Court Records
Case 9:08-cv-80232-KAM Document 56 Entered on FLSD Docket 03/25/2009 Page 1 of 36
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80232-MARRA I
JANE DOE NO. 3,
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
DEFENDANT EPSTEIN'S RESPONSE TO PLAINTIFF'S MOTION TO
COMPEL ANSWERS TO INTERROGATORIES, and RESPONSES TO
1st and 2 nd PRODUCTION OF DOCUMENTS, AND INCORPORATED
MEMORANDUM OF LAW
Defendant, JEFFREY EPSTEIN, by and through his undersigned counsel, serves
his response and supporting memorandum of law to Plaintiffs Motion to Compel
Answers to Interrogatories and Production of Documents, and Incorporated
Memorandum of Law In Support, dated March 2, 2009. In support of Defendant's
assertion of constitutional privileges and objections to discovery and in response to
Plaintiffs motion to compel, Defendant states:
Introduction
As discussed more fully herein, Defendant has asserted constitutional based
protections to the discovery requests propounded by Plaintiff. In addition and in
alternative to the constitutional protections afforded under the Fifth, Fourteenth and
Sixth Amendments, Defendant also asserted other factual/legal objections and
privileges. However, as will be evident in reviewing Plaintiffs discovery requests and
Defendant's response, the constitutional assertions are required to be determined first
so that Defendant does not risk rendering these protections meaningless in attempting
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to assert and argue the factual basis for the additional objections and privileges. See
part II.A. herein.
I. Defendant EPSTEIN has properly asserted his constitutional claims of
privilege and effective assistance of counsel, as guaranteed under the Fifths
Sixth, and Fourteenth Amendments of the United States Constitution, to each of
the specified interrogatories and production requests.
In accordance with applicable law, EPSTEIN has properly asserted his
claims of privilege and effective assistance of counsel as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments of the United States Constitution to each of the
interrogatories propounded by Plaintiff in her first set of Interrogatories and first
production request. See Exhibit A to Plaintiffs Motion to Compel for Defendant's
Response and Objections to Plaintiffs Amended Interrogatories, and Exhibit B to
Plaintiffs motion for production requests and Defendant's responses thereto. Contrary
to Plaintiff's assertion that Defendant made an improper "blanket objection," Defendant
examined and responded to each of the discovery requests and raised constitutional
privileges, along with other alternative objections applicable to the specific interrogatory
or production request. See Exhibit A and B to Plaintiff's motion. (Although Defendant
sets forth each of the interrogatories and requests below, because Plaintiff has attached
the responses as Exhibits to her motion, Defendant does not retype the responses in
their entirety herein).
The circumstances of this case (and the others) are such that not only does
Defendant EPSTEIN face allegations of sexual misconduct with and abuse, exploitation,
and sexual battery of alleged minors in this and other civil actions, but he also faces
criminal prosecution based on the same factual allegations. The Plaintiffs attorney
represents Jane Doe Nos. 2, 3, 4, 5, 6, and 7, in civil actions against EPSTEIN filed in
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this Court. (There are additional state and federal civil actions against EPSTEIN). In
this and the other civil actions, the Plaintiffs reference federal and state criminal statutes
in an attempt to allege claims ranging from sexual battery to intentional infliction of
emotional distress, to a violation of 18 U.S.C. 2422, entitled "Coercion and enticement,
contained in Title 18, "Crimes and Criminal Procedure," Part I — "Crimes,' Chapter 117 —
"Transportation for Illegal Sexual Activity and Related Crimes'," to a cause of action
pursuant to 18 U.S.C. §2255 — which creates a civil remedy for personal injuries where
a plaintiff can show a violation of specified statutory criminal statues. Plaintiff is
attempting to allege a violation of 18 U.S.C. §2422. See endnote 1 for current text of 18
U.S.C. §2422, along with pre-2006 amended text. See Exhibit B hereto - copy of
Plaintiffs Second Amended Complaint.
Plaintiff alleges that `4 a Palm Beach Community College student,"
was an "integral player in Epstein's Florida scheme;" "she recruited girls ostensibly to
give a wealthy man a massage for monetary compensation ... ." 2d Am. Complaint, ¶10.
(In civil actions by Jane Doe No. 2 and Jane Doe No. 5, also before this court, the
Plaintiffs therein allege that ' , Epstein's assistant" was a part of "Epstein's
plan and scheme (which) reflected a particular pattern and method" in the alleged
recruiting of girl's to come to EPSTEIN's Palm Beach mansion and give him "massages"
in exchange for money. Jane Doe No.2 and Jane Doe No. 5 - 2nd Am. Complaint, ¶11-
12.) According to the complaint allegations — "Upon information and belief Epstein
has a sexual preference and obsession for underage minor girls." ¶8. Once at Epstein's
Palm Beach mansion, the "victim" would be "led up a flight of stairs to a bedroom that
contained a massage table ... ." The girl would be alone with EPSTEIN. EPSTEIN
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would be "wearing only a towel to cover his private area." Epstein "then would lay down
on the massage table and perform one or more lewd, lascivious and sexual acts,
including masturbation and touching the girl sexually." 2nd Am. Complaint, ¶11, Exhibit
B. Plaintiff alleges that "in 2004-2005," she, "then approximately 16 years old, fell into
Epstein's trap and became one of his victims." ¶8.
Jane Doe No. 3 further alleges that brought her to Epstein's Palm
Beach mansion, where she was led up a flight of stairs a room with a massage table.
"She was alone in the room when Epstein arrived wearing a towel to cover his private
parts." Plaintiff alleges that Epstein "sexually assaulted" her and "masturbated" "during
the massage" 2d Am. Complaint, ¶12. Plaintiff also alleges that EPSTEIN "maintains
his principal home in New York and also owns residences in New Mexico, St.a
and Palm Beach, FL." Id, ¶7. "Upon information and belief, Jeffrey Epstein carried out
his scheme and assaulted girls in Florida, New York and on his private island, known as
Little St. James, in St. M" Id, ¶9. The nature of the allegations is (obviously)
serious.
The threat of criminal prosecution is real and present as EPSTEIN remains under
the scrutiny of the United States Attorney's Office (USAO) which, as explained more
fully herein, possesses the power to move forward with its criminal prosecution against
EPSTEIN. EPSTEIN entered into a Non-Prosecution Agreement ("NPA") with United
States Attorney General's Office for the Federal Southern District of Florida. The terms
and conditions of the NPA also entailed EPSTEIN entering into a Plea Agreement with
the State Attorney's Office, Palm Beach County, State of Florida. By its terms, the NPA
took effect on June 30, 2008. As well, pursuant to the NPA, any criminal prosecution
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against EPSTEIN is deferred as long as the terms and conditions of the NPA are
fulfilled by EPSTEIN. Criminal matters against EPSTEIN remain ongoing until the NPA
expires by its terms in late 2010 and as long as the USAO determines that EPSTEIN
has complied with those terms and conditions. The threat of criminal prosecution
against EPSTEIN by the USAO continues presently and through late 2010. The USAO
possesses the right to declare that the agreement has been breached, give EPSTEIN's
counsel notice, and attempt to move forward with the prosecution. In other words, the
fact that there exists a NPA does not mean that EPSTEIN is free from future criminal
prosecution. In fact, the threat of prosecution is real, substantial, and present. See
attached Exhibit "A", Affidavit of Jack A. Goldberger, a board certified criminal defense
attorney who has in the past and is currently representing EPSTEIN.
A.
Memorandum of Law Supporting Application of Constitutional Privileges
The Fifth Amendment provides in relevant part that "No person ... shall be
compelled in any Criminal Case to be a witness against himself? Hoffman v. United
States, 341 U.S. 479, 486, 71 S.Ct. 814 (1951), citing v. United States, 1944,
322 U.S. 487, 489, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408." The Fifth Amendment's
privilege against self-incrimination is "accorded liberal construction in favor of the right it
was intended to secure." "The immediate and potential evils of compulsory self-
disclosure transcend any difficulties that the exercise of the privilege may impose on
society in the detection and prosecution of a crime." Id, at 490; and In re
Financial Svcs. of Fla., Inc., 259 B.R. 391, 399 (M.D. Fla. 2000). The privilege not only
extends to answers that would in themselves support a conviction under a criminal
statute but likewise embraces those which would furnish a link in the chain of evidence
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needed to prosecute the claimant for a crime. Id, citing Blau v. United States, 1950, 340
U.S. 159, 71 S.Ct. 223. The Fifth Amendment privilege against self-incrimination
"permits a person not to answer official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers might incriminate him in future
criminal proceedings." Edwin v. Price, 778 F.2d 668, 669 (11th Cir. 1985), citing
Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.C. 316, 322 (1973). See also Ohio v. Reiner,
532 U.S. 17, 21, 121 S.Ct. 1252 (2001)(The Fifth Amendment privilege is also available
to those who claim innocence. One of the Fifth Amendment's "basic functions ... is to
protect innocent men ... 'who otherwise might be ensnared by ambiguous
circumstances."); Malloy v. Hogan 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's
Self-Incrimination Clause applies to the states through the Due Process Clause of the
Fourteenth Amendment - "[lit would be incongruous to have different standards
determine the validity of a claim of privilege based on the same feared prosecution,
depending on whether the claim was asserted in state or federal court.")' Kastigar v.
U.S. 406 U.S. 441, 444-45, 92 S.Ct. 1653 (1972)(The Fifth Amendment privilege "can
be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory
or adjudicatory; and it protects against any disclosures which the witness reasonably
believes could be used in a criminal prosecution or could lead to other evidence that
might be so used. This Court has been zealous to safeguard the values which underlie
the privilege." (Emphasis added)).
As EPSTEIN is here, "the claimant must be 'confronted by substantial and 'real,'
and not merely trifling or imaginary, hazards of incrimination." See generally United
States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 956, 63 L.Ed.2d 250 (1980)).
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See also, United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S.
925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980)(Information is protected by the privilege
not only if it would support a criminal conviction, but even if "the responses would
merely 'provide a lead or clue' to evidence having a tendency to incriminate.").
The United States Supreme Court has made clear that the scope of the Fifth
Amendment Privilege also encompasses the circumstance where "the act of producing
documents in response to a subpoena (or production request) has a compelled
testimonial aspect." United States v. Hubbell 530 U.S. 27, 36, 120 S.Ct. 2037, 2043
(2000); see also Fisher v. United States 425 U.S. 391 (1976); McCormick on Evidence,
Title 6, Chap. 13. The Privilege Against Self-Incrimination, §138 (6111 Ed.). In explaining
the application of the privilege, the Supreme Court stated:
We have held that "the act of production" itself may implicitly communicate
"statements of fact." By "producing documents in compliance with a
subpoena, the witness would admit that the papers existed, were in his
possession or control, and were authentic."Frs Moreover, as was true in this
case, when the custodian of documents responds to a subpoena, he may be
compelled to take the witness stand and answer questions designed to
determine whether he has produced everything demanded by the subpoena. Fazg The answers to those questions, as well as the act of production itself,
may certainly communicate information about the existence, custody, and
authenticity of the documents. Whether the constitutional privilege protects
the answers to such questions, or protects the act of production itself, is a
question that is distinct from the question whether the unprotected contents of
the documents themselves are incriminating.
FN19. "The issue presented in those cases was whether the act of
producing subpoenaed documents, not itself the making of a statement,
might nonetheless have some protected testimonial aspects. The Court
concluded that the act of production could constitute protected testimonial
communication because it might entail implicit statements of fact: by
producing documents in compliance with a subpoena, the witness would
admit that the papers existed, were in his possession or control, and were
authentic. United States v. Doe, 465 U.S., at 613. and n. 11, 104 S.Ct.
123T Fisher, 425 U.S., at 409-410, 96 S.Ct. 1569; id., at 428, 432, 96
S.Ct. 1569 (concurring opinions). See Braswell v. United States, 1487
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U.S.,1 at 104, 108 S.Ct. 2284; j id.,1 at 122, 108 S.Ct. 2284 (dissenting
opinion). Thus, the Court made clear that the Fifth Amendment privilege
against self-incrimination applies to acts that imply assertions of fact."...
An examination of the Court's application of these principles in other cases
indicates the Court's recognition that, in order to be testimonial, an
accused's communication must itself, explicitly or implicitly, relate a factual
assertion or disclose information. Only then is a person compelled to be a
'witness' against himself." Doe v. United States, 487 U.S., at 209-210, 108
S.Ct. 2341 (footnote omitted).
FN20. See App. 62-70. Tlai sfaLpxample, after respondent had been duly
sworn by the grand jury, the prosecutor called his attention to
paragraph A of the Subpoena Rider (reproduced in the Appendix, infra, at
2048-2049) and asked whether he had produced "all those documents."
App. 65.
Finally, the phrase "in any criminal case" in the text of the Fifth Amendment
might have been read to limit its coverage to compelled testimony that is used
against the defendant in the trial itself. It has, however, long been settled that
its protection encompasses compelled statements that lead to the discovery of
incriminating evidence even though the statements themselves are not
incriminating and are not introduced into evidence. Thus, a half century ago
we held that a trial judge had erroneously rejected a defendant's claim of
privilege on the ground that his answer to the pending question would not itself
constitute evidence of the charged offense. As we explained:
"The privilege afforded not only extends to answers that would in
themselves support a conviction under a federal criminal statute but likewise
embraces those which would furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime." Hoffman v. United States, 341
U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
Compelled testimony that communicates information that may "lead to
incriminating evidence" is privileged even if the information itself is not
inculpatory. Doe v. United States, 487 U.S. 201, 208, n. 6, 108 S.Ct. 2341,
101 L.Ed.2d 184 (1988). It's the Fifth Amendment's protection against the
prosecutor's use of incriminating information derived directly or indirectly from
the compelled testimony of the respondent that is of primary relevance in this
case.
In summarizing its holding regarding the application of the Fifth Amendment
Privilege to a production request, the Hubbell Court left "no doubt that the constitutional
privilege against self incrimination protects" not only "the target of a grand jury
investigation from being compelled to answer questions designed to elicit information
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about the existence of sources of potentially incriminating evidence," but the privilege
also "has the same application to the testimonial aspect of a response to a subpoena
seeking discovery of those sources." At 43, and 2047.
The privilege against self-incrimination may be asserted during discovery when a
litigant has "reasonable grounds to believe that the response would furnish a link in the
chain of evidence needed to prove a crime against a litigant." A witness, including a
civil defendant, is entitled to invoke the Fifth Amendment privilege whenever there is a
realistic possibility that the answer to a question could be used in anyway to convict the
witness of a crime or could aid in the development of other incriminating evidence that
can be used at trial. Id; Pillsbury Company v. Conboy, 495 U.S. 248, 103 S.Ct. 608
(1983). See also Hubbell, supra, quoted above as to what is encompassed by the
phrase "in any criminal case" contained in the Fifth Amendment.
As noted, the Fifth Amendment privilege against self-incrimination is broad.
Hoffman; In re Financial Svcs. supra. To deny a witness the right to invoke the
privilege, the judge must be perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness is mistaken, and that the answers cannot
possibly have such tendency to incriminate. Id at 488, 399. Recognizing the breadth
and magnitude of this constitutional privilege, the United States Supreme Court in
discussing how a court is to analyze the application of the privilege stated —
... It is for the court to say whether his silence is justified Rogers v. United
States, 1951, 340 U.S. 367, 71 S.Ct. 438, and to require him to answer if 'it
clearly appears to the court that he is mistaken.' Temple v. Commonwealth,
1880, 75 Va. 892, 899. However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim is usually
required to be established in court, he would be compelled to surrender the
very protection which the privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications of the question, in the
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setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because
injurious disclosure could result. The trial judge in appraising the claim 'must
be governed as much by his personal perception of the peculiarities of the
case as by the facts actually in evidence.'
Hoffman, supra at 486487.
Hoffman and its progeny establish that "in view of the liberal construction of the
provision [protecting against self-incrimination], after a witness has asserted the
privilege, he should be compelled to provide the requested information only if it "clearly
appears" to the court that the witness was mistaken in his invocation of the privilege."
(Emphasis added). In re Financial Svcs., supra at 399, citing Hoffman, at 486.
Finally, in order to preserve the privilege against self-incrimination, as EPSTEIN
has properly done is response to each discovery request, the privilege must be asserted
or one risks the loss or waiver of this liberty ensuring protection. See generally, U.S. v.
M, 846 F.2d 678, 690 (11th Cir. 1988)("First, it ignores the settled principle which
requires a witness to assert his Fifth Amendment rights. A witness who testifies at any
proceeding, instead of asserting his Fifth Amendment rights, loses the privilege. ... A
civil deponent cannot choose to answer questions with the expectation of later asserting
the Fifth Amendment.").
In the instant case, the privilege applies as Defendant EPSTEIN "has reasonable
cause to apprehend danger from a direct answer." The risk of incrimination resulting
from answering each of the interrogatories and requests for production is "substantial
and real" and "not trifling or imaginary haphazards of communication." See generally,
In re Financial Svcs., supra at 400. Based on the nature of Plaintiff's claims,
along with the ongoing scrutiny of the USA() in the criminal mailers, EPSTEIN has
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"reasonable grounds to believe that his responses to the discovery would furnish a link
in the chain of evidence needed to prove a crime against him. The very nature of the
claims brought and the discovery being sought by Plaintiff in order to attempt to prove
those claims establish a realistic possibility that the answer to an interrogatory or
production request could be used in a type of way to convict EPSTEIN of a crime or aid
in the development of other incriminating evidence that can be used at a criminal trial.
Under the circumstances of this case, the threat of criminal prosecution is not
imaginary. See Exhibits A and B to Plaintiffs Motion to Compel. This Court is well
aware of the "peculiarities" of this action as it has before it other civil actions against
EPSTEIN, all alleging similar underlying facts of sexual misconduct involving minors.
The allegations of this action and others entail EPSTEIN allegedly "recruiting" Plaintiff
and other minors to come to his home in Palm Beach to give him massages which
allegedly became sexually inappropriate in nature, and EPSTEIN in turn would pay the
minors. See Chapter 110 of Title 18, United States Code Annotated; and "predicate
acts" specified in 18 U.S.C. §2255.
Also applicable in upholding the assertion of Defendant's Fifth Amendment
privilege is the guarantee of effective assistance of counsel by the Sixth Amendment of
the U.S. Constitution. See Yarborough v. Gentry 124 S.Ct. 1, 540 U.S. 1, 157 L.Ed.2d
1 (2003)(Sixth Amendment guarantees criminal defendants effective assistance of
counsel.), on remand 381 F.3d 1219. The United States Constitutional guarantees are
applicable to the states through the Fourteenth Amendment. Obviously, EPSTEIN's
assertion of his constitutional privileges and protections is on the advice of counsel.
EPSTEIN continues to face criminal prosecution by the USAO until the expiration of the
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NPA; under the constitutional guarantee of effective assistance of counsel, he is entitled
to follow the recommended advice of his criminal defense attorney. See Exhibit A
hereto. A review of the complaint allegations and the circumstances of this case —
including multiple civil actions attempting to allege claims based upon sexual abuse and
exploitation of minors, parallel criminal matter under which EPSTEIN continues to face
prosecution for crimes based on the same allegations until the terms of the NPA have
expired and been fulfilled as determined by the USAO - establish that EPSTEIN's
invocation of his constitutional protections of the Fifth, Sixth and Fourteenth
Amendments be upheld; otherwise such constitutional protections would be rendered
meaningless.
Circuit Court, State of Florida, recently entered order upholding assertion of Fifth
Amendment and constitutional based protections in response to discovery.
Further requiring the sustaining of Defendant's assertions of his
constitutional protections, the 15th Judicial Circuit Court in and for Palm Beach County,
State of Florida, recently entered an order sustaining Defendant's assertion of his 5th, 6th
and 14th Amendment privileges and protections in response to Plaintiff A.C.'s request
for production in A.C. v. Epstein, Case No. 502008CA025129XXXXMB Al. The Order,
dated February 23, 2009, and the production requests and Defendant's responses are
attached hereto as Composite Exhibit C. (Compare Requests for Production Nos. 1,
2, 3, and 4 in the instant case with the production request no. 1 in Composite Exhibit C
hereto; compare requests nos. 20 and 21 in this case with nos. 2 and 3 in Comp. Ex. C;
and compare information sought in interrogatories nos. 3, 4, 5, 6, and 15 in this case
with information sought in request nos. 2 and 3 in Comp. Ex. C).
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B. Even if the Court were to agree with Plaintiffs assertion that Defendant has
asserted a "blank privilege" under the Fifth Amendment, under the facts and
circumstances of this case, such assertion would be proper.
Plaintiff claims that Defendant has improperly asserted a "blanket privilege" to the
discovery. As stated above, Defendant disagrees. Defendant evaluated each and
every discovery request in asserting applicable constitutional privileges and other
objections. The facts and circumstances of this case are such that in evaluating each of
the interrogatories and production requests on an individual basis, the constitutional
protections asserted by Defendant apply to each. The Court will note that the additional
objections raised are also tailored to each interrogatory and production request. Even
the Court's analysis of the discovery will be on an individualized basis. However, simply
for the sake of argument, as to Plaintiffs assertion that Defendant has made a "blanket
assertion," under the facts and circumstances of this case, such an assertion is proper.
In allowing a blanket assertion, Courts have recognized a narrow exception to the
rule that the assertion of the privilege must be to each specific question. The Courts,
including this Circuit, acknowledged "an exception ... (where,) based on its knowledge
of the case and of the testimony expected from the witness, (the trial court) can
conclude that the witness could 'legitimately refuse to answer essentially all relevant
questions." United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. Fla. 1980)); United
States v. Tsui 646 F.2d 365, 367-68 (9th Cir. 1981). This exception is narrow and is
applicable where the trial judge has "some special or extensive knowledge of the case
that allows evaluation of the claimed Fifth Amendment privilege even in the absence of
specific questions to the witness." Id. See also U.S. v.a 157 Fed.Appx. 215,
218 (11th Cir. Ga. 2005)("A district court must make a particularized inquiry, evaluating
whether the privilege applies with respect to each specific area that the questioning
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party wishes to explore. Melchor Moreno, 536 F.2d at 1049. The witness may be totally
excused from testifying only if the court finds that he could legitimately refuse to answer
essentially all relevant questions. United States v. Goodwin 625 F.2d 693, 701 (5th
Cir.1980).").
See also State of Washington v. DelGado, 18 P.3d 1141 (Wa. Ct. of App. Div. 2
2001)("There is a narrow exception allowing a blanket privilege where "based on its
knowledge of the case and of the testimony expected of the witness, [the trial court] can
conclude that the witness could legitimately refuse to answer essentially all relevant
questions. ... For the exception to apply, the trial judge must have 'some special or
extensive knowledge of the case that allows evaluation of the claimed ... privilege even
in absence of specific questions to the witness.").
C. Plaintiffs statement of the law in section IV, (pp. 6-7), of her motion is
incorrect under the circumstances. Contrary to Plaintiffs assertion, an adverse
Inference from invocation of the Fifth Amendment in a civil case is not always
permitted.
In section IV, (pp. 6-7), of Plaintiffs motion to compel, Plaintiffs general claim
that an adverse interest based on a defendant's invocation of the Fifth Amendment in a
civil case may be made is improper under the facts and circumstances of this case.
Plaintiff is correct as to the general rule that "adverse inferences may be drawn in the
civil context when Defendants invoke the privilege in refusing to testify in response to
probative evidence offered against them." F.T.C. v. Transnet Wireless Corp., 506
F.Supp.2d 1247, 1252, fn. 4 (S.D.Fla.,2007), citing Mitchell v. United States, 526 U.S.
314, 328, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). However, there exists a well
recognized exception to the general rule — "Courts may not draw adverse inferences,
however, if it is the sole basis for Plaintiff's prima facie case, or will cause the "automatic
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entry of summary judgment." See generally F.T.C., supra, at fn.4, citing United States
v. Premises Located at Route 13, 946 F.2d 749, 756 (11th Cir.1991) (citing Pervis v.
State Farm and Cas. Co. 901 F.2d 944, 948 (11th Cir.1990)). See also S.E.C. v. Keith
Group of Companies, Inc. 1998 WL 1670405 (S.D. Fla. 1998)("When a party is a
defendant in both a civil and criminal case and is forced to choose between waiving his
Fifth Amendment privilege ... or losing the civil case on summary judgment, an
exception to the general rule ... applies. In such a situation, the Court may not make an
adverse inference about the party's refusal to testify.") Accordingly, Defendant's
assertion that an adverse interest "under the circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and would
therefore violate the constitution," is both proper and required to be upheld at this time.
D. Plaintiffs Amended First Set of Interrogatories to Defendant
Listed below is each of the interrogatories propounded by Plaintiff. As noted
above, Defendant responded to each interrogatory separately in raising his
constitutional privileges and guarantees, and, in the alternative, raising specific other
applicable objections to each. See Exhibit A to Plaintiffs motion to compel.
No. 1. Identify all employees who performed work of services inside the Palm Beach
Residence.
No. 2. Identify all Employees not identified in response to interrogatory no. 1 who at any time
came to Defendant's Palm Beach Residence.
No. 3. Identify all persons who came to the Palm Beach Residence and who gave a massage
or were asked to give a massage to Defendant.
No. 4. Identify all persons who came to the New York Residence and who gave a massage or
were asked to give a massage to Defendant.
No. 5. Identify all persons who came to the New Mexico Residence and who gave a massage
or were asked to give a massage to Defendant.
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No. 6. Identify all persons who came to the St.l= Residence and who gave a massage or
were asked to give a massage to Defendant.
No. 7. List all the time periods during which Jeffrey Epstein was present in the State of Florida,
including for each the date he arrive and the date he departed.
No. 8. Identify all of Jeffrey Epstein health care providers in the past (10) ten years, including
without limitation, psychologists, psychiatrists, mental health counselors, physicians, hospitals
and treatment facilities.
No. 9. (Not at Issue.)' List all items in Jeffrey Epstein's possession in Palm Beach, Florida, at
any time during the period of these interrogatories, which were used or intended to be used as
sexual aids, sex toys, massage aids, and/or vibrators, and for each, list the manufacturer, model
number (if applicable), and its present location.
No. 10. Identify all persons who provide transportation services to Jeffrey Epstein,
whether as employees or independent contractors, including without limitation, chauffeurs and
aircraft crew.
No. 11. Identify all telephone numbers used by Epstein, including cellular phones and
land lines in any of his residences, by stating the complete telephone number and the name of
the service provider.
No. 12. Identify all telephone numbers of employees of Epstein, used in the course or
scope of their employment, including cellular phones and land lines in any of his residences, by
stating the complete telephone number and the name of the service provider.
No. 13. List the names and addresses of all persons who are believed or known by you,
your agents, or your attorneys to have any knowledge concerning any of the issues in this
lawsuit; and specify the subject matter about which the witness has knowledge.
No. 14. State the name and address of every person known to you, your agents, or your
attorneys who has knowledge about, possession, or custody, or control of, any model, plat,
map, drawing, motion picture, videotape or photograph pertaining to any fact or issue involved
in this controversy; and describe as to each, what item such person has, the name and address
of the person who took or prepared it, and the date it was taken or prepared.
No. 15. Identify all persons who have made a claim, complaint, demand or threat against
you relating to alleged sexual abuse or misconduct on a minor and for each provide the
following information:
a. The person's full name, last known address and telephone number;
b. The person's attorney, if represented;
c. The date of the alleged incident(s);
d. If a civil case has been filed by or on behalf of the person, the case number and
identifying information.
' Fn. 4 of Plaintiff's motion states — "Plaintiff does not challenge at this time Defendant's Fifth
Amendment privilege in response to interrogatory no. 9, which seeks information of Defendant's
sexual aids."
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No. 16. State the facts upon which you intend to rely for each denial of a pleading
allegation and for each affirmative defense you intend to make in these cases.
No. 17. Identify all witnesses from whom you have obtained or requested a written,
transcribed or recorded statement relating to any issue in these cases, and for each, in addition
to the witness's identifying information, state the date of the statement and identify the person
taking the statement.
(Emphasis added).
Defendant will address interrogatories nos. 3, 4, 5, 6, 13, 14, 15, 16, and 17,
above, as the analysis as to the application of the constitutional privileges and
protections is straightforward. Nos. 3 through 6 ask Defendant to identify anyone who
gave "massages" or were asked to give "massages" to him. Clearly, any answer to
these interrogatories, involve compelled statements that would furnish a link in the chain
of evidence needed to prosecute the Defendant in future criminal proceedings or even
support a criminal conviction. These interrogatories seek the precise information that
the USAO investigated and continues to scrutinize. See Exhibit A hereto.
Any answer to no. 15, which seeks information "relating to alleged sexual abuse
or misconduct on a minor," on its face would also lead to incriminating evidence
protected under the Fifth Amendment privilege. The same is true for no. 16 — which
seeks "facts upon which you intend to rely for each denial of a pleading allegation and
for each affirmative defense," and Nos. 13, 14, and 17 which seek to compel EPSTEIN
to list any persons or witnesses in 13 "having any knowledge concerning any of the
issues in this lawsuit," in 14 having "knowledge about, possession, or custody, or control
of, any model, plat, map, drawing, motion picture, videotape or photograph pertaining to
any fact or issue involved in this controversy," and in 17 "whom you have obtained or
requested a written, transcribed or recorded statement relating to any issue in these
cases." In answering no. 16, Defendant would be compelled to testify as to his version
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of the facts, and, in asserting affirmative defenses, he would further be compelled to
admit Plaintiffs version of the facts. In listing such person or witness, the Defendant is
further compelled to describe the subject matter, nature of the items and or statements
of such witness or person. Again, the allegations of this action are such that in
answering these interrogatories, Defendant is being compelled to incriminate himself in
crimes. By answering the specified interrogatories Defendant is being compelled to
testify as to the issues and facts not only asserted in Plaintiffs complaint, but also to
facts which present a real and substantial danger of self-incrimination. Again, the
information sought all relate to claims of sexual abuse and exploitation of a minor. (See
Chapter 110 of Title 18, United States Code Annotated; and "predicate acts" specified in
18 U.S.C. §2255, and 18 U.S.C. §2422).
Any answer to nos. 1 and 2 would also be compelled testimony that "tends to
show that the witness himself (EPSTEIN) committed a crime" based on the nature of the
allegations. As noted above, Plaintiff alleges that at least one of EPSTEIN's
employees, was part of the scheme or plan of sexual misconduct,
exploitation and abuse of the "girls." No. 1 is asking for any employee who performed
work or services, and no. 2 is asking EPSTEIN to testify as to anyone who came to his
Palm Beach mansion. Such compelled testimony is protected under the Fifth
Amendment as the answers "would furnish a link in the chain of evidence needed to
prosecute the claimant for a crime." Answering the questions as to who came and went
from his Palm Beach mansion would provide a "'lead or clue' to evidence having a
tendency to incriminate." See also 18 U.S.C. 2422, Coercion and Enticement. This
analysis also applies to interrogatory nos. 7 and 9 which seek, respectively, "all the time
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periods during which Jeffrey Epstein was present in the State of Florida, including for
each the date he arrive and the date he departed," and "all persons who provide
transportation services to Jeffrey Epstein, whether as employees or independent
contractors, including without limitation, chauffeurs and aircraft crew." Plaintiff alleges a
time period of 2004-05 as to when the alleged to when the sexual misconduct, including
sexual assault, of a minor took place in Palm Beach, Florida. Plaintiff also alleges that
EPSTEIN engaged in the same "scheme and plan" against minor girls at his other
places of residence. Again, EPSTEIN's answer as to his travels to and from Florida,
and within Florida, would be a link in the chain of evidence needed to convict him of a
crime.
The privilege against self-incrimination also applies to Nos. 11 and 12 which
seek, respectively, "all telephone numbers used by Epstein, including cellular phones
and land lines in any of his residences, by stating the complete telephone number and
the name of the service provider," and "all telephone numbers of employees of Epstein,
used in the course or scope of their employment, including cellular phones and land
lines in any of his residences, by stating the complete telephone number and the name
of the service provider." Again, such compelled testimony would self-incriminate
EPSTEIN based on the elements required to establish a violation of the criminal statute
18 U.S.C. §2422. Such information would be a link in the chain of evidence needed to
prosecute EPSTEIN for a crime.
Finally, the compelled testimony sought in no. 8 - "all of Jeffrey Epstein health
care providers in the past (10) ten years, including without limitation, psychologists,
psychiatrists, mental health counselors, physicians, hospitals and treatment facilities,"
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could also lead to a link in the chain of evidence to convict EPSTEIN based on the
allegations which are criminal in nature — sexual misconduct with minors, and a plan
and scheme to "recruit" such minors to fulfill Epstein's "sexual preference and
obsession." See ¶8 of complaint — "Upon information and belief Epstein has a sexual
preference and obsession for underage minor girls."
As explained in Hoffman EPSTEIN is not required to "prove the hazard in the
sense in which a claim is usually required to be established in court." The United States
Supreme Court recognized placing such a requirement on a person asserting his
constitutional privilege is in effect tantamount compelling him "to surrender the very
protection which the privilege is designed to guarantee." Under the facts and
circumstances of this case, it is evident from the implications of each of the
interrogatories or an explanation of why they can't be answered "might be dangerous
because injurious disclosure might result." Id.
Accordingly, under applicable law and the facts of this case, Defendant's
assertion of the constitutional privilege and guarantee under the 5th, 6th and 14th
Amendments of the United States Constitution are required to be upheld.
E. Plaintiffs First Production Request To Defendant
The constitutional protections are equally applicable to the request for production
propounded on Defendant by Plaintiff. See Exhibit B to Plaintiffs motion to compel.
The requests are as follows -
Request No. 1. The list provided to you by the U.S. Attorney of individuals whom the U.S.
Attorney was prepared to name in an Indictment as victims of an offense by Mr. Epstein
enumerated in 18 U.S.C. §2255.
Request No. 2. All documents referring or relating to the United States' agreement with
Defendant to defer federal prosecution subject to certain conditions, including without limitation,
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the operative agreement between Defendant and the United States and all amendments,
revisions and supplements thereto.
Request No. 3. All documents referring or relating to Defendant's agreement with the
State of Florida on his plea of guilty to violations of Florida Criminal Statutes, including without
limitation, the operative plea agreement and any amendments, revisions and supplements
thereto.
Request No.4. All documents obtained in discovery or investigation relating to either the
Florida Criminal Case or the Federal Criminal Case, including without limitation, documents
obtained from any federal, state, or local law enforcement agency, the State Attorney's office
and the United States Attorney's office.
Request No. 5. All telephone records and other documents reflecting telephone calls made by
or to Defendant, including without limitation, telephone logs and message pads.
Request No. 6. All telephone records and other documents reflecting telephone calls made by
or to Defendant, including without limitation, telephone logs and message pads, reflecting
telephone calls made by or to employees.
Request No. 7. All surveillance videos, slides, film, videotape, digital recording or other audio
or video depiction or image of the Palm Beach Residence.
Request No. 8. All documents referring or relating to Plaintiff Jane Doe No. 2, including without
limitation, web pages, social networking site pages, correspondence, videotapes and
audiotapes.
Request No. 9. (Not at issue).2 All statements taken, transcribed or recorded from any person
referring or relating to Defendant's sexual conduct, massages given to Defendant or any issue
in these cases.
Request No. 10. All documents referring to or relating to air travel and aircraft used by
Defendant, including without limitation, flight logs and flight manifests.
Request No. 11. Any and all documents referring to or relating to modeling agencies, including
but not limited to documents relating to or reflecting communications with female models.
Request No. 12. (Not at Issue). All photographs, videotapes, digital images and other
documents depicting or showing females who, at the time thereof, were under the age of 21,
which were taken or created by or for Defendant and not intended for sale commercially to the
public.
Request No. 13. (Not at Issue.) All photographs and painting of females which were displayed
in any of Defendants homes or residences in the time frame of these requests, including
without limitation, photographs in standing or sitting frames or wall frames.
2 Plaintiff concedes that the act of producing items in response to request no. 9, conceming
witness statements, and requests nos. 12-13, concerning photographs or images of females,
may implicate the Fifth Amendment." Plaintiffs motion, p. 5, fn. 6.
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Request No. 14. Any and all documents consisting of, referring or relating to communications
between Jeffrey Epstein and , including, but not limited to, letters, notes, text
messages, messages on social networking sites, and e-mails.
Request No. 15. Any and all nsisting of, referring or relating to communications
between Jeffrey Epstein and , including, but not limited to, letters, notes, text
messages, messages on social networking sites, and e-mails.
Request No. 16. Any and all documents consisting of, referring or relating to communications
between Jeffrey Epstein and L , including, but not limited to, letters, notes, text
messages, messages on social networking sites, and e-mails.
Request No. 17. Any and all documents consisting of, referring or relating to communications
between Jeffrey Epstein and Ghislaine Maxwell, including, but not limited to, letters, notes, text
messages, messages on social networking sites, and e-mails.
Request No. 18. Any and all documents and photographs placed by Defendant at any time in
the period of these requests on a social networking website, including without limitation,
Facebook.com and MySpace.com.
Request No. 19. Any and all documents reflecting or consisting of communications between
Jeffrey Epstein and MC2 Models or Jean-Luc Brunel, relating or referring to females coming into
the United States from other countries to pursue a career in modeling, including, but not limited
to, letters, notes and e-mails.
Request No. 20. Any and all documents referring or relating to gifts or loans to females under
the age of 21, including, but not limited to, notes, receipts and car rental agreements.
Request No. 21. Any and all personal calendars or schedules of or for Jeffrey Epstein from
January 1, 2003 to the present.
Request No. 22. All documents written by Jeffrey Epstein consisting of personal thoughts,
feelings or descriptions of events, incidents or occurrences in Defendant's life, including without
limitation, any diaries of Jeffrey Epstein.
Request No. 23. All documents referring to or relating to Jeffrey Epstein's purchase or
consumption of prescription medicine.
As discussed in the supporting memorandum law herein, it is well settled that the
Fifth Amendment privilege against self-incrimination also encompasses situations as
here where the act of production itself involves a testimonial compulsion. Hubbell
supra. In responding to each request, EPSTEIN would be compelled admit that such
documents existed, admit that the documents were in his possession or control, and
were authentic. In other words, the very act of production of the category of documents
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requested would implicitly communicate "statements of fact." Hubbell supra. Hoffman,
supra. The act of production might not only provide evidence to support a conviction,
but also a link in the chain of evidence for prosecution. Such compulsion to produce is
the same as being compelled to testify. The acts of EPSTEIN in being required to
produce the requested documents imply assertions of fact — admitting the documents
exist, admitting the documents are in his possession or control, and admitting the
documents are authentic. Again, in reading each of the production requests in Nos. 1,
2, 3, 4, 5, 6, 7, 8, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23, (like the
interrogatories), it is clear that the very act of production of such documents could
implicate EPSTEIN in a crime.
As noted above, EPSTEIN is constitutionally entitled to follow the advice of
counsel in asserting the applicable Fifth Amendment privilege under the guarantee of
effective assistance of counsel. Accordingly, based on the facts and circumstances of
this case, and under applicable law, Defendant's assertion of the protections afforded
under the 5th, 61h, and 14'h Amendments of the United States Constitution are required
to be upheld.
ii. Defendant's obiections made in addition to the constitutional based
protections are required to be upheld.
A. Constitutional issues are required to be addressed first.
Obviously, the constitutional issues raised in Defendant's response permeate not
only discovery, but the entire action itself. Defendant would suggest to the Court that
the constitutional issues be decided before the additional objections are addressed. 3 In
fact, in arguing certain of the additional objections, Defendant's constitutional rights
3 Should this Court overrule Defendant's constitutional based privileges and guarantees,
Defendant will likely take an immediate appeal of such ruling.
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under the 5th, 6th and 14th Amendments are clearly implicated. In setting forth factual
reasons to support the additional objections, Defendant is being compelled to testify in
response to a specific discovery request, thus, impeding his privilege against self-
incrimination and guarantee of effective assistance of counsel. The same is true if
Defendant is required to prepare privilege logs. (In section IV of her motion, Plaintiff
recognized, in addressing Defendant's assertion that an adverse inference would be
improper, that "It is first necessary to determine whether the Fifth Amendment privilege
is validly asserted in response to particular questions."). Thus, Defendant also requests
that should this Court rule that the Fifth Amendment does not apply to certain of the
discovery requests, that Defendant be given an additional 20 days from the date of the
order thereon in which to assert other objections and privileges.
In alternative and addition to the applicable constitutional based protections,
Defendant also raised objections to each of the interrogatories and requests for
production. (See sections V, VI, and VII, pp. 7-12, of Plaintiff's motion to compel).
Defendant will address Plaintiffs arguments pertaining to the additional objections in the
order presented in Plaintiff's motion.
B. Interrogatory No. 8, Production Request No. 23
Section V. A. of plaintiffs motion pertains to interrogatory no. 8 -
Identify all of Jeffrey Epstein health care providers in the past (10) ten years, including
without limitation, psychologists, psychiatrists, mental health counselors, physicians,
hospitals and treatment facilities.
In addition to the constitutional protections, Defendant also stated —
... In addition to and without waiving his constitutional privileges, Defendant also objects
as the interrogatory is overbroad and seeks information that is neither relevant to the
subject matter of the pending action nor does it appear reasonably calculated to lead to
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the discovery of admissible evidence. In addition, such information is privileged pursuant
to Rule 501, Fed. Evid., and §90.503, Fla.Evid. Code. In addition, such information is
protected by the provisions of the Health Insurance Portability and Accountability Act
(HIPAA).
Federal Rule of Evidence 401 provides that - "'Relevant evidence" means
evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be
without the evidence." Pursuant to Rule 26(b)(1), the scope of discovery is as follows —
Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any nonprivileged matter that is relevant to any party's
claim or defense--including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and location of
persons who know of any discoverable matter. For good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action. Relevant
information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence. All discovery is subject to
the limitations imposed by Rule 26(b)(2)(C).
Plaintiffs complaint alleges a time period of 2004-05 as to when the alleged
sexual misconduct of Defendant occurred. Plaintiffs request seeks to have EPSTEIN
list "all health care providers" and "hospitals and treatment facilities" over a "ten year
period." On its face, the interrogatory is overbroad as it seeks information over a 10
year period that is neither relevant nor does it "appear reasonably calculated to lead to
the discovery of admissible evidence." EPSTEIN's physical health is not in issue in this
matter. Whether or not he was treated for the flu over the past ten years is not relevant
to any party's claim or defense in this matter. The same is true for whether or not
Defendant received treatment for a physical ailment at a hospital or facility over a 10
year period. Plaintiff fails to tailor her question such that it can be determined what type
of information she is seeking regarding "health care providers" and "hospitals and
treatment facilities." The 10 year period is overbroad as it seeks information
approximately 5 years prior to and four years after the alleged incident.
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As to "psychologists, psychiatrists, mental health counselors," and the "hospitals
and treatment facilities" where Defendant may or may not have received treatment from
such professionals, such information would be protected under Fed. Evid. Rule 501 and
§90.503, Fla.R.Evid. Rule 501 provides —
Except as otherwise required by the Constitution of the United States or provided by
Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory
authority, the privilege of a witness, person, government, State, or political subdivision
thereof shall be governed by the principles of the common law as they may be
interpreted by the courts of the United States in the light of reason and experience.
However, in civil actions and proceedings, with respect to an element of a claim or
defense as to which State law supplies the rule of decision, the privilege of a witness,
person, government, State, or political subdivision thereof shall be determined in
accordance with State law.
(Emphasis added).
Plaintiff alleges diversity jurisdiction, and thus, state law of Florida controls
application of the privilege. 2ntl Am. Complaint, ¶5. The elements of Plaintiffs alleged
claims in Counts I - Sexual Battery and Counts II — Intentional Infliction of Emotional
Distress are also controlled by state law. Erie R.Co. v. Tompkins, 58 S.Ct. 817 (1938).
Accordingly, the privileges recognized under state law apply to this action under Rule
501. See, for example, 1550 Brickell Associates v. Q.B.E. Ins. Co. 253 F.R.D. 697,
699 (S.D. Fla. 2008)("Attorney-client privilege is governed by state law in diversity
actions.").
§90.503(2), Fla. Stat., provides —
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from
disclosing, confidential communications or records made for the purpose of diagnosis
or treatment of the patient's mental or emotional condition, including alcoholism and
other drug addiction, between the patient and the psychotherapist, or persons who are
participating in the diagnosis or treatment under the direction of the psychotherapist.
This privilege includes any diagnosis made, and advice given, by the psychotherapist
in the course of that relationship.
As summarized in C.L. v. Judd, 993 So.2d 991, 995 (2d DCA Fla. 2007):
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Under the psychotherapist-patient privilege, a patient has a privilege to refuse
to disclose confidential information or records made for the purpose of
diagnosis or treatment of mental conditions, including any diagnoses made by
the psychotherapist. § 90.503(2), Fla. Stat. (2005); see Pauker v. Olson, 834
So.2d 198, 200 (Fla. 2d DCA 2002). The psychotherapist-patient privilege does
not apply: (1) during involuntary commitment proceedings, (2) when there is a
court-ordered mental examination, or (3) when the patient raises and relies on
the issue of his or her mental condition in litigation as part of any claim or
defense. § 90.503(4); Roberson, 884 So.2d at 980; State v. Famiglietti, 817
So.2d 901, 903 (Fla. 3d DCA 2002). The privilege does not allow the invasion of
a patient's privileged communications with his or her psychotherapist.
Roberson, 884 So.2d at 979.
None of the three situations listed as exceptions to the privilege above exist in the
present case to make the privilege inapplicable.
Plaintiff's position is that the protection afforded under §90.503, Fla. Stat., does not
apply "in a case of child abuse under Florida Statute §39.204." See endnote 2 for full
text of §39.204, Fla. Stat.2 (¶'s Motion, p. 8-9). See Carson v. 466 So.2d
1188, 1192 (Fla. 41h DCA 1985); and Doherty v. John Doe No. 22, 957 So.2d 1267 (4111
DCA 2007). A reading of these cases establishes that §39.204 does not provide
Plaintiff with a carte blanche access to Defendant's medical history. The Court is
required to hold an in camera inspection to determine if the information sought by
Plaintiff relates to "communications involving known or expected child abuse." Id.
As stated above, on its face the interrogatory is overbroad and encompasses
information that has no relevance to the claims or defenses nor is it reasonably
calculated to lead to the discovery of admissible evidence. Compelling Defendant to
identify each and every health care provider, including psychologists, psychiatrists,
mental health counselors, and hospital or treatment facility over the past ten year
period, is not proper at this time. Plaintiff should be required to limit the information
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sought, as well as the time period, in her interrogatory, thus allowing the Defendant and
Court to determine whether such information is relevant and discoverable.
As to Defendant's HIPAA (Health Insurance Portability and Accountability Act)
objection, as noted in the case cited in Plaintiffs motion, v. Woodford, 2007 WL
309485 (E.D. Cal. 2007), (p. 9), HIPPA institutes procedural safeguards to protect the
privacy of an individual's medical information and history. In the context of HIPAA,
Courts have recognized three methods of health care discovery (assuming it's relevant)
in civil litigation: (1) Obtaining a patient authorization that complies with the
requirements and criteria, tailored to the specific case, of HIPAA as set forth in 45
C.F.R. §164.508; (2) Court Order, which also complies with the requirements of HIPAA
ensuring that the privacy and confidentiality of the information is protected; and (3)
Subpoena or discovery request, which again comply with the strictures of HIPAA,
including that the person whose records are being sought has been given proper notice.
See Handbook of Federal Civil Discovery And Disclosure (2d Edition), Chap. 18, Sect.
A - Health Insurance Portability and Accountability Act (HIPAA), §18.3 — Discovery of
health care information in civil litigation; and Graham v. Dacheikh 991 So.2d 932, at fn.
3 (2d DCA Fla. 2008)("Even under HIPAA, ..., if the records are produced during normal
discovery they are typically produced in a manner that restricts the persons who may
access the documents and requires their return at the end of the litigation. See 45
C.F.R. §164.512(e).").
In production request no. 23, Plaintiff seeks — "All documents referring to or relating
to Jeffrey Epstein's purchase or consumption of prescription medicine." On its face, this
production request is over broad and seeks non-relevant information. For example,
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whether or not EPSTEIN takes prescription medicine for (purely as an example and for
argument) blood pressure or cholesterol control has absolutely no relevance to this
action.
Accordingly, EPSTEIN's objections to interrogatory no. 8 and production request
no. 23 are required to be upheld. Plaintiff is not entitled to carte blanche discovery of
Defendant's medical information.
C. Overbroad. relevance obiections to discovery.
As to Plaintiffs argument regarding Defendant's objections based on relevancy
and the over-breadth of Plaintiffs discovery requests, (Part VI. A, pp. 10-11, of ¶'s
Motion To Compel), in her motion Plaintiff represents that she is seeking the discovery
for a time period beginning January 1, 2003 to the present. As to interrogatory nos. 1,
2, 3, 4, 5, 6, 7, 8, 10, 11, and 12, Defendant disagrees that time period proposed by
Plaintiff is reasonable. Plaintiffs complaint alleges that the conduct involving her took
place in 2004-05. The scope and breadth of these interrogatories evidences that
information sought has absolutely no relevance and is not reasonably calculated to lead
to the discovery of admissible evidence. The same is true for production request nos.
5, 6, 7, 10, 11, 18, 20, 21, 22, and 23. As discussed more fully below, the length of the
time period, along with the scope and breadth of the information and items sought,
makes such requests improper under the rules governing discovery.
Without waiving any of the other alternative and additional objections asserted,
Defendant does not disagree with the time period of January 1, 2003 to present as to
interrogatory nos. 13, 14, 15, 16, and 17; and production request nos. 1, 2, 3, 4, 14,
15, 16, and 17. Defendant addresses the additional alternative objections below.
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Plaintiffs motion to compel fails to address each of the discovery requests on an
individual basis with respect to the objections asserted. A reading of each of the
discovery requests, set forth above herein, establishes that each of the interrogatories
and production requests is overbroad on its face and, thus, seeks non-relevant
information. All of the interrogatories and production requests are phrased such that
they encompass "all persons," "all Employees," "all telephone numbers," "all
documents," "any and all," and so on. Contrary to Plaintiffs assertion, the definition of
"employee" is on its face over broad and encompasses non-relevant information. (pp.
11-12 of Plaintiffs motion). Plaintiff should be required to restrict the information that is
sought to the issues relevant to this action and the claims asserted by her and defenses
to those claims.
D. Work Product; Attorney Client Privilege
Plaintiff asserts that Defendant failed to provide a privilege log in asserting his
objections based on attorney-client and work product privileges to interrogatories nos.
13, 14, and 17, and production requests nos. 4 - 8 and 10 - 23. First, a reading of the
particular discovery requests reveals that the encompass attorney-client and work
product privileged material. Secondly, as set forth above herein, in being compelled to
create a privileged log is in essence compelled testimony to which Defendant's
constitutional protections would apply. Again, as stated previously, it makes judicial
sense to decide the constitutional issues first, before deciding the additional objections
to the discovery requests.
E. Rules 408 and 410. Fed. Evid. Code; 490.410, Fla. Stat - Production
requests nos. 1 — 5.
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Production requests nos. 1 — 5 set forth above herein, all pertain to the
negotiation and eventual entering into of a Non-Prosecution Agreement (NPA) with the
United States Attorney's Office (USAO) for the Southern District of Florida. See part I
above herein. Again, the constitutional issues raised in Defendant's response permeate
these discovery requests. The full text of Federal Evidence Rules 408 and 410, and
Florida Statute §90.410, are set forth in endnote 3.3 Under the protections afforded by
these evidentiary rules such documents are not subject to discovery.
F. Third Party Privacy Rights
In production requests nos. 1, 2, 3, 4, 5, 6, 7, 11, 14, 15, 16, 17, 18, 19, 20, 21,
and 22, Defendant has raised the additional objection that the privacy rights of third
parties are implicated. See specified requests. As noted by the United States Supreme
Court in Eisenstadt v. Baird, 405 U.S. 438, 454, 92 S.Ct. 1029, 1038, at fn. 10 (1972):
In Stanley, 394 U.S., at 564, 89 S.Ct., at 1247, the Court stated:I(A)Iso
fundamental is the right to be free, except in very limited circumstances, from
unwanted governmental intrusions into one's privacy." The makers of our
Constitution undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of man's spiritual nature, of his
feelings and of his intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They sought to protect
Americans in their beliefs, their thoughts, their emotions, and their sensations.
They conferred, as against the Government, the right to be let alone-the most
comprehensive of rights and the right most valued by civilized man.' [Citations
omitted].
The fundamental right of privacy is not only guaranteed under by the Fourteenth
Amendment of the United States Constitution, but also under the Constitution of the
State of Florida, Art. I, Sect. 23. As summarized by the Florida Supreme Court in
Shaktman v. State 553 So.2d 148, 150-51 (Fla. 1989):
The right of privacy, assured to Florida's citizens, demands that individuals be
free from uninvited observation of or interference in those aspects of their lives
which fall within the ambit of this zone of privacy unless the intrusion is
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warranted by the necessity of a compelling state interest. In an opinion which
predated the adoption of section 23, the First District aptly characterized the
nature of this right.
A fundamental aspect of personhood's integrity is the power to control
what we shall reveal about our intimate selves, to whom, and for what
purpose.
Bryon, Harless, Schaffer, Reid & Assocs., Inc. v. State ex rel, Schellenberg,
360 So.2d 83, 92 (Fla. 1st DCA 1978), quashed and remanded on other
grounds, 379 So.2d 633 (Fla.1980). Because this power is exercised in varying
degrees by differing individuals, the parameters of an individual's privacy can be
dictated only by that individual. The central concern is the inviolability of one's
own thought, person, and personal action. The inviolability of that right assures
its preeminence over "majoritarian sentiment" and thus cannot be universally
defined by consensus.
(Emphasis added).
Clearly, the nature of the questions and production requests identified would
require EPSTEIN to identify third parties and necessarily thwart such individuals' rights
to assert their constitutional right of privacy as guaranteed under the United States and
Florida Constitutions. See generally Eisenstadt v. Baird, supra at 454-455 (The right
encompasses privacy in one's sexual matters and is not limited to the marital
relationship.).
Ill. Conclusion
Under applicable law and the facts and circumstances of this case, Defendant's
assertions of his constitutional privileges and guarantees are required to be upheld. To
rule otherwise would render EPSTEIN's constitutional protections meaningless. Also,
the constitution issues so permeate this action that this Court should first decide those
issues before deciding the merits of any additional objections raised by EPSTEIN.
EPSTEIN is between the proverbial "rock and a hard place" in asserting is constitutional
guarantees and then being compelled to make factual arguments regarding the
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application of his additional objections. EPSTEIN's additional objections as discussed
herein are also required to be upheld.
WHEREFORE Defendant requests that this Court deny Plaintiff's motion to
compel and uphold EPSTEIN's assertion of his constitutional protections and, in the
alternative or in addition to, uphold his addi Ana, objec laintiff's discovery
requests.
By:
ROBER ON ,I-'., ESQ.
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with
the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record identified on the following Service List in the
manner specified by CM/ECF on this 25th day of March 2009:
Stuart S. Mermelstein, Esq.
Adam D. Horowitz, Esq.
Mermelstein & Horowitz, P.A.
18205 Biscayne Boulevard
Suite 2218
Miami, FL 33160
[Phone Redacted]
Fax: [Phone Redacted]
ssma.sexabuseattomey.com
ahorowitz(&sexabuseattomev.com
Counsel for Plaintiff Jane Doe #3
Jack Alan Goldberger
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
[Phone Redacted]
Fax: [Phone Redacted]
jagesq(&bellsouth.net
Co-Counsel for Defendant Jeffrey Epstein
Resp ully ubmitt
By:
RO RT D. C R., ESQ.
Florida Bar No. 2 16
rcrit bciclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike belclaw.com
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
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West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Co-Counsel for Defendant Jeffrey Epstein)
' Title 18. Crimes and Criminal Procedure
Part I. Crimes
Chapter 117. Transportation for Illegal Sexual Activity and Related Crimes
§ 2422. Coercion and enticement
(a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in
interstate or foreign commerce, or in any Territory or Possession of the United States, to
engage in prostitution, or in any sexual activity for which any person can be charged with a
criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than
20 years, or both.
(b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within
the special maritime and territorial jurisdiction of the United States knowingly persuades,
induces, entices, or coerces any individual who has not attained the age of 18 years, to engage
in prostitution or any sexual activity for which any person can be charged with a criminal
offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10
years or for life.
2006 Amendments. Subsec. (b). Pub.L. 109-248, § 203, struck out "not less than 5 years and
not more than 30 years" and inserted "not less than 10 years or for life".
2003 Amendments. Subsec. (a). Pub.L. 108-21, § 103(a)(2)(A), struck out "10" and inserted
"20".
Subsec. (b). Pub.L. 108-21, § 103(a)(2)(B), struck out "15" and inserted "30".
Pub.L. 108-21, § 103(b)(2)(A)(i), struck out ", imprisoned" and inserted "and imprisoned not less
than 5 years and".
Pub.L. 108-21, § 103(b)(2)(A)(ii), struck out °, or both" at end of subsec. (b).
2 39.204. Abrogation of privileged communications in cases involving child abuse,
abandonment, or neglect
The privileged quality of communication between husband and wife and between any
professional person and his or her patient or client, and any other privileged communication
except that between attorney and client or the privilege provided in s. 90.505, as such
communication relates both to the competency of the witness and to the exclusion of
confidential communications, shall not apply to any communication involving the
perpetrator or alleged perpetrator in any situation involving known or suspected child
abuse, abandonment, or neglect and shall not constitute grounds for failure to report as
required by s. 39.201 regardless of the source of the information requiring the report, failure to
cooperate with law enforcement or the department in its activities pursuant to this chapter, or
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failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or
neglect.
(Emphasis added).
3 Relevancy and Its Limits
Rule 408. Compromise and Offers to Compromise
(a) Prohibited uses. —Evidence of the following is not admissible on behalf of any party, when
offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or
amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish—or accepting or offering or promising to accept—
a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when
offered in a criminal case and the negotiations related to a claim by a public office or agency in
the exercise of regulatory, investigative, or enforcement authority.
(b) Permitted uses.—This rule does not require exclusion if the evidence is offered for purposes
not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's
bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a
criminal investigation or prosecution.
CREDIT(S)
(Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1933; Apr. 12, 2006, eff. Dec. 1, 2006).
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made the plea or was a participant in the
plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nob contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of
Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement made
in the course of the same plea or plea discussions has been introduced and the statement
ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for
perjury or false statement if the statement was made by the defendant under oath, on the record
and in the presence of counsel.
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CREDIT(S)
(Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1933; Pub.L. 94-149, § 1(9), Dec. 12, 1975, 89 Stat.
805; Apr. 30, 1979, eff. Dec. 1, 1980.)
Florida Evidence Code
90.410. Offer to plead guilty; nolo contendere; withdrawn pleas of guilty
Evidence of a plea of guilty, later withdrawn; a plea of nob contendere; or an offer to plead
guilty or nob contendere to the crime charged or any other crime is inadmissible in any civil or
criminal proceeding. Evidence of statements made in connection with any of the pleas or offers
is inadmissible, except when such statements are offered in a prosecution under chapter 837.
CREDIT(S)
Laws 1976, c. 76-237, § 1; Laws 1978, c. 78-361, § 8.
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