant is entitled to the requested discovery notwithstanding a valid assertion of the journalists' privilege if he can show that the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources: Gonzales v. National Broadcasting Co., Inc., 194 F.3d 29, 36 (2nd Cir. 1999). Jane Doe easily meets this test, because she can show the materials are not simply "likely" relevant — but are in fact highly relevant and critical to the maintenance of her claims. Indeed, in view of 2 EFTA00596648 Epstein's invocations of the Fifth Amendment — both during past discovery and the promised invocation during the upcoming trial — the tape recording is Jane Doe's only opportunity to place Epstein's own words before the jury. Moreover, the record is a uniquely important piece of evidence, because no other recording of Epstein discussing the sexual abuse exists. Jane Doe can thus easily overcome any claim of privilege by the Daily News. The Daily News asks for an in camera review of the recording. Jane Doe concurs in that request, as the Court can then easily confirm both that the contents of the recording have already been disclosed and that the contents are highly material and relevant to Jane Doe's case. Jane Doe also asks for a brief evidentiary hearing to the extent that the Daily News is relying on disputed assertions by George Rush about the limited nature of his disclosures. FACTUAL AND PROCEDURAL BACKGROUND From February 2003 through June 2005, Jane Doe (then a minor girl) was repeatedly sexually abused by Jeffrey Epstein behind the walls of his gated mansion in Palm Beach, Florida. The acts of abuse include digital vaginal penetration and Epstein's use of a vibrator on then minor Jane Doe. Epstein is a billionaire, and used his power and wealth to intimidate Jane Doe into not reporting what happened. See Jane Doe v. Epstein, No. 9:08-cv-80893-Marra (S.D. Fla. 2008). After state and federal investigators learned of Epstein's sexual abuse of Jane Doe and approximately thirty other under-age girls, Epstein hired a battery of attorneys who negotiated a plea bargain for his criminal charges. Under the plea agreement, 3 EFTA00596649  Epstein pled guilty to two state criminal charges related to procuring a minor for prostitution and soliciting prostitution. These two charges to which he pled pertained to girls other than Jane Doe. Epstein also entered into a "non-prosecution agreement" (NPA), under which the federal government agreed not to prosecute him for any other sex offenses. As part of the NPA, Epstein agreed to make restitution to any of the victims who agreed to proceed solely under the federal statute creating a cause of action for child sexual abuse, 18 U.S.C. § 2255. Edwards Aff't at 1. On August 13, 2008, Jane Doe filed a civil suit against Epstein in the U.S. District Court for the Southern District of Florida. Her suit alleged both federal and state law claims for sexual abuse, including claims seeking punitive damages. Because she is not proceeding solely under § 2255 (which limits damages to $150,000 per act of abuse), the terms of the NPA state that Epstein does not admit any liability: Except as to those individuals who elect to proceed exclusively under 18 U.S.C. § 2255 . . . neither Epstein's signature on this agreement, nor its terms, nor any resulting waivers or settlements by Epstein are to be construed as admissions or evidence of civil or criminal liability or a waiver of any jurisdictional or other defense as to any person . . NPA, & 8, Exhibit C to Carroll Declaration. Epstein filed an answer to Jane Doe's complaint, invoking his Fifth Amendment privilege and arguing that this invocation serves as the equivalent of a denial of the claims. Jane Doe has also been deposed by Epstein's battery of attorneys, who have propounded numerous questions suggesting that she is fabricating her allegations that Epstein repeatedly sexually abused her.2 Jane Doe's attorneys have diligently 2 Based on what he claims are inadequacies in Jane Doe's answers, Epstein's has filed a motion for summary judgment on Jane Doe's federal claims that is now fully briefed and currently pending before the district court. See Epstein's Reply to Jane Doe's Response in 4 EFTA00596650 attempted to find evidence supporting her allegations, including taking the depositions of the co-conspirators (household staff and others) who helped Epstein secure minor girls to abuse. All of these individuals have invoked their Fifth Amendment right and thus have elected not to provide answers. Epstein has also been repeatedly deposed, not only by an attorney for Jane Doe but by many other attomeys for other victims as well. Epstein, however, has taken the Fifth regarding all substantive questions propounded to him, including in particular questions regarding whether he abused Jane Doe. Edwards Afft at 1-2. 3 Epstein has also taken the Fifth (and had his invocations sustained) regarding all substantive interrogatories, requests for admission, and requests for production regarding the sexual abuse of Jane Doe. Id. While discovery efforts to get information from Epstein have been unavailing, in the fall of 2009, Epstein did speak to Daily News reporter George Rush "off-the-record" about the civil suits brought against him. Rush made a 22-minute recording of their conversation. Rush Afft at 1-2. Several days after Rush talked to Epstein, Rush played the beginning of the tape recording for three persons not involved in any Daily News reporting effort: a filmmaker, a social activist, and an attorney who had been following the case. Id. Shortly after that meeting, one of the participants went to an investigator for Jane Doe — Michael Fisten -- and said, "My god, you've [got to] get this tape. [Epstein] talks about the girls." Fisten Afft at 3.4 Opposition to Epstein's Motion for Summary Judgment, No 9:08-cv-80893 (S.D. Fla. Apr. 22, 2010) (dkt. #148). 3 The affidavit of Bradley James Edwards is attached to this memorandum as Exhibit A. The affidavit of Michael Fisten is attached to this memorandum as Exhibit B. 5 EFTA00596651  On October 22, 2009, Fisten called Rush to get the tape. Rush had no hesitancy in telling him in detail about the contents of the recorded call. Rush told Fisten that Epstein had said a number of interesting things. Epstein claimed he was being targeted for the civil suits because he had made good and become wealthy. Epstein stated had he had done nothing wrong and had gone to jail for no reason. If the same thing had happened in New York that had happened in Florida, Epstein protested, he would have received only a $200 fine. He further said that Jane Doe's attorney, Brad Edwards, was causing all his problems and that one of Edwards clients, L.M., came to him as a prostitute and drug addict. Epstein also said that all the girls suing him were only trying to get a meal ticket and that the only thing he might have done wrong was maybe cross a line a little too closely. Fisten was not told that his discussion was confidential in any way. Fisten asked for a copy of the tape, and Rush said he had no problem but had to run it by "legal.' He called back later that day to say that 'legal" would not let him tum over the tape. Fisten Afft at 2. Jane Doe's attorney, Brad Edwards, was also contacted by Rush. Rush again disclosed the contents of the tape, describing the general tenor of the entire Epstein interview for Edwards. Rush also stated that Epstein had admitted that he may have come "too close to the line" but that he should not have been punished as severely as he was. Epstein said on tape that his conduct was at most worthy of a $100 fine. Epstein also flippantly suggested that the allegations filed against him in another case in federal court in Florida (involving repeated sexual abuse of a 15-year-old girl by Epstein and his friends) had been dismissed as meritless. Edwards Afft at 2-3. 6 EFTA00596652  Ultimately Jane Doe filed an appropriate subpoena to obtain a copy of the tape. Counsel for the Daily News then contacted counsel for Jane Doe an attempt to resolve the matter.5 While the attempt was unsuccessful, counsel for the Daily News conceded that Rush's disclosures were viewed with disfavor by his employer. Edwards Afft at 4. On April 7, 2010, the Daily News filed a motion to quash Jane Doe's subpoena. Among the supporting exhibits was an affidavit from Rush, in which he admitted playing part of the tape recording of Epstein to three people. He further admitted speaking to Brad Edwards about the tape, but characterized the discussion as merely disclosing "Epstein"s overall stance and repeat[ing] to [Edwards] one sentence from the interview . . . ." Rush Afft at 3. Rush swore in his affidavit that 1 have not revealed any part of the contents of the Epstein interview to anyone other than the individuals I have described here, except for [legal counsel] . ." Id. Counsel for Jane Doe then contacted counsel for the Daily News and asked whether Rush was taking the position that he had not spoken to any investigators about the Epstein interview. Counsel for the Daily News later responded that Rush now remembered speaking to Mike Fisten and that he "shared a very limited amount of information about the Epstein interview, including on a subject that came up during it that had no relation whatever to the Jane Doe civil cases against Mr. Epstein." E-Mail 5 It is not standard practice for undersigned counsel to discuss communications between counsel in legal pleadings. However, because the Daily News has first done so in its pleadings, see Daily News Memo at 6 (citing Declaration of Anne Carroll at 2 (recounting discussions between Daily News' attorney Carroll and Jane Doe's attorney Edwards)), Jane Doe reluctantly believes she must respond by including all of the communications pertinent to understanding counsel's communications. See Fed. R. Evid. 106 (rule of completeness). The communications between counsel are relevant in their own right, as they provide the motivation for Rush to submit the incomplete and inaccurate affidavit he has submitted in this case given the pressure that is apparently being placed on him by his employer to minimize the extent of his previous disclosures. 7 EFTA00596653 from Anne Carroll to Paul Cassell (4/22/2010).6 Counsel for the Daily News, however, indicated that it would not be possible for Rush to correct his inaccurate affidavit until several days later — i.e., until after Jane Doe had filed her pleading and affidavits disclosing what knowledge she had about Rush's disclosures. Id. Counsel for the Daily News indicated that Rush would be filing a new affidavit correcting the false information in his earlier affidavit.' ARGUMENT I. THE DAILY NEWS HAS WAIVED ANY PRIVILEGE THAT MIGHT OTHERWISE ATTACH TO THE TAPE RECORDING OF JEFFREY EPSTEIN BY PLAYING THE TAPE TO THREE PEOPLE AND DESCRIBING ITS CONTENTS IN DETAIL TO (AT LEAST) TWO MORE. A. Like Other Privileges, a Journalist's Privilege Can Be Waived. The Daily News attempts to frame the issue as one regarding privileged communications protected against compelled disclosure. Of course, as with other privileges, any journalist's privilege can disappear if the joumalist himself chooses to disclose the communication. As the Second Circuit has explained in the context of the more robust attorney-client privilege, "We deem it clear that subsequent disclosure to a third party by the party of a communication with his attomey eliminates whatever privilege the communication may have originally possessed, whether because disclosure is viewed as an indication that confidentiality is no longer intended or as a waiver of the privilege." In re Horowitz, 482 F.2d 72, 81 (2n6 Cir. 1973) (citing 6 This e-mail is attached as Exhibit C to this memorandum. Counsel for the Daily News had no objection to its use as part of Jane Doe's pleading. The e-mail also admits that Rush's date for the interview is inaccurate and that Rush may have disclosed additional information to Brad Edwards. 7 Counsel for Jane Doe has requested that this new affidavit fully reveal all disclosures of the Epstein recording made by Rush, including any disclosures that he made of any part of the contents of the tape recording to the three people for whom he played a portion of the tape. 8 EFTA00596654 MCCORMACK, EVIDENCE § 93, at 197 (Cleary ed. 1972) and cases cited therein and 8 WIGMORE, EVIDENCE § 2311, at 599 (McNaughton rev. 1961)); see also United States v. Premises Known as 281 Syosset Woodbury Road, 71 F.3d 1067, 1072 (2d Cir. 1995) ("fflike other testimonial privileges protecting confidences, the confidential marital communications privilege may be waived . . . ." (internal citations omitted)). Thus, a person cannot invoke a "privilege as to communications whose confidentiality he has already compromised for his own benefit." In re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993) (internal quotation omitted). A clear illustration of this general principle of waiver in the context of a journalist's privilege comes from New York's shield law, which the Second Circuit has described as "more journalist-protective" than the common law privilege recognized in federal court. In re Fitch, Inc., 330 F.3d 104, 109 (2d Cir. 2003).8 While the shield law provides certain protections for journalists, it also provides directly that the protection can be waived if information is disclosed to third parties: (g) Notwithstanding the provisions of this section, a person entitled to claim the exemption provided under subdivision (b) or (c) of this section waives such exemption if such person voluntarily discloses or consents to disclosure of the specific information sought to be disclosed to any person not otherwise entitled to claim the exemptions provided by this section. N.Y. Civil Rights Law § 79-h(g) (McKinney 2010) (emphases added). Rather than cite Second Circuit law or the illustrative New York statute, the Daily News relies upon out-of-jurisdiction cases that it describes as standing for some sort of narrow construction of waiver law. Daily News Memo. at 13. In fact, these cases stand for no such thing, but rather different propositions -- such as the fact that broadcasting a 8 The Daily News apparently takes the position that the New York shield law and the federal common law journalist privilege are "identical." Daily News Memo. at 10. 9 EFTA00596655  small part of a document does not waive protection of all parts (Altemose Constr. Col. v. Buidling & Constr. Trades Council, 443 F. Supp. 489 (E.D. Pa. 1977), or that identifying a source as a "whistle blower does not waive the right to refuse to disclose the source's name (Flores v. Cooper Tire and Rubber Co., 178 P.3d 1176, 1183 (Ariz. App. 2008), or that state law can create a demanding rule against a finding a waiver for journalists (Ulrich v. Coast Dental Services, Inc., 739 So.21d 142, 144 (Fla. App. 1999) (creating such a rule under Florida law)).9 These off-point authorities do not constitute any reason for deviating from the clear law in this Circuit that a person cannot claim a "privilege as to communications whose confidentiality he has already compromised for his own benefit." In re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993) (intemal quotation omitted). B. The Daily News Has Waived My Privilege in the Tape Recording by Playing It for Three People and Describing It in Detail to Others. The Daily News has plainly waived any privilege that might attach to the recording by revealing what the recording says to a number of persons. In particular, George Rush has waived any privilege by: • Playing "approximately three to four minutes" of the beginning of the tape to three people who are not professional journalists (Rush Afft at 2); • Agreeing to paraphrase the Epstein interview to investigator Michael Fisten (Fisten Aff't at 2); • Telling Fisten that Epstein began the recorded interview by describing how he came from Brooklyn and became wealthy (id.); 9 Florida law is thus different than the law in the Second Circuit in general and in New York in particular. See N.Y. Civil Rights Law § 79-h(g) (McKinney 2010) (journalist's privilege waived by "disclosure of the specific information sought to be disclosed to any person" not a journalist); In re Fitch, Inc., 330 F.3d 104, 109 (2d Cir. 2003) (New York law "more protective" of journalists than federal privilege). 10 EFTA00596656  • Telling Fisten that Epstein said the people do not like it when people make good and that was one reason he (Epstein) was being targeted by civil suits filed by young girls in Florida (i.e., Jane Doe) (id.); • Telling Fisten that Epstein said that he (Epstein) had done nothing wrong (id.); • Telling Fisten that Epstein said that he (Epstein) had gone to jail in Florida for soliciting prostitution for no reason (id.); • Telling Fisten that Epstein said that if the same thing (i.e., sexual abuse of minor girls) had happened in New York, he (Epstein) would have received only a $200 fine (id.); • Telling Fisten that Epstein had made very negative comments about Jane Doe's attorney Brad Edwards and that Edwards was the one causing all of Epstein's problems (i.e., the civil suits brought by Jane Doe and other girls) (id.); • Telling Fisten that Epstein said that L.M., one of Edwards' clients who has sued Epstein for sexual abuse as a minor, came to him as a prostitute and a drug user (i.e., came to Epstein for sex, rather than Epstein pursuing her) (id.);1° • Telling Fisten that Epstein said that all the girls suing him (e.g., Jane Doe) are only trying to get a meal ticket (id.); • Telling Fisten that Epstein said that the only thing he might have done wrong was to maybe cross the line a little too closely (id.); • Telling Fisten that Epstein said he was very upset that Edwards had subpoenaed Ghisline Maxwell, referring to her as a good person that did nothing wrong (i.e., had done nothing wrong even though she helped procure young girls to satisfy Epstein's sexual desires) (id.); 1 • Calling Brad Edwards, Jane Doe's attorney, to tell him about the recorded Epstein interview (Edwards Afft at 2); • Telling Brad Edwards more than description of the tape and in fact describing the general tenor of the entire interview (id. at 3); 70 L.M. is expected to testify at the Jane Doe trial as a witness. Because she was a minor when sexually abused, she is referred to by initials here, as she has been in the Florida state case she filed against Epstein that parallels Jane Doe's. See L.M. v. Epstein, No. 50 2008 CA 028051 (Cir. Ct. 15th Jud. Cir. Palm Beach Cty., Fla 2008). 11 Maxwell is an anticipated witness in the Jane Doe trial. 11 EFTA00596657  • Telling Brad Edwards that Epstein said in the interview that he (Epstein) may have come "too close to the line" but that he should not have been punished as severely as he was (id. at 2); • Telling Brad Edwards that Epstein spoke about L.M. and made derogatory remarks about her (id.); and 4. Telling Brad Edwards that Epstein spoke directly about another civil case that was filed against him, Jane Doe 102 v. Epstein,12 which involved an allegation that Epstein had repeatedly sexually abused a 15-year-old girl, forced her to have sex with his friends, and flew her on his private plane nationally and internationally for the purposes of sexually molesting and abusing her, and that Epstein had flippantly said that the case was dismissed, indicating that the allegations were ridiculous and untrue (id.). As the foregoing bullet points make clear, the Daily News (through its reporter) has not only played a significant portion of the tape recording to third parties, it has described the sum and substance of the entire recording to two persons who are in no sense Daily News employees (or even journalists). This is an obvious waiver of any privilege. Nor should the Daily News be heard to quibble that it has somehow "only waived confidentiality with respect to the 17 bullet points above. As should be clear from the sheer number of bullet points, Rush has described to Fisten and Edwards (and perhaps others) the gist of the entire tape. Because Rush has purported to describe the entire tape, any privilege is plainly waived for the entire recording. See United States v. Jacobs, 117 F.3d 82, 90 (2d Cir. 1997) (finding that waiver of attorney-client privilege extended to the entirety of two letters written by Jacobs' attorney, "the gist of which Jacobs purported to convey while" speaking to third parties). Moreover, given that the tape is apparently about 22 minutes long, the numerous points related above must 12 See Doe No. 102 v. Epstein, No. 9:09-CV-80656-KAM (S. D. Fla. 2009). 12 EFTA00596658  constitute the bulk of the recording.13 And, presumably, later portions of the conversation must link back to earlier portions of the conversation — making it difficult to segregate any particular sentence in the interview. Cf. Fed. R. Evid. 106 (rule completeness requires introducing one of a statement when other parts of the statement ought to in fairness be considered contemporaneously). Accordingly, the Court need not consider the details of how a journalist privilege might operate on these facts. Any privilege that might exist has simply evaporated and been waived. II. ANY QUALIFIED JOURANLIST'S PRIVILEGE OF THE DAILY NEWS IS OVERCOME BY JANE DOE'S CLEAR AND COMPELLING NEED TO OBTAIN JEFFREY EPSTEIN'S OWN WORDS ABOUT HIS SEXUAL ABUSE AND LACK OF REMORSE. If the Court is inclined for any reason to consider the application of the privilege in this case, it would quickly find that the Daily News cannot sustain its burden of showing a good reason for defeating Jane Doe's search for the truth. This case does not involve an issue relating to a confidential source. Accordingly, the Daily News possesses (at most) a qualified privilege, which can be overcome if Jane Doe "can show that the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources." Gonzales v. National Broadcasting Co., Inc., 194 F.3d 29, 36 (2nd Cir. 1999). She can easily make such a showing here, as the tape recording is unique evidence of highly probative statements from Epstein that she cannot obtain from any other source. A. To Defeat Jane Doe's Search for Truth, The Daily News Must Bear the Burden of Proving It Is Entitled to Invoke Privilege. t3 Of course, if the Court wanted to make this determination more precisely, it could review the recording in camera — as Jane Doe urges in Part Ill, infra. 13 EFTA00596659  The Daily News has filed the pending motion to quash a valid subpoena served by Jane Doe. The Second Circuit has held that it is 'Well established that the party invoking a privilege bears the burden of establishing its applicability to the case at hand." In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003). The party asserting the privilege bears the burden of proving each essential element. See, e.g., United States v. International Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir.1997) (holding that party invoking attorney-client privilege bears the burden of establishing "all of its elements"); United States v. Construction Prods. Research, Inc., 73 F.3d 464, 473-74 (2d Cir.1996) (rejecting attorney-client and work product privilege claims where party failed to establish the essential elements). The burden that the Daily News faces "is a heavy one, because privileges are neither 'lightly created nor expansively construed.'" In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003) (citing United States v. Nixon, 418 U.S. 683, 710 (1974)). Perhaps given the "heavy" burden it faces, the Daily News at various points in its brief seems to be arguing that it has some sort of First Amendment interest in not honoring the subpoena. To the extent that it is making such a claim, it has been rejected by the United States Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 690 (1972) (We are asked to create another [testimonial privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do."). See also New York Times Co. v. Gonzales, 459 F.3d 160, 173-74 (2d Cir. 2006) (discussing Branzburg and First Amendment claims); In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 970 (D.C. Cir. 2005) (same). 14 EFTA00596660  The only privilege that the Daily News can plausibly assert is a common law privilege that would be recognized in federal court under Federal Rule of Evidence 501. Such "privileges are recognized 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" In re Grand Jury Subpoenas Dated March 19, 2002 and August Z 2002, 318 F.3d 379, 384 (2d Cir. 2003) (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)); accord Jaffee v. Redmond, 518 U.S. 1, 9 (1996). As the Supreme Court has explained, 'When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule." Jaffee, 518 U.S. at 9. B. Because the Interview with Jeffrey Epstein Does Not Involve a Confidential Source, The Daily News Has (At Most) a Qualified Privilege in the Recording that Jane Doe Can Overcome By Showing that the Tape is "of Likely Relevance to a Significant Issue in the Case, and Is Not Reasonably Obtainable from Other Available Sources." The Daily News begins by citing the 28-year-old Petroleum Products case which (the Daily News contends) shows that the law in the Second Circuit is "clear" that a privilege exists requiring anyone subpoenaing a media entity to make a specific showing of relevance of the materials at issue and their unavailable from other sources. Daily News Memo. at 8 (citing In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982) (per curiam)). But the Daily News does not discuss more recent precedent from the Second Circuit, which demonstrate the unique circumstances surrounding that 15 EFTA00596661 particular case. As the Circuit explained in Gonzales v. National Broadcasting Co., Inc., 194 F.3d 29 (2d Cir. 1999): "The stringent test we enunciated in Petroleum Products for overcoming the qualified privilege was designed 'to protect . . . the confidentiality of journalists' sources.'" [quoting Petroleum Products] 680 F.2d at 7. We believe that when protection of confidentiality is not at stake, the privilege should be more easily overcome." Gonzales, 194 F.3d at 36. The Circuit went on to enunciate a less demanding standard that applied to cases like that one, where a civil plaintiff was seeking unbroadcast video footage of a traffic stop in a civil rights action: "Where a civil litigant seeks nonconfidential materials from a nonparty press entity, the litigant is entitled to the requested discovery notwithstanding a valid assertion of the journalists' privilege if he can show that the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources." Id. at 36. This is the test that has been used by this Court in recent cases. See, e.g., United States v. Treacy, 603 F.Supp.2d 670, 672 (S.D.N.Y. 2009); Schiller v. City of New York, 245 F.R.D. 112, 119-20 (S.D.N.Y. 2007). The Daily News makes no serious effort to show that the Petroleum Products test applies to its motion to quash. Obviously, this case does not involve 'the confidentiality of journalists' sources," as the Daily News admits that the 22-minute tape recording was a discussion between its reporter George Rush and defendant Jeffrey Epstein. Daily News Memo. at 4. Accordingly, the Petroleum Products test is inapplicable and the Court must apply the "more easily overcome" qualified privilege discussed in Gonzales. The Daily News attempts to obtain some kind of confidentiality through the affidavit of George Rush that "Epstein said at the beginning of the conversation that it 16 EFTA00596662  was off-the-record and [I] agreed. I understood that to mean that the contents of the call, though not the fact of it, were to be treated as confidential and not to be published." Rush Afft at 2 (emphasis added). Of course, if the understanding with Epstein was simply that the material was not to be published, that understanding will not be violated by if the Daily News complies with a lawful subpoena to produce the tape to Jane Doe; that involves no publication, but simply honoring the duties that all citizens have to produce evidence when under court order. To the extent Rush is now claiming some sort of broader confidentiality of the materials, this Court should not give any weight to Rush's conclusory claim that he "understood" that Epstein's call was somehow "confidential." The 'burden is on a party claiming the protection of a privilege to establish those facts that are essential elements of the privileged relationship, a burden not discharged by mere conclusory or ipse dixit assertions." In re Grand July Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 225 (2d Cir. 1984). Rush's own actions plainly belie any such understanding. Several days after the Epstein interview, Rush felt entirely free to share the significant parts of the recording for his own purposes. He even played the first three or four minutes of the tape to three individuals not involved with any Daily News reporting effort, and presumably described the rest of the recording to the participants at the meeting.14 And he further shared "the general tenor of the entire interview" with Jane Doe's attorney Brad Edwards (Edwards Afft at 2) and told Jane Doe's investigator Mike Fisten In detail about the contents of the tape recorded call' (Fisten Afft at 2). 74 Rush's (inaccurate) affidavit does not reveal whether he disclosed any other parts of the tape to the three persons at his meeting beyond the three or four minutes he played. Presumably he will address this subject in his revised affidavit that he will apparently be filing shortly. 17 EFTA00596663  Even if the Court concludes that all these disclosures do not constitute a waiver of the privilege (as Jane Doe argued above), it clearly places the tape recording outside the realm of confidential material to which some sort of heightened protection might be given. Indeed, this Court has specifically ruled that, to invoke a journalist's privilege for confidential materials, a "mutuality" of any agreement of confidentiality must be shown. PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32, 36 (S.D.N.Y. 1993). As this Court explained in the context of confidential sources, "the genesis of the [journalist's] privilege lies only in the anonymity claimed and the confidence given." Id. (quoting Andrews v. Andreoli, 400 N.Y.S.2d 442, 448 (Sup. Ct. 1977)) (emphasis added). Here, there is simply no "mutuality" of confidentiality — no "confidence given" by Rush. Therefore, even crediting the disputed and inaccurate Rush affidavit, the Daily News cannot carry its "burden of proffering at least preponderant evidence of the mutuality of the understanding . . . of confidentiality." PPM America, 152 F.R.D. at 36.75 Therefore, any protection that might be given to confidential materials is not involved in this case. C. The Recording of the Defendant is Uniquely Valuable Evidence of His Sexual Abuse of Jane Doe and other Victims and of his Lack of Remorse. The Second Circuit has been clear that "where the protection of confidential sources is not involved, the nature of the press interest protected by the [journalist's] privilege is narrower." Gonzalez, 194 F.3d at 36. To obtain such information, Jane Doe need only show that the materials sought "are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources." Id. 75Epstein has been served with the pleadings in this case. He has not asserted any claim of confidentiality in the recording. 18 EFTA00596664  The Daily News, however, argues that the more demanding Petroleum Products standard applies, under which Jane Doe would need to show "that the information is: (1) highly material and relevant, (2) necessary or critical to the maintenance of the claim, and (3) not obtainable from other available sources." Petroleum Products, 680 F.2d at 7. Perhaps the simplest way for Jane Doe to proceed, then, is show that she can easily satisfy this more demanding standard. She easily can meet each of these prongs — and thus, a fortiorari, meets the applicable standard from Gonzalez. 1. The Epstein Interview is Highly Material and Relevant to Jane Doe's Civil Suit for Sexual Abuse Seeking Compensatory and Punitive Damages and Necessary and Critical to the Maintenance of Her Claim. The Daily News suggests that Jane Doe is seeking the Epstein recording because she has "a hope and a hunch that there might be something in the recording . . . that will be useful in her case." Daily News Memo. at 10. Nothing could be further from the truth. Jane Doe wants the recording for very specific reasons to support her claim that Epstein repeatedly sexually abused her (and other girls) and that she is entitled to compensatory and punitive damages of at least $50 million. A bit of context may be useful. As explained at greater length in the affidavit of Brad Edwards (Jane Doe's lead attorney in the civil case against Epstein), Jane Doe's lawsuit against Epstein (along with those of other girls) has become highly contentious. See generally Edwards Afft at 1-2; Jane Doe v. Jeffrey Epstein, Case No. 9:08-cv- 80893-MARRA (S.D. Fla.) (case consolidated with Doe v. Epstein, 9:08-cv-80119- MARRA for discovery purposes) (more than 500 docket entries). Because Jane Doe 19 EFTA00596665 alleges that Epstein repeatedly sexually abused her behind the walls of his private mansion in Palm Beach, Florida, the case at some level is one of "he said, she said." With regard to the "he said' half of this equation, Epstein has (thus far) been able to essentially contest the substance of Jane's Does claims of sexual molestation. Epstein has denied Jane Doe's allegation, by operation of law, through his assertion of Fifth Amendment privileges as to all claims against him. Edwards Afft at 1. Moreover, Epstein has refused to provide any substantive discovery to Jane Doe. With regard to the "she said" half of the equation, Epstein's battery of attorneys have taken Jane Doe's deposition, in which they have asked numerous questions suggesting that she has fabricated her claims against him. Id. Indeed, the Daily News concedes that the questioning of Jane Doe has been (in its words) "savage." Daily News Memo. at 11 (referring to questioning of Jane Doe "by [Epstein's] defense team . . . so savage it made local headlines"). And Jane Doe, of course, has no other witnesses she can call to tell what Epstein did to her behind closed doors in his mansion — no direct eyewitnesses to prove that what she is saying is the truth. Id. Fortunately, through the recording of Epstein, Jane Doe now has a way to provide to the jury a damning admission from Epstein. As George Rush explained to Jane Doe's investigator Michael Fisten, Epstein says on the tape that "the only thing he might have done wrong was to maybe . . . cross the line a little too closely." Fisten Afft at 2; see also Edward Atli at 2 (Epstein says he may have come "too close to the line"). Understood in context, this is a highly damning admission that Epstein may have 20 EFTA00596666 crossed "the line" between having consensual sexual relations with adult women and having non-consensual sexual relations with minor girls — girls like Jane Doe.t6 Epstein also said that L.M., a minor girl, came to him as a prostitute and a drug addict. This is also a highly useful admission, as it will help to establish that Epstein has a sexual interest in minor girls — minor girls like Jane Doe. Perhaps more important, it is direct proof that Epstein knows LM, a fact that he has denied in the past. Not only is the tape recording unparalleled evidence for Jane Doe on liability, but it is also compelling evidence in her case for punitive damages. One of the key issues in the punitive damages case will be the extent to which Epstein has shown remorse for his sexual abuse of Jane Doe - or whether he continues to believe that he did nothing wrong. Of course, punitive damages are "'quasi-criminal,' [and] operate as 'private fines' intended to punish the defendant and to deter future wrongdoing." Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). If Epstein is not remorseful for having abused Jane Doe, the jury will need to impose a substantial punitive damage award to deter future abuse of other young girls that he might prey upon. Lack of remorse "will be a central issue in the punitive damages case against Epstein at trial." Edwards Afft at 2.17 And, in Florida, any punitive damages award that 16 In reply, the Daily News may attempt to quibble that Epstein only admitted that he "may" have crossed the line between having consensual sex with an adult and raping a child. Of course, the jury would be entitled to draw the only logical conclusion that Epstein's qualification is as close an admission as one is likely to get in a sex offense case of this nature. 17 In assessing the importance of evidence, courts have been reluctant to substitute their judgment for that of the trial lawyer most closely involved in presenting a case to a jury, particularly where the subject relates to a tactical judgment about the usefulness of the evidence. See, e.g., Uni