EFTA01070407.pdf

Document 54 Entered on FLSD Docket 04/02/2009 Page 1 of 18 Case 9:08-cv-80811-KAM UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CIV-80811-MARRAMOHNSON C.M. A., Plaintiff, v. EPSTEIN and'''. III Defendants, C.M.A. TO RESPOND TO DEFENDANT EPSTEIN'S MOTION TO COMPEL PLAINTIFF ER DEFENDANTS DEFENDANT'S FIRST REQUEST TO PRODUCE AND ANSW OVER RULE OBJE CTIONS. AND FOR FIRST SET OF INTERROGATORIES, AND TO EXPE NSES AN AWARD OF DEFENDAN TS REAS ONAB LE undersigned attorneys, Defendant, JEFFREY EPSTEIN, by and through his . to respond to Defendant's moves this Court for an order compelling Plaintiff, C.M.A Set of Interrogatories, and to First Request To Produce and to answer Defendant's First To Defendant's First Request overrule her objections asserted in Plaintiffs Response Notice of Serving Answers To To Produce, dated February 13, 2009, and in Plaintiffs further seeks an award of his • Interrogatories, dated February 18, 2009. Defendant the making of this motion. reasonable expenses, Including expenses, associated with 26.1 H (S.D. Fla. 2008). In Rule 37, Fed.R.Civ.P. (2008); Local Gen. Rules 7.1 and support of his motion, Defendant states: Defendants counsel Prior to the filing of this motion, on April 1, 2009, good faith effort to resolve the communicated by telephone with Plaintiffs counsel In a items which remain at discovery Issues herein. This motion addresses those discovery EFTA01070407 Case 9:08-cv-80811-ICAM Document 54 Entered on FLSD Docket 04/02/2009 Page 2 of 18 C.M.A. v. Epstein, et al. Page 2 issue. Also, rather than file 2 separate motions to compel, Defendant filed one addressing the production requests and interrogatories because the discovery issues overlap. Motion To Compel Responses to Production Requests Nos.1, 2, 4. 5, and 19, and Answers to Interrogatories Nos. 2, 18. and 23. Production Request No. 1 1. Individual and/or Joint income tax returns and supporting documentation including W-2 and 1099 forms for 2002-2007 and, as well as all records or documentation relative to the Plaintiffs earnings for the current year. Response: Objection. Irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible information. Legal Argument Supporting Entitlement to Discovery Plaintiffs tax returns and supporting documentation are relevant to Plaintiffs damages claims and, thus, discoverable. Plaintiffs complaint alleges in part that "beginning in approximately late May or early June of 2002, and continuing until approximately August of 2003, the Defendant coerced and enticed the Impressionable, vulnerable, and economically deprived then minor Plaintiff to commit various acts of sexual misconduct." f t Am. Complaint, ¶13. (Plaintiff also refused to answer interrogatory no. 2 which sought her employment history for the past ten years asserting the same general objection). Such information is both relevant and reasonably calculated to lead to the discovery of admissible evidence. It is well settled that relevant Information Is discoverable, even if not admissible at trial, so long as the discovery is reasonably calculated to lead to the discovery of admissible evidence. Rule 28(b)(1), Fed.R.Civ.P.; EFTA01070408 Case 9:08-cv-130811-1<AM Document 54 Entered on FLSD Docket 04/02/2009 Page 3 of 18 C.M.A. v. Epstein, et al. Page 3 . 685 (S.D. Fla. 2007). Donahav v. Palm Beach Tours & trans.. Inc., 242 F.R.D 26, Fed.R.Civ.P., pursuant to Discoverability of such Information Is governed by Rule at 686, and cases cited therein. which the scope of discovery Is broad. Donahav, supra, ged, which Is relevant to "Parties may obtain discovery regarding any matter, not privile ? Id. the claims or defense of any party involved in the pending action documentation, for the Plaintiff's tax returns, along with the requested supporting t earnings, are relevant to six year period, and documents relevant to her curren Such information would show Plaintiff's damagep claims detailed below herein. provide evidence as to how Plaintiff's employment and earning history, as well as e, during and after the alleged Plaintiff has been able to function in her daily life befor get out of bed each morning and incidents. Was she setf-sufficient? Was she able to ability to earn a living and be support herself? What type of Job did she holed? One's onent, but also an self-supporting has not only a financial comp emotional/psychologicamental component. 32 counts. Counts I C.M.A.'s First Amended Complaint attempts to allege U.S.C. §2255 — Civil Remedies for through XXX are purportedly brought pursuant to 18 ry," and Count XXXII. is entitled Personal Injuries; Count XXXI is entitled 'Sexual Batte Defendant, "Conspiracy to Commit Tortbus Assault only against seek Information about in her answers to interrogatory nos. 9 and 10, which C.M.A.'s damages claims, Plaintiff answered that: Complaint Is pending. ' Defendant's Motion To Dismiss directed to Plaintiffs First Amended EFTA01070409 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 4 of 18 C.M.A. v. Epstein, et al. Page 4 self-esteem. I began I have bi-polar disorder and manic depression. I lost my proble ms. Permanent cutting myself on my arms and legs and developed drug injuries are psychological. (lnterrog. No. 9). psychic trauma, I am claiming compensation for mental anguish, mental pain, ated by a jury who and loss of enjoyment of life. These damages will be evalu nt of at least the will provide their own methods of computation In an amou No. 10). statutory minimum established by 18 U.S.C.A. §2255. (Interrog. s, Plaintiff, alleges: In her 1st Amended Complaint, relevant to her damages claim physical Injury, C.M.A., has in the past suffered, and will in the future suffer, l anguish, al traum a, menta pain and suffering, emotional distress, psychologic ion of her of dignit y, invas humiliation, embarrassment, loss of self-esteem, loss medic al and incurr ed privacy and other damages ... . The then minor Plaintiff medic al and additi onal psychological expenses ... and will in the future suffer of incom e, a loss psychological expenses. The Plaintiff C.M.A. has suffered ity to enjoy of capac toss of the capacity to earn Income in the future, and a loss iff, C.M.A., will nent in natur e and the Plaint life. These injuries are perma continue to suffer these losses in the future. ), ¶¶25, 31, 37, 43, 49, 55, (1st Am. Complaint, Counts I - XXX (18 U.S.C. §2255 139, 145, 151, 157, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, al Batte ry), ¶199.) 163, 169, 175, 181, 187, 193; Count XXXI (Sexu "compensatory damages of at In each of her 'Wherefore" clauses, Plaintiff seeks , pursuant to which Plaintiff least the minimum provided by law." 18 U.S.C. §2255 of "actual damages." See fn. attempts to bring certain of her claims, allows for recovery 2 herein for applicable statutory text.2 documentation, will provide As discussed above, the tax returns, and supporting Information does not only go to direct evidence as to Plaintiffs claimed damages. Such 2 Any minor who is a victim of a violati on of section 2241(c), 2242, 2243, 2251, (a) and who suffers personal Injury 2251A, 2252, 2252A, 2280, 2421, 2422, or 2423 of this titleUnited States District Court and as a result of such violation may sue in any appropriate and the cost of the suit, including shall recover the actual damages such minor susta ins ding sentence shall be a reasonable attorney's fee. Any minor as described In the precevalue. ]Emphasis added.] deemed to have sustained damages of no less than $50,0 00 in EFTA01070410 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009 Page 5 of 18 C.M.A. v. Epstein, et S. Page 6 ity to earn income type compensatory or actual damages or loss of income/loss of capac type damages. In the damages, but also her emotional/psychological/mental health parties, Plaintiffs counsel telephone communication between counsel for the respective ing capacity type damages; indicated that Plaintiff was not seeking loss of income/earn withdrawal of such, damages (Defendant is not aware that there has been any formal relevant and discoverable claimed); notwithstanding, the information sought Is still The time period will allow based on the additional damages claimed by Plaintiff. prior to, during, and after the Defendant to compare how Plaintiff was doing In her life able to hold and her earnings alleged incident. Again, the type of jobs Plaintiff has been a financial component, but an and ability to support herself clearly have not only well. Accordingly, Plaintiffs emotional/psychological/mental health component as dant is entitled to the documents objection is required to be overruled, and Defen requested. Production Request No. 2 , psychologists, 2. All bills/expenses from any medical doctor, chiropractor members of the healing arts and psychiatrists, mental health counselors (Including any you incurred as a result of the related fields, i.e. drugs, prescriptions, etc.) you claim this lawsuit injuries which are or may be the subject matter of Response: receipt. Discovery Is ongoing. None in our possession. These will be provided upon Legal Argument Supporting Entitlement to Discovery sted, but has failed to Plaintiff makes no objection to the documents reque ly, the documents are relevant produce any documents responsive to this request. Clear injuries. In the April 1, 2009, and discoverable as they go to proof of Plaintiffs claimed EFTA01070411  Document 54 Entered on FLSD Docket 04/0212009. Page 6 of 18 Case 9:08-cv-80811-I<AM c.m.A. v. Epstein. et al. Page 6 that Plaintiff was still not in telephone communication Plaintiffs counsel Indicated possession of such documents. The First Request for Production was served on gatory no. 11, (Notice;of Serving Plaintiff on January 16, 2009. In her answer to interro and a counselor/therapist Answers, dated February 18, 2009, identifies a psychiatrist examination for the injuries for from whom she claims she is receiving "treatment or for copy C.M.A.'s answer to which [she] seeks damages° See Exhibit A hereto from the psychiatrist — she interrogatory no. 11. Regarding the date of treatment claims the treatment from the asserts "I would defer to the Doctor's records' She ing." Defendant is entitled to counselor/therapist has been "since high school" and "ongo has the ability to obtain the the documents sought and Plaintiff is in control of and incurred as result of her injuries requested medical bills and expenses she claims were diately produce the. requested claimed in this action. Plaintiff should be required to imme documents to Defendant. Production Request No. 4 sis submitted by 4. All reports, evaluations, recommendations and/or analy the subject matter of this any expert which relate to or cover the Incident which is allege were caused by the incident. lawsuit and/or any injuries, damages or losses you Response: sed are protected by the Any reports generated by any retained experts not yet disclo work product privilege. Notwithstanding same, none. Legal Argument Supporting Entitlement to Discovery one communication, Plaintiff, through counsel, in the April 1, 2009, teleph ents and stands by her indicated that she does not have any responsive docum objection. Rule 26 provides In relevant part — EFTA01070412  Document 54 Entered on FLSD Docket 04/02/2009 Page 7 of 18 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, et al. Page 7 2) Disclosure of Expert Testimony. Rule 26(a)(1), a party must (A) In General. In addition to the disclosures required by s it may use at trial to present disclose to the other parties the Identity of any witnes evidence under Federal Rule of Evidence 702, 703, or 705. or ordered by the court, this (B) Written Report. Unless otherwise stipulated --prepared and signed by the witness—if disclosure must be accompanied by a written report to provide expert testimony in the the witness is one retained or specially employed regula rly involve giving expert testimony. case or one whose duties as the party's employee The report must contain: s will express and the basis and (i) a complete statement of all opinions the witnes reasons for them; ss in forming them; (Ii) the data or other information considered by the witne support them; (iii) any exhibits that will be used to summarize or all publications authored In the (iv) the witness's qualifications, Including a list of previous 10 years; us four years, the witness (v) a list of all other cases in which, during the previo testified as an expert at trial or by deposition; and study and testimony in the (vi) a statement of the compensation to be paid for the case. these disclosures at the (C) Time to Disclose Expert Testimony. A party must make t a stipulation or a court order, the times and in the sequence that the court orders. Absen disclosures must be made: case to be ready for trial; or (i) at least 90 days before the date set for trial or for the evidence on the same (ii) if the evidence is intended solely to contradict or rebut 2)(8), within 30 days after the subject matter identified by another party under Rule 26(a)( other party's disclosure. (e) Supplementing Disclosures and Responses. Rule 26(a)--or who has (1) In General. A party who has made a disclosure under produ ction, or reque st for admission--must responded to an interrogatory, request for supplement or correct its disclosure or response: some material respect the (A) in a timely manner If the party learns that in and if the additional or corrective disclosure or response is incomplete or Incorrect, EFTA01070413  Document 54 Entered on FLSD Docket 04/02/2009 Page 8 of 18 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, of el. Page 8 to the other parties during the information has not otherwise been made known discovery process or in writing; or (B) as ordered by the court. be disclosed under Rule (2) Expert Witness. For an expert whose report must information included in both to 26(a)(2)(0), the party's duty to supplement extends t's deposition. Any additions or the report and to information given during the exper time the party's pretrial disclosures changes to this Information must be disclosed by the under Rule 26(a)(3) are due. iff be in possession of any Accordingly, Defendant requests that should Plaint analysis prepared by an expert such reports, evaluations, recommendations and/or by an expert expected to testify at expected to testify at trial or deposition, or to be used produced as required by Rule 26, trial or deposition, that such documents be Fed.R.Civ.P. quoted above. Production Request No. 5 cians, (including 5. All medical reports and/or records from doctors, physi couns elors) , hospi tals, drug or alcohol psychologists, psychiatrists, mental health to or examined you rende red treatm ent facilities or any other person or entity who has this lawsu it. ct matte r of for any reason after the incident(s) which is the subje Response: None in our possession. Discovery is ongoing. Legal Argument Supporting Entitlement to Discovery produce the requested Once again, Plaintiff should be required to immediately dant realleges and documents. In support of ordering immediate production, Defen To Discovery" to request no. 5 incorporates his "Legal Argument Supporting Entitlement above herein. EFTA01070414  Document 54 Entered on FLSD Docket 04/02/2009 Page 9 of 18 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, et al. Page 9 Interrogatory No. cell phone numbers, 2. List the names, business addresses, telephone and addre ss) and rates of pay dates of employment, Immediate supervisor (name and you have worked in the whom regarding ail employers, including self-employment, for receiv ed. Answer this e you have past 10 years; this includes listing all sources of incom question by year, I.e. 1998 - 2009. Answer. lated to lead to discovery of Objection. Irrelevant, immaterial and not reasonably calcu admissible evidence. j..egal Argument Supporting Entitlement to Discovery and Injuries Claimed by Such Information is clearly relevant to the damages In Plaintiff In this action. Plaintiffs complaint alleges in part that "beginning continuing until approximately approximately late May or early June of 2002, and the impressionable, vulnerable, and August of 2003, the Defendant coerced and enticed s acts of sexual misconduct." economically deprived then minor Plaintiff to commit variou Request no. 1 above herein). 1st Am. Complaint, ¶13. (See discussion of Production lated to lead to the Such information Is both relevant and reasonably calcu discovery of admissible evidence. It is well settled that relevant information is the discovery is reasonably discoverable, even if not admissible at trial, so long as Rule 26(b)(1), Fed.R.Civ.P.; calculated to lead to the discovery of admitsible evidence. F.R.D. 685 (S.D. Fla. 2007). Donahav v. Palm Beach Tours & trans., Inc., 242 26, Fed.R.C1v.P., pursuant to Discoverability of such information is governed by Rule , at 688, and cases cited therein. which the scope of discovery is broad. Donahav, supra ged, which is relevant to Parties may obtain discovery regarding any matter, not privile action." IA. the claims or defense of any party involved in the pending EFTA01070415 Case 9:08-cv-80811-KAM Document 54 Entered on FLSD Docket 04/02/2009. Page 10 of 18 CMA v. Epstein, et al. Page to and after the alleged Plaintiff's employment and earnings history prior to s. Such Information would not Incidents are relevant to her claimed damages and Injurie but also provide evidence as only evidence Plaintiff's employment and earning history, life before, during and after the to how Plaintiff has been able to function in her daily she able to get out of bed each alleged incidents. Was she self-sufficient? Was she hold? One's ability to earn a morning and support herself? What type of Job did ial component, but also an living and be self-supporting has not only a financ emotional/psychological/mental component. 32 counts. Counts I C.M.A.'s First Amended Complaint attempts to allege . §2255 — CMI Remedies for through XXX are purportedly brought pursuant to 18 U.S.C and Count XXXII is entitled Personal Injuries; Count XXXI is entitled °Sexual Battery," Defendant, =It "Conspiracy to Commit Tortious Assault only against seek information about In her answers to interrogatory nos. 9 and 10, which C.M.A.'s damages claims, Plaintiff answered that self-esteem. I began I have bi-polar disorder and manic depression. I lost my problems. Permanent cutting myself on my arms and legs and developed drug injuries are psychological. (interrog. No. 9). pain, psychic trauma, I am claiming compensation for mental anguish, mental be evalu ated by a jury who and loss of enjoyment of life. These damages will nt of at least the an amou will provide their own methods of computation In No. 10). (lnter rog. statutory minimum established by 18 U.S.C.A. §2255. s, Plaintiff alleges: ges claim In her 1st Amended Complaint, relevant to her dama , physical injury, C.M.A., has in the past suffered, and will in the future suffer l anguish, a, menta pain and suffering, emotional distress, psychological traum y, invasion of her humiliation, embarrassment, loss of self-esteem, loss of dignit tiff ed medical and privacy and other damages ... . The then minor Plain incurr medical and onal psychological expenses ... and will in the future suffer additi of income, a Plain tiff C.M.A . has suffer ed loss psychological expenses. The EFTA01070416  Document 54 Entered on FLSD Docket 04/02/2009 Page 11 of 18 Case 9:08-cv-80811-KAM C.MA v. Epstein, et al. Page 11 of capacity to enjoy loss of the capacity to earn income in the future, and a loss iff, C.M.A., will e and the Plaint life. These injuries are permanent in natur continue to suffer these losses in the future. 31, 37, 43, 49, 55, (1st Am. Complaint, Counts I - XXX (18 U.S.C. §2255), ¶¶25, 139, 145, 151, 157, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, ¶199.) 163, 169, 175, 181, 187, 193; Count XXXI (Sexual Battery), ensatory damages of at In each of her "Wherefore" clauses, Plaintiff seeks "comp , pursuant to which Plaintiff least the minimum provided by law." 18 U.S.C. §2255 of "actual damages." See fn. attempts to bring certain of her claims, allows for recovery 2 herein for applicable statutory text. history will provide direct As discussed above, C.M.A.'s employment and earnings ation does not Only go to evidence as to Plaintiffs claimed damages. Such inform of capacity to earn income type compensatory or actual damages or loss of income/loss tal health type damages. In the damages, but also her emotional/psychological/men ctive parties, Plaintiffs counsel telephone communication between counsel for the respe ing capacity type, damages; indicated that Plaintiff was not seeking loss of income/earn l withdrawal of such damages (Defendant Is not aware that there has been any forma still relevant and discoverable claimed); notwithstanding, the information sought is The time period will allow based on the additional damages claimed by Plaintiff. prior to, during, and after the Defendant to compare how Plaintiff was doing In her life able to hold and her earnings alleged Incident. Again, the type of Jobs Plaintiff has been financial component, but an and ability to support herself clearly have not only a well. Accordingly, Plaintiffs emotional/psychological/mental health component as EFTA01070417  Document 54 Entered on FLSD Docket 04/02/2009 Page 12 of 18 Case 9:08-cv-80811-I<AM C.MA. v. Epstein, et al. Page 12 entitled to the information sought objection is required to be overruled, and Defendant is in the Interrogatory. Interrogatory No. 18 • sses and phone numb ers of all males, 18. List separately the names, addre y since age 10 (by year) excluding Mr. Epstein, with whom you have had sexual activit ty, the date(S) and of sexua l activi up through your current age. Describe the nature n. the perso whether you received money or other consideration from Answer: Objection. Relevance and overbroad. Legal Argument Supporting Entitlement to Discovery without any factual support Plaintiffs only objection is relevancy and overbroad, Rule 26.1 H (S.D. Fla. 2008). or showing as required by Rule 26(c) and Local Gen. is overbroad. Nowhere does C.M.A. explain how such interrogatory le, even if not admissible at It is well settled that relevant information is discoverab to lead to the discovery of trial, so long as the discovery is reasonably calculated v. Palm Beach Tours & admissible evidence. Rule 26(b)(1), Fed.R.Civ.P.; Donahay Discoverability of an alleged trans.. Inc., 242 F.R.D. 685 (S.D. Fla. 2007). is governed by Rule 26, victim's/plaintiffs sexual conduct or activity in civil cases very is broad. Donahav, supra, at Fed.R.Civ.P., pursuant to which the scope of disco very regarding any matter, not 886, and cases cited therein. Parties may obtain disco se of any party involved in the privileged, which is relevant to the claims or defen pending action." Id. ding Plaintiffs sexual In accordance with Rule 26, the discovery sought regar whether she received any activity with males and the nature thereof, including EFTA01070418  Document 54 Entered on FLSD Docket 04/02/2009 Page 13 of 18 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, et al. Page 13 no. 18, are all relevant to compensation or consideration therefore, in interrogatory claims she has, suffered. Plaintiffs damages claims and the type of injury she inform ation and obtaining such Defendant has no other means of obtaining such entiality until the Court can information through Plaintiff will better protect the confid dures under Rule 412(c) whether make a determination in accordance with the proce 412(c), Fed.R.Civ.P. Defendant such information will be admissible at trial. See Rule information obtained through will agree to an order keeping the confidentiality of the discovery. and theories of this action. The evidence sought is relevant based on the facts 32 counts. Counts I through XXX C.M.A.'s First Amended Complaint attempts to allege — Civil Remedies for Personal are purportedly brought pursuant to 18 U.S.C. §2255 and Count XXXII Is entitled Injuries; Count XXXI is entitled "Sexual Battery," Defendant "Conspiracy to Commit Tortious Assault only against seek information about In her answers to Interrogatory nos. 9 and 10, which C.M.A.'s damages claims, Plaintiff answered that self-esteem. I began I have bi-polar disorder and manic depression. I lost my ms. Permanent drug proble cutting myself on my arms and legs and developed injuries are psychological. (Interrog. No. 9). l pain, psychic trauma, I am claiming compensation for mental anguish, menta evaluated by a jury who and loss of enjoyment of life. These damages will be an amount of at least the will provide their own methods of computation in (Interrog. No. 10). statutory minimum established by 18 U.S.C.A. §2255. claims, Plaintiff alleges: In her f t Amended Complaint, relevant to her damages , physical injury, C.MA, has In the past suffered, and will in the future suffer a, mental anguish, pain and suffering, emotional distress, psychological traum dignity, invasion of her humiliation, embarrassment, loss of self-esteem, loss of EFTA01070419  Document 54 Entered on FLSD Docket 04/02/2009 Page 14 of 18 Case 9:08-cv-80811-KAM C.M.A. v. Epstein, et al. Page 14 incurred medical and privacy and other damages ... . The then minor Plaintiff additional medical and psychological expenses ... and will in the future suffer ed loss of income, a psychological expenses. The Plaintiff C.M.A. has suffer of capacity to enjoy loss of the capacity to earn income In the future, and a loss Plaintiff, C.M.A., will life. These Injuries are permanent in nature and the continue to suffer these losses In the future. 5),1125, 31, 37, 43, 49, 55, (1st Am. Complaint, Counts I — XXX (18 U.S.C. §225 127, 133, 139, 145, 151, 157, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, Batte ry), ¶199.) 163, 169, 175, 181, 187, 193; Count XXXI (Sexual ensatory daMages of at In each of her "Wherefore" clauses, Plaintiff seeks "comp §2255, pursuant to which Plaintiff least the minimum provided by law." 18 U.S.C. of "actual damages? See fn. attempts to bring certain of her claims, allows for recovery 2 herein for applicable statutory text al assault and child C.M.A. also alleges that Defendant's conduct was "sexu