EFTA00726515.pdf

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA 2 WEST PALM BEACH DIVISION 3 CASE NO. 08-80119-CIV-MARRA 4 WEST PALM BEACH, FLORIDA JANE DOE, et al., 5 .Plaintiffs, I JUNE 12, 2009 6 VS. 7 JEFFREY EPSTEIN, 8 Defendant. 9 10 TRANSCRIPT OF MOTION HEARING 11 BEFORE THE HONORABLE KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE 12 APPEARANCES: 13 FOR THE PLAINTIFFS: ADAM D. HOROWITZ, ESQ. 14 Mermelstein & Horowitz . 15 Miami, FL 33160 For Jane Doe 16 BRADLEY J. EDWARDS, ESQ. 17 Rothstein Rosenfeldt Adler 18u Fort Lauderdale, FL 33301 ry Jane Doe 3, 4, 5, 6, 7 19 20 ISIDRO M. GARCIA, ESQ. Garcia Elkins Boehrirtger 21• West Palm Beach, FL 33401 22 Jane DOE II 23 RICHARD H. WILLITS, ESQ. 24 Lake Worth, FL 33461 For 25 TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00726515  26 That's not my concern. So, again, I just 1 THE COURT: the cases go forward and if 2 want to make sure that if defend e as someone ordinarily would 3 Mr. Epstein defends the cas that in d against him or her, that 4 a case that's being prosecute to to cause him to be subject 5 and of itself is not going 6 criminal prosecution. MR. JOSEFSBERG: I agree, Your Honor. 7 l want to 8 THE COURT: Any other plaintiff's counse 9 chime in? of IMO- I MR. WILLITS: Richard Willits on behalf 10 d. on what Mr. Josefsberg sai 11 would join, to weigh in hear. MR. JOSEFSBERG: Your Honor, I could not 12 e. THE COURT: We'll get him to a microphon 13 14 Mr. Willits is speaking. , we join MR. WILLITS: On behalf of my client, 15 nt out d, and we also want to poi 16 in what Mr. Josefsberg sai 17 something to the Court. representation to the Court, 18 First, we want to make a Attorney's complaining to the U.S. 19 we have no intention of intention in ention, don't have that 20 office, never had that int in the , subject to what occurs 21 the future, but, of course 22 future. t Court that Mr. Epstein wen 23 I want to point out to the ented by his eyes wide open, repres 24 into this situation with suits had to be coming. If he 25 counsel, knowing that civil EAUTIMETRMSCMPIMM TOTALACCESSMURTRONANFPNORKR EFTA00726516  27 knew it. 1 didn't know it, his lawyers ond thoughts now about he 2 He appears to be having sec otiated that s way or he could have neg 3 could have negotiated thi s Office. And they want to impose 4 way with the U.S. Attorney' We don't the innocent plaintiffs. 5 their second thoughts on of invited 6 think that's fair. We think it's in the nature or whatsoever. 7 error, if there was any err 8 Thank you. e to take the THE COURT: You agree he should be abl 9 take and endant in a civil action can 10 ordinary steps that a def ing to be prosecuted? 11 not be concerned about hav Of course. And we say the same thing 12 MR. WILLITS: rulings and the Mr. Josefsberg said. It's all subject to your 13 what is not as to what is proper and 14 direction of this Court de by the rulings of this 15 proper. And we're prepared to abi State's ention of running to the 16 Court, and we have no int 17 Attorney. THE COURT: The U.S. Attorney? 18 I'm sorry. The U.S. Attorney. 19 MR. WILLITS: THE COURT: Mr. Garcia. 20 MR. GARCIA: Thank you, Your Honor. 21 perhaps defense counsel 22 If I may briefly, I think orandum of pages 17 and 19 of my mem 23 forgot about this, but on make motion to dismiss, / did 24 law in opposition to the did say that cution agreement, and I 25 reference to the non-prose LTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REA EFTA00726517  28 iction of this Court was a 1 the contesting of the jurisd -prosecution agreement. 2 potential breach of the non h e, and they have filed wit 3 So my client happens to hav the fact state court complaint, given 4 the Court a copy of her agreement lim its the non-contesting of 5 that the non-prosecution federal lusively brought under the 6 jurisdiction to claims exc 7 statute. withdraw those contentions 8 I'm going to go ahead and t apply o of law because it doesn' 9 on pages 17 and 19 of my mem sed this issue with 10 to my case. So to the extent that I rai that rt, I'm going to withdraw 11 defense counsel and the Cou 12 aspect of it. writing on that 13 THE COURT: Can you file something in 14 point with the Court? MR. GARCIA: Yes. 15 issue tha t 16 THE COURT: What do you say about this 17 we're here on today? that I have with 18 MR. GARCIA: I think that the problem used by cution agreement is being 19 it is that this non-prose t it was exact opposite purpose tha 20 defense counsel for the ng, and I wasn't around, is 21 intended. My perception of this thi a criminal ly bought his way out of 22 that Mr. Epstein essential ful for the victims in a way, and 23 prosecution, which is wonder 24 wonderful for him, too. non-prosecution agreement 25 Now he's trying to use the TIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REAL EFTA00726518  29 make iffs that he was supposed to 1 as a shield against the plaint 2 restitution for. e my client's depo. He's 3 And, certainly, he can tak the state court case very 4 done extensive discovery in we can win intrusive, I might add. And we don't care, because 5 on agreement or wit hout the 6 this case with the prosecuti We are ready to go forward. 7 prosecution agreement. the United 8 THE COURT: You're not going to assert to the case is t he's doing in defending 9 States Government that wha uld be further prosecuted? 10 a violation for which he sho MR. GARCIA: Absolutely not. 11 iffs? 12 THE COURT: Anyone else for the plaint l for MR. HOROWITZ: Judge, Adam Horowitz, counse 13 through 7. 14 plaintiffs Jane Doe 2 a point that I think you've 15 I just wanted to address it's crystal clear, 16 articulated it. I just want to make sure nt a broad brush for all of the 17 which is that we can't pai 18 cases. to Mr. Epstein being unable 19 The provision relating to who have only to those plaintiffs 20 contest liability pertains My clients, edy the federal statute. 21 chosen as their sole rem e electe d to bring additional causes 22 Jane Doe 2 through 7, hav when you t reason we were silent 23 of action, and it's for tha of the Mr. Epstein to be in breach 24 said does anyone here find tand That provision, as we unders 25 non-prosecution agreement. REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00726519  30 to our clients. 1 it, it doesn't relate agreement THE COURT: Okay. But, again, you're in 2 behalf of a far that's spoken on 3 with everyone else so no rmal course of ing the case in the 4 plaintiff that defend t be a breach? and fi ling motions would no 5 conducting discovery ngs, of cour se, MR. HOROWITZ: Subject to your ruli 6 7 yes. THE COURT: Thank you. 8 ntiffs? ything to say from the plai 9 Anyone else have an nd as to maybe you would be so ki 10 Ms. Villafana, if and I. that you're here, 11 help us out. / appreciate the fact der no obligation party to these cases and un 12 know you're not a it would be quiries. But as I indicated, 13 to respond to my in rnment's position. understand the Gove 14 helpful for me to nor. And we, of MS. VILLAFANA: Thank you, Your Ho 15 t as much as happy to tr y to help the Cour 16 course, are always ts, and rty to any of these lawsui 17 possible. But we are not a pa we don't have e at a di sadvantage because 18 in some ways we ar So I don't d to what's on Pacer. 19 access. My access is limite in y have taken either siti ons Mr. Epstein ma 20 really know what po en't filed in discov ery responses that ar 21 correspondence or in 22 the case file. at do you think was really just wh 23 But your first order to this hearing then the se cond order related 24 about a stay, and ether we re specific qu estion, which is wh 25 and asked a much mo N TOTAL ACCESS COURTROOM NETWORK REALTiME TRANSCRIPTIO EFTA00726520  31 ense was a breach of the 1 believe that Mr. Epstein's def 2 agreement. many of the pleadings as 3 And I've tried to review as ely voluminous. And I 4 possible. As you know, they're extrem re them. But we do believe that the 5 haven't been through all of erred ing that Mr. Josefsberg ref 6 has been a breach in the fil t we have tton, we do understand tha 7 to, and contrary to Mr. Cri notice to ice, and we are providing 8 an obligation to provide not 9 Mr. Epstein today. nd to be in breach -- the 10 The pleading that we fou which was to , sought to do one thing, 11 non-prosecution agreement have been if same position they would 12 place the victims in the for victed of the federal offenses 13 Mr. Epstein had been con 14 which he was investigated. federally prosecuted and 15 And that if he had been would have been entitled to restitution, 16 convicted, the victims the crimes were commit ted, 17 regardless of how long ago old they were at the time, and how 18 regardless of how old they e of the conviction. 19 are today, or at the tim s e them eligible for damage 20 And it also would have mad 21 under 2255. e was that we could set up 22 And so our idea was, our hop that restitution ow these victims to get 23 a system that would all n will expose ough what civil litigatio 24 without having to go thr 25 them to. REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK EFTA00726521  were very hesitant 1 You have a number of girls who the ities about this because of 2 about even speaking to author that ed and about the embarrassment 3 trauma that they have suffer n ught upon themselves and upo 4 they were afraid would be bro 5 their families. osecution agreement tri ed 6 So we did through the non-pr privacy. while also protecting their 7 to protect their rights osecution agr eement -- on the other 8 So, pursuant to the non-pr a key to a to hand them a jackpot or 9 hand, we weren't trying on. put them in that same positi 10 bank. It was solely to sort of guage that said if -- that 11 So we developed this lan to represent them. Most of the 12 provided for an attorney y m the pleadi ngs, come from not wealth 13 victims, as you know fro e known any att orneys who would be in 14 circumstances, may not hav m. 15 a position to help the that Special Master procedure 16 So we went through the the goal was nt of Mr. Josefsberg, and 17 resulted in the appointme Mr. Epstein to try to negotiate with 18 that they would be able tituti on/damages. And if Mr. Epstein 19 for a fair amount of res is that the apparently he has, which 20 took the position, which a cap. That under 2255 also would be 21 $50,000 or $150,000 floor Court to get to file suit in Federal 22 if they were to proceed ity, but Mr. Epstein would admit liabil 23 fair damages under 2255, which means ht the damages portion, 24 he, of course, could fig be entitled to deposi tions; of 25 that, of course, he would IMETRANSCR1PTION TOTALACCESSCOURTROOMNEPNORKREALT EFTA00726522  33 y, and we don't 1 course, he would be entitled to take discover cution 2 believe that any of that violates the non-prose 3 agreement. the motion 4 The issue with the pleading that he filed, 101, represented 5 to dismiss the case, I believe it's Jane Doe that was filed 6 by Mr. Josefsberg, is that that is a case . She met that 7 exclusively under 18 U.S.C., Section 2255 on the 8 requirement. Mr. Epstein is moving to dismiss it, not he cannot be held liable 9 basis of damages, he is saying that of an offense. 10 under 2255 because he was not convicted of an offense is 11 The reason why he was not• convicted tion agreement. So that 12 because he entered into the non-prosecu 13 we do believe is a breach. the motion to stay 14 The issue really that was raised in to the motion to stay is 15 and that I addressed in our response s to stay the litigation 16 that Mr. Epstein's -- Mr. Epstein want attack the cases of the 17 in order to leave, in order to sort of in the non-prosecution or 18 victims whether they are fully with and leave the Government 19 not, non-prosecution agreement or not, breach thos e terms. And 20 without a remedy if he does, in fact, 21 that is why we opposed the stay. 22 THE COURT: I'm not sure what you mean by that last 23 statement. 24 MS. VILLAFANA: Well, because this issue related to client came up after 25 the motion to dismiss on Mr. Josefsberg's ON TOTAL ArrEcS COURTROOM NETWORK REALTIME TRANSCRIPTI EFTA00726523  34 1 we had filed that response. And what we said in the response 2 to the motion to stay is that the reason why he wants to stay 3 the litigation is so that the non-prosecution agreement 4 terminates based on a period of time, as he puts it. And then 5 afterwards he would be able to come in here and make all of 6 these arguments that clearly violate the non-prosecution 7 agreement but we would be without remedy. 8 THE COURT: But you're not taking the position that 9 other than possibly doing something in litigation which is a 10 violation of an express provision of the non-prosecution 11 agreement, any other discovery, motion practice, investigations 12 that someone would ordinarily do in the course of defending a 13 civil case would constitute a violation of the agreement? 14 MS. VILLAFANA: No, Your Honor. I mean, civil 15 litigation is civil litigation, and being able to take 16 discovery is part of what civil litigation is about. And while 17 there may be, for example, if someone were to try to subpoena 18 the Government, we would obviously resist under statutory 19 reasons, all that sort of stuff. But, no, Mr. Epstein is 20 entitled to take the deposition of a plaintiff and to subpoena 21 records, etc. 22 THE COURT: And even if he seeks discovery from a 23 Government agency, you have the right to resist it under the 24 rules of procedure but that would not constitute a violation, 25 again unless there's a provision in the prosecution agreement TOTALACCESSODURTROOM NETWORKREALTIMETRANSCRIPTION EFTA00726524