Court Records
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 1 of 15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
JANE DOE NO. 2, CASE NO.: 08-CV-80119-MARRA
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 3,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 4, CASE NO.: 08-CV-80380-MARRA
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 5, CASE NO.: 08-CV-80381-MA
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 08-CV-80232-MARRA
EFTA02738953
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 2 of 15
JANE DOE NO. 6, CASE NO.: 08-CV-80994-MARRA
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 7,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
C.M.A., CASE NO.: 08- CV-8081 I -MARRA/
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 08- CV-80993-MARRA
JANE DOE,
Plaintiff,
vs.
JEFFREY EPSTEIN, et al.,
Defendant.
DOE II, CASE NO.: 08-CV- 80469-MARRA
Plaintiff,
CASE NO.: 08- CV-80893-MARRA
vs.
2
EFTA02738954
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 3 of 15
JEFFREY EPSTEIN et al.,
Defendant.
JANE DOE NO. 101, CASE NO.: 08- CV-80591-MARRa
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 102, CASE NO.: 08- CV-80656-MARRA
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
/
PLAINTIFFS JANE DOES 2-7'S RESPONSE TO DEFENDANT'S MOTION TO
COMPEL AND/OR IDENTIFY PLAINTIFFS IN THE STYLE OF THIS CASE AND
MOTION TO IDENTIFY JANE DOE IN THIRD -PARTY SUBPOENAS FOR
PURPOSES OF DISCOVERY, OR ALTERNATIVELY, MOTION TO DISMISS
"SUA SPONTE", WITH INCORPORATED MEMORANDUM OF LAW
Plaintiffs, JANE DOES 2-7, hereby serve their Response to Defendant's Motion to
Compel and/or Identify Plaintiffs in the Style of this Case and Motion to Identify Jane Doe in
Third-Party Subpoenas for Purposes of Discovery, or Alternatively, Motion to Dismiss "Sua
Sponte", With Incorporated Memorandum of Law, and state as follows:
I. The lawsuits filed by JANE DOES 2-7 involve private, intimate facts pertaining
to their own childhood sexual abuse and exploitation by Defendant Jeffrey Epstein.
3
EFTA02738955
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 4 of 15
2. Jane Does 2-7 filed their suits under a pseudonym' to prevent public disclosure of
the private, highly sensitive and intimate facts pertaining to their sexual assaults, and the public
association of their identities with Defendant Epstein and these assaults.
3. Dr. Gilbert Kliman,' a well-known forensic psychiatrist with an expertise in the
field of child trauma, has met with and evaluated each of Jane Does 2-7 and opined that public
disclosure of their real names would create a substantial risk to them of further psychological
harm. See Exhibit "A", Declaration of Gilbert Kliman. M.D.
4. Dr. Kliman opines as follows:
Releasing names of the plaintiffs to the public will reenact experiences of
powerlessness and helplessness in the face of a boundary violation. Repetition and
reenactment represent central features of Criterion B in the DSM-IV-TR diagnosis
of posttraumatic stress disorder trauma. In effect, release of their identity and
public intrusion into their personal life represents a reenactment of the shame of
sexual traumatization. Repetition and reenactment are central pathologies that
afflict sexual trauma survivors.
Victims of sexual abuse often rely upon some form of dissociation, splitting or
denial, as a defensive means to manage overwhelming affects associated with the
sexual trauma. Each of the plaintiff girls has employed some variation of this
defense, both during the massages and then subsequently following disclosure of
the abuse. Primitive, maladaptive responses of this nature will become
additionally reinforced as a result of public disclosure.
Another aspect of the plaintiffs' experience, which is recognized by DSM-IV-TR,
is that the trauma was associated with human design factors (such as cruel
intention to do harm, rape, torture). Trauma of this origin has a tendency to
produce more "severe or long lasting" posttraumatic stress disorder than natural
events (DSM IV TR p. 4.64). A policy of deliberate revelation of the names of the
victims would reinforce the sense of design, pattern and policy of human
intentions.
It is my opinion, with a reasonably high degree of medical certainty that the
defense motion to allow public disclosure of the plaintiffs' identity is clinically
1 Defendant and his counsel are aware of the real names of Jane Does 2-7.
2 A copy of the curriculum vitae of Dr. Gilbert Kliman is attached hereto as Exhibit "B".
4
EFTA02738956
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 5 of 15
and ethically a wrongful plan. The act of revealing their identity against their
wishes places the plaintiffs at risk, in the best of circumstances, of suffering an
aggravation of existing diagnostic concerns. It is more probable than not that
releasing personal identities will an exacerbation and magnification of
symptoms lending to increased risk of revictimization and retraumatization.
S Exhibit "A", 11 13-15, 21
5. Given the private nature of the allegations in this lawsuit and the serious risk of
harm to the mental health of Jane Does 2-7 if a public disclosure of their identities were required,
Jane Does 2-7 should be permitted to continue using a pseudonym in this lawsuit.
6. Notably, in one of the cases consolidated for purposes of discovery, Jane Doe v.
Jeffrey Epstein, Case No. 08-80893, this Court recognized the harm likely to result from public
disclosure of the victims' identities in these cases, and allowed the Plaintiff in that case to
"proceed in this action under the pseudonym 'Jane Doe' ", by Order dated October 6, 2008.
7. Jeffrey Epstein sets forth no facts to support his bare contention that Jane Does 2-
7 use of a pseudonym in these proceedings interferes with his "constitutional due process right."
Ste Motion to Compel, p. 3. Defendant and his counsel know the identities of these Plaintiffs.
8. Defendant also requests the Court's permission to use the real names of Jane Does
2-7 in various third-party subpoenas for discovery purposes. Defendant does not identify any of
the entities or persons to whom he intends to send subpoenas. An order granting the relief
requested without limitations would essentially nullify Jane Does 2-7's right to proceed
anonymously. Jane Does 2-7 therefore object to the issuance of third-party subpoenas, and
submit that Defendant can obtain the discovery he seeks by alternative means that will preserve
the confidentiality of the Jane Does 2-7's identities.
9. If this Court were to permit third party subpoenas or records custodian
depositions using the existing captions and identifying Jane Does 2-7 in the body of the
5
EFTA02738957
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 6 of 15
subpoena by their names, due to publicity surrounding the Defendant's crimes, then Jane Does 2-
7 would effectively be revealed as abuse victims in these cases against Defendant Epstein. Any
subpoenas or notices to third parties therefore should not disclose the type of action or the
Defendant's identity. There are alternatives which would preserve Jane Does 2-7's anonymity
and be more efficient and cost-effective at the same time. For instance, Defendant can obtain
records from various non-party sources through Plaintiffs' counsel, who can certify that they
have obtained the records through authorizations signed by Jane Does 2-7. Another means to
obtain non-party records concerning Plaintiffs is the appointment of a special =, who would
verify authenticity and completeness of the records.
10. Finally, Jeffrey Epstein's request that this Court order a "sua sponte" dismissal is
illogical. Sua sponte means "[w]ithout prompting or suggestion; on its own motion." Black's
Law Dictionary 1437 (7th ed.1999). Thus, the definition of sua sponte does not fit these
circumstances, because the Court is being prompted by Epstein's Motion. Velchez v. Carnival
Corp„ 331 F.3d 1207 (11th Cir. 2003). In any event, there is no basis or authority to support a
dismissal of these cases.
WHEREFORE, Plaintiffs Jane Does 2-7 respectfully request that (i) this Court deny
Defendant's Motion to Compel and/or Identify Plaintiffs in the Style of this Case and Motion to
Identify Jane Doe in Third-Party Subpoenas for Purposes of Discovery, or Alternatively, Motion
to Dismiss "Sua Sponte", in its entirety; (ii) Plaintiffs Jane Does 2-7 be permitted to continue
using their pseudonyms in this litigation; (iii) this Court order that records from non-parties
relating to Jane Does 2-7, including medical and employment records, only be obtained through
Plaintiffs' counsel by means of signed authorizations that do not include the caption or identify
Epstein as the party seeking records, or alternatively, appoint a special to obtain the
6
EFTA02738958
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 7 of 15
records, who would verify authenticity and completeness of the records; and (iv) all other relief
this Court deems just and appropriate.
MEMORANDUM OF LAW
1. PLAINTIFFS JANE DOES 2-7 SHOULD BE PERMITTED
TO PROCEED ANONYMOUSLY IN THIS CASE DUE TO THE
SENSITIVE, PRIVATE NATURE OF THE UNDERLYING FACTS
AND THE RISK DI' PSYCHOLOGICAL HARM TO THE PLAINTIFFS
Federal courts permit a party to proceed under a pseudonym when special circumstances
warrant anonymity. See, e.g., Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685-87
(11th Cir.2001); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th
Cir.2000); James v. Jacobson, 6 F.3d 233, 238-39 (4th Cir.1993); EW v. New York Blood Center,
213 F.R.D. 108, 110-12 (E.D.N.Y.2003); Javier v. =-Botello, 211 F.R.D. 194, 196
(W.D.N.Y.2002); Doe v. , 105 F.Supp.2d 40, 43.44 (E.D.N.Y.1999); Doe v. United Servs.
Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y.1988). Sexual assault victims are a paradigmatic
example of those entitled to a grant of anonymity. See Doe No. 2 v. Kolko, 242 F.R.D. 193 (ED.
N.Y. 2006); Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872 (7th Cir.1997)
("fictitious names are allowed when necessary to protect the privacy of ... rape victims, and other
particularly vulnerable parties or witnesses"); see also Doe v. City of Chicago, 360 F.3d 667, 669
(7th Cir. 2004).
The decision whether to allow a plaintiff to proceed anonymously is within the court's
discretion. See Aware Woman Or., 253 F.3d at 684; Javier, 211 F.R.D. at 195; EW, 213 F.R.D.
at 110. As set forth above, this Court exercised its direction in one of the consolidated cases,
Jane Doe v. Jeffrey Epstein, Case No. 08-80893, to allow a plaintiff to proceed under the
pseudonym "Jane Doe" in an Order dated October 6, 2008.
7
EFTA02738959
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 8 of 15
Courts will permit a party to proceed under a pseudonym where "the party's need for
anonymity outweighs prejudice to the opposing party and the public's interest in knowing the
party's identity." Does I Thru XXIII, 214 F.3d at 1068; see Javier, 211 F.R.D. at 195; EW, 213
F.R.D. at 111; As set forth herein, the balancing test in this case weighs in favor of permitted
plaintiff to continue to proceed anonymously:
In undertaking this balance, courts have considered such facts as
(1) whether the plaintiff is suing the government or a private
person; (2) whether the plaintiff would be compelled to disclose
intimate information; (3) whether plaintiff would be compelled to
his or her intention in engage in illegal conduct, thereby risking
criminal prosecution; (4) whether the plaintiff would risk injury if
identified; (5) whether the party defending against a suit brought
under a pseudonym would thereby be prejudiced; (6) the ages of
the parties whose identity is to be suppressed; (7) the extent to
which the identity of the litigant has been kept confidential; (8)
whether, because of the purely legal nature of the issues presented
or otherwise, there is an atypically weak public interest in knowing
the litigants' identities; and (9) the public interest in guaranteeing
open access to proceedings without denying litigants access to the
justice system.
Doe v. Del Rio 241 F.R.D. 154, 157 (S.D. N.Y. 2006)
The public has a strong interest in protecting the identities of sexual assault victims so
that other victims will not be deterred from reporting such crimes. See Doe v. , 202 F.R.D.
173, 176 (E.D.Pa.2001) (granting anonymity to sexual assault victim); Doe No. 2 v. Kolko, 242
F.R.D. 193 (E.D. N.Y. 2006). That is particularly true in these consolidated cases where there
are numerous victims with similar claims. Although these cases have gained considerable media
attention, there appears to be little public interest in knowing the specific identity of each of the
victims.
With regard to the second factor, courts have granted anonymity to protect against
disclosure of a wide range of issues involving matters of the utmost intimacy, including sexual
8
EFTA02738960
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 9 of 15
assault. See, e.g., Aware Woman Ctr., 253 F.3d at 685 (abortion); EW, 213 F.R.D. at II I
(infection with hepatitis B); Doe v. 202 F.R.D. 173, 176 (E.D.Pa.2001) (sexual assault
victim); , 105 F.Supp.2d at 42 (sexual assault victim); WGA v. Priority Pharmacy, Inc., 184
F.R.D. 616, 617 (E.D.Mo.1999) (status as AIDS patient); Doe v. United Servs. Life Ins. Co., 123
F.R.D. 437, 439 (S.D.N.Y.1988) (sexual orientation); see also Blue Cross, 112 F.3d at 872
(recognizing rape victims as entitled to anonymity). It cannot be reasonably denied that a
person's sexual history — especially during their childhood — is an intimate fact. When the
childhood sexual history includes criminal sexual contact by an adult, the facts are even more
intimate and personal. In the electronic age in which we live, these concerns are heightened. As
federal courts have recognized in this context, it is now possible to "determine whether a given
individual is a party to a lawsuit in federal court anywhere in the country by the simplest of
computer searches, to access the docket sheet of any such case electronically, and ... that entire
case files will be accessible over the Internet." Doe v. City of New York, 201 F.R.D. 100, 102
(S.D.N.Y.2001) (denying anonymity where any injury was purely reputational and case did not
involve private or intimate matter); see EW, 213 F.R.D. at 112-13.
As Dr. Kliman explains in his Declaration, disclosure of Jane Does 2-7's identities will
place these Plaintiffs "at-risk of having their personal lives scrutinized by friends, extended
family, spouses, children, fellow students, employers and fellow employees, the media and
general public. This type of exposure humiliates many victims and represents another betrayal of
trust. Public exposure places the plaintiff's at further risk of stigmatization, shame and
retraumatization." See Exhibit "A" at 1 3. Dr. Kliman also finds it of no consequence that some
of the plaintiffs are now legally adults in that "[d)ue to traumatization the plaintiffs are arrested
in their development, and even those who are now legally adult are arrested in part to adolescent
9
EFTA02738961
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 10 of 15
aspects of psychology." Id. at 1 4
The policy of protecting victims of sexual misconduct from undue embarrassment and
disclosure of their private affairs is firmly established in Fed.R.Evid. 412. The protections of
Rule 412 are designed to "encourage victims of sexual misconduct to institute and participate in
legal proceedings against alleged offenders." (Committee Notes to 1994 Amendment).
Likewise, many states in this country, including Florida and New York, have similarly enacted
laws to protect the anonymity of sexual assault victims. See Fla. Stat. §§794.024, 794.026
(2008); N.Y. Civil Rights Law § 50-b (McKinney 2009). In 1994, the Florida Legislature passed
The Crime Victims Protections Act. The legislative stated purpose for the Act was "to protect
the identity of victims of sexual crimes." Fla. AGO, 2003-56, 2003 WL 22971082 (Dec. 15,
2003). Under §794.024, Florida Statutes, court records that identify the name and/or address of a
victim of a sexual crime are presumed to be confidential and exempt from public access. Id.
Similarly, upon approving New York's rape shield law, then Governor Mario stated,
"sexual assault victims have unfortunately had to endure a terrible invasion of their physical
privacy. They have a right to expect that this violation will not be compounded by a further
invasion of their privacy." 1991 McKinney's Sessions Laws of N.Y., at 2211-2212 (quoted in
Deborah S. v. Diorio, 153 Misc.2d 708, 583 N.Y.S.2d 872 (N.Y.Ciry Civ.Ct.1992)); see also
Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) ("Short of homicide,
[rape] is the ultimate violation of self').
As to the fourth factor of risk injury, Dr. Kliman has evaluated Jane Does 2-7, and has
concluded that the childhood sexual abuse at issue has caused features of post-traumatic stress
disorder (PTSD), including shame, guilt, helplessness, and powerlessness. See Exhibit "A" at III
4-7. Dr. Kliman further states, "it is more probable than not that releasing personal identities
10
EFTA02738962
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 11 of 15
will an exacerbation and magnification of symptoms lending to increased risk of
revictimization and retraumatization." Id. at 1 21. Thus, this is not a case analogous to those
cited by defendant in which the plaintiffs were merely at risk of "personal embarrassment."
Instead, there is a genuine and immediate risk of psychological harm.
None of the cases cited by Defendant where courts denied a plaintiff's request for
anonymity involved victims of childhood sexual assault or evidence of emotional or
psychological harm that would result from disclosure of the plaintiff's identity. See Doe v. Hartz,
52 F.Supp.2d 1027 (N.D.Iowa 1999); Doe v. Shakur, 164 F.R.D. 359 (E.D.N.Y.1996); Doe v.
Bell Atlantic Bus. Sys. Servs., 162 F.R.D. 418 (D.Mass.1995); Doe v. Univ. of Rhode Island, 28
Fed.R.Serv.3d 366, 1993 WL 667341 (D.R.I. Dec. 28, 1993).
As to the factor of prejudice, the Defendant does not identify how his ability to conduct
discovery or impeach Jane Does 2-7's credibility has been or will be impaired if these Plaintiffs
are permitted to proceed under a pseudonym. See EW, 213 F.R.D. at 112, M, 105 F.Supp.2d
at 44-45. Other than the need to make redactions and take measures not to disclose these
Plaintiffs' identities, Defendant will not be hampered or inconvenienced merely by Plaintiffs'
anonymity in court papers. As set forth above, Defendant already knows their true identities. See
Aware Woman Center, 253 F.3d at 687 (no prejudice where plaintiff offered to disclose her name
to defendant); EW, 213 F.R.D. at 112; , 105 F.Supp.2d at 44-45.
II. DEFENDANT SHOULD NOT BE PERMITTED TO USE
THE REAL NAMES OF JANE DOES 2-7 IN THIRD -PARTY
SUBPEONAS EXCEPT FOR THOSE ISSUED TO PERSONS WHOM
PLAINTIFFS HAVE ALREADY DISCLOSED THEIR SEXUAL ABUSE
As for the use of Jane Does 2-7's real names in subpoenas issued to non-parties, a party
may obtain discovery of any non-privileged matter that is relevant to a claim or defense of any
party. Fed.R.Civ.P. 26(b)(1). However, a district court may limit discovery "for good cause
II
EFTA02738963
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 12 of 15
shown" by making "any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense," including that the
discovery not be had or that it be had only by a method other than that selected by the party
seeking discovery. Fed.R.Civ.P. 26(c). Jane Does 2-7 have articulated a specific and substantial
harm from disclosure of their identities.
If this Court were to permit Defendant to issue third-party subpoenas containing Jane
Doe 2-7's real names, the identity of the Defendant, and/or facts pertaining to the nature of the
case to whomever Defendant wants, it would be akin to requiring these Plaintiffs to use their real
name in the pleadings. Instead, Jane Does 2-7 propose to voluntarily execute authorizations
(which would not contain the case names or the identity of the Defendant) to allow Defendant to
obtain education, employment, and medical records to be used for purposes of this litigation
only.3 Alternatively, Defendant can obtain the records through a special who would
verify authenticity and completeness of the records. Either of these approaches would not only
place Jane Does 2-7 at less risk of psychological harm, but would also be more cost-effective and
efficient.
CONCLUSION
Based on the foregoing, Plaintiffs Jane Does 2-7 respectfully request that Defendant's
Motion to Compel and/or Identify Plaintiffs in the Style of this Case and Motion to Identify Jane
Doe in Third-Party Subpoenas for Purposes of Discovery, or Alternatively, Motion to Dismiss
"Sua Sponte" be denied in its entirety, and that Plaintiffs Jane Does 2-7 be permitted to continue
using their pseudonyms in this litigation. Additionally, to avoid public disclosure of the
Plaintiff's identities in non-party records discovery, Plaintiffs Jane Does 2-7 request that such
3 Defendant and Plaintiff have previously agreed that education records can be obtained in this
12
EFTA02738964
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 13 of 15
discovery be obtained either through Plaintiffs' counsel by means of written authorizations, or by
the appointment of a special
Dated: June 8, 2009
Respectfully submitted,
By: s/ Adam D. Horowitz
Stuart S. Mermelstein (FL Bar No. 947245)
[Email Redacted]
Adam D. Horowitz (FL Bar No. 376980)
[Email Redacted]
MERMELSTEIN & HOROWITZ, P.A.
Attorneys for Plaintiffs Jane Doe Nos. 2-7
18205 Biscayne Blvd., Suite 2218
Miami, Florida 33160
Tel: ([Phone Redacted]
Fax: ([Phone Redacted]
manner in lieu of subpoenas.
13
EFTA02738965
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 14 of 15
CERTIFICATE OF SERVICE
I hereby certify that on June 8, 2009, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served
this day to all parties on the attached Service List in the manner specified, either via transmission
of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for
those parties who are not authorized to receive electronically Notices of Electronic Filing.
/s/ Adam D. Horowitz
14
EFTA02738966
Case 9:09-cv-80656-KAM Document 29 Entered on FLSD Docket 06/08/2009 Page 15 of 15
SERVICE LIST
DOE vs. JEFFREY EPSTEIN
United States District Court, Southern District of Florida
Jack Alan Goldberger, Esq.
[Email Redacted]
Robert D. Critton, Esq.
[Email Redacted]
James
[Email Redacted]
Isidro Manuel
[Email Redacted]
Jack
[Email Redacted]
U
Katherine Warthen Ezell
[Email Redacted]
Michael James Pike
[Email Redacted]
Paul G. Cassell
[Email Redacted]
Richard Horace Willits
[Email Redacted]
Robert C. Josefsberg
[Email Redacted]
/s/ Adam D. Horowitz
15
EFTA02738967