Court Records
Case 9:08-cv-80380-KAM Document 101 Entered on FLSD Docket 05/06/2009 Page 1 of 12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80380-MARRAa
JANE DOE NO. 4,
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
MOTION TO COMPEL AND/OR IDENTIFY JANE DOE #4 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'
Defendant, JEFFREY EPSTEIN ("Epstein" or "Defendant"), by and
through his undersigned attorneys, hereby requests that this Court enter an order
identifying in the style of this case the complete legal name of the Plaintiff, JANE
DOE #4 ("JANE DOE"), to substitute her complete legal name in this case in
place of "JANE DOE" and, equally important, allowing Defendant to identify her in
various subpoenas that Epstein must serve so Epstein can defend this case or,
alternatively, Motion to Dismiss Entire Action Sua Sponte. In support, Mr.
Epstein states as follows:
2 Several of the discovery responses attached to this Motion and to the
companion "Motions to Identify" filed in other related matters are
markedly different. Therefore, each requires the court's attention on
an individual basis.
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I. Motion And Incorporated Memorandum Of Law
a. Background
1. On April 14, 2008, Plaintiff, a 20-year-old female, filed this action
against Epstein.
2. On February 27, 2009, Plaintiff filed her Second Amended
Complaint against Epstein, which alleges three causes of action against him:
Count I — Sexual Assault and Battery; Count II — Intentional Infliction of Emotional
Distress; and Count III — Coercion and Enticement to Sexual Activity in violation
of 18 U.S.C. §2422.
3. The Second Amended Complaint appears to raise both Federal
and Florida State substantive issues (DE 62).
4. Plaintiff alleges, among other things, that she is entitled to money
damages pursuant to 18 U.S.C.A. §2422 and 2255 (in the wherefore clause) and
by virtue her claims that Epstein sexually battered her and caused her emotional
distress. Plaintiff alleges separate counts against Mr. Epstein, on which he must
conduct discovery to defend this case.
5. In particular, JANE DOE claims, in Count I for sexual battery, that
she has and will suffer ". . .severe and permanent traumatic injuries, including
mental, psychological and emotional damages." ¶22, 2nd Am. Comp., DE 62.
In Count II for Sexual Battery, plaintiff claims entitlement to recover for ". .
.mental or sexual injury. . .mental or emotional health . . ." ¶26, 2nd Am. Comp.,
DE 62, and ". . .severe mental anguish and pain." ¶28, 2nd Am. Comp., DE 62
In Count III for Coercion and Enticement to Sexual Activity in violation of 18
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U.S.C. §2422, plaintiff claims entitlement to recover for ". . .personal injury,
including mental, psychological and emotional damages" ¶33, 2nd Am. Comp.,
DE 62. Plaintiff also claims entitlement to "punitive damages" and "actual and
compensatory damages." DE 62. See also Exhibit "A", Interrogatory Response
Number 9.
6. Epstein has a constitutional due process right to defend himself and
to seek the production of information that will assist in his defense of the
allegations in the 2nd Amended Complaint. In this case, Plaintiff's counsel
objected to Epstein serving subpoenas on Plaintiffs treating physicians and other
third parties. Thus, this motion seeks to identify JANE DOE in the style of this
case, to identify JANE DOE in various third-party subpoenas for discovery
purposes and, alternatively, to dismiss this entire action sua sponte. The
undersigned's experience in "Jane Doe" lawsuits is that once a Plaintiff is
identified, other individuals come forward in the discovery phase with information
which often directly contradicts allegations as to the events and damages. For
instance, witnesses may testify that Plaintiff was paid by others for similar sexual
acts she claims Mr. Epstein forced upon her or that she willingly participated in
certain act(s) that would negate or lessen her damages. This goes directly to
Plaintiff's damage claim.
7. Likewise, subpoenas must be issued to third-party treaters and
current and former employers, and those subpoenas will seek to obtain records
related directly to Plaintiffs claims and her damages (i.e., her claim for severe
and permanent traumatic injuries, including mental, psychological and emotional
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damages" and loss of self-esteem and dignity as referenced above). Cherenfant
v. Nationwide Credit, Inc. 2004 WL 5315889 (S.D. Fla. 2004)(order allowing
discovery of medical records consistent with Plaintiff's allegations in complaint).
This too goes directly to Plaintiffs damage claims. Medical providers, employers,
co-employees, etc...have direct and relevant personal knowledge and
observations regarding damages, i.e., emotional state, activities, self-esteem,
etc....
8. Fed.R.Civ.Pro. 26 allows for broad discovery. Epstein is not
required to rely solely on Plaintiff's discovery responses in defending this case,
nor is Epstein required by any statute or law to rely only upon what Plaintiff
produces in discovery or may obtain from her own medical treaters through her
counsel, and to then provide to Epstein only after Plaintiff has reviewed same. In
certain related state court actions involving Epstein, the undersigned offered to
serve certain subpoenas on the medical treaters and other third-parties with full
name, date of birth and Plaintiffs social security number (last four digits), but
agreed that the subpoenas filed with the clerk would be redacted. Several
attorneys agreed to this procedure in those cases. In Federal Court, subpoenas
are not filed with the clerk. Thus, in this matter, the undersigned offered to serve
the third-party subpoenas with plaintiffs full name, date of birth and social
security number (last four digits) and would agree to redact any identifying
information on any documents filed with this court if that ultimately became
necessary. As discussed below, Plaintiffs counsel did not agree. Further,
Plaintiff's counsel claims a HIPPA complaint protective order is necessary. Such
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is not the case when a Plaintiff places her mental, emotional, psychological and
physical condition at issue.
9. Moreover, when an order from the court is attached to the
Subpoena, treaters and other third parties produce the records and show up to
the depositions with the records requested because the deponent knows what to
bring by virtue of knowing the identity of the Plaintiff.
10. Epstein's counsel intends to serve and depose witnesses duces
tecum. If Epstein is not permitted to identify JANE DOE, how will any deponent
know who the parties are and what to bring to the deposition pursuant to the
duces tecum? Further, how will Epstein be able to defend the claims. Just like
the Plaintiff, Epstein is entitled to due process.
11. While it is within the sound discretion of this court to allow a party to
proceed anonymously, Plaintiff should not attempt to utilize that discretion as a
shield from legitimate and necessary discovery. Epstein has a fundamental due
process right to conduct discovery.
b. Motion To Identify JANE DOE In Style Of This Case
12. As discussed below, Epstein has fundamental due process right to
defend himself in this civil litigation. While JANE DOE travels under a
pseudonym, various newspaper articles identifying Epstein have been released
discussing the alleged claims against him. Allowing JANE DOE to litigate this
matter under a pseudonym is preventing Epstein from defending this suit
including, but not limited to, preventing him from locating individuals that may
have information about this lawsuit and information about JANE DOE that may
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discredit her allegations and/or lessen the monetary damages she seeks to
recover. It is the undersigned's experience that once identified, witnesses begin
to come forward. See supra.
13. In Doe v. Leplev, 185 F.R.D. 605 (D. Ct. NV 1999), a sexual
harassment case, the court reasoned that there is no express or implied right to
bring an action anonymously. Id. at 606. Moreover, Fed. R. Civ. P 10(a)
requires that the complaint include the names of the parties. Id. When Plaintiffs
are permitted to proceed anonymously, the court must employ a balancing test to
decide if the plaintiff has a substantial privacy interest that outweighs the
presumption of openness in judicial proceedings. Id., citing, Doe v. 951
F.2d 320, 323 (11th Cir. 1992)(requiring complaint to include the names of the
parties serves more than administrative convenience, it protects the public's
legitimate interests in knowing all the facts involved, including the identity of the
parties - thus denying request to proceed anonymously). The factors include:
a. whether the plaintiff is challenging governmental activity;
b. whether the party defending the suit would be prejudiced;
c. whether the plaintiff is required to disclose information of
utmost intimacy;
d. whether the plaintiff is compelled to admit an intention to
engage in illegal conduct, thereby risking criminal
prosecution;
e. whether the Plaintiff would risk suffering injury if identified;
f. whether the interests of children are at stake; and
g. whether there are less drastic means of protecting the
legitimate interests of either party.
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Doe 951 F.2d at 323.
Plaintiff does not fall under any of the factors. Moreover, even if she did
meet one of the factors, "[t]he fact that [a] Doe [Plaintiff] may suffer some
personal embarrassment, standing alone, does not require the granting of a
request to proceed under a pseudonym." Id; see also Doe v. Rostker, 89 F.R.D.
159 (N.D. Calif. 1981). Any substantial privacy interests JANE DOE has must
outweigh the customary and constitutionally embedded presumption of openness
to judicial proceedings. Doe v. , 951 F.2d at 323; Doe v. Bergstron 2009
WL 528623 (C.A.9(Or.))(denying request to proceed anonymously in civil action
by Plaintiff where Plaintiffs arrest, prosecution and acquittal were matters of
public record).
14. In Sweetland v. State 535 So.2d 646 (Fla. 1 st DCA 1988), the court
reasoned that the purpose of discovery is to eliminate the likelihood of surprise
and to insure a fair opportunity to prepare for trial. Florida Rule of Civil Procedure
1.280(b)(1); see also Surf Drugs. Inc.. v. Vermette, 236 So.2d 108, 111 (Fla.
1970)(stating that the rules of discovery should be afforded broad and liberal
treatment to effectuate their purpose), citing Hickman v. Taylor, 329 U.S. 495,
501, 507 (1947).
15. Next, the right to go to court to resolve disputes is a fundamental right.
D.R. Lakes, Inc. v. Brandsmart U.S.A. of West Palm Beach, 819 So.2d 971 (Fla. 4th
DCA 2002). All litigants are afforded an equal opportunity. Lingle v. Dion 776
So.2d 1073 (Fla. 4"' DCA 2001). The Florida Constitution establishes the right
commonly known as access to courts. Mitchell v. Moore, 786 So.2d 521 (Fla.
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2001). Courts shall be open to any person for the redress of any injury and justice
shall be administered without sale, denial or delay. Art. I, §21, Fla. Const.; 10A Fla.
Jur. 2d, Constitutional Law, §360.
16. If Jane Doe's name is not disclosed and identified, Mr. Epstein will not
be afforded his fundamental right to fairly litigate this dispute and prepare for trial.
Accordingly, Epstein requests that JANE DOE be identified by her legal name in the
pleadings.
c. Motion To Identify JANE DOE In Third -Party Subpoenas
17. While discovery in this matter is underway; Epstein is effectively
being denied due process rights by Plaintiffs counsel from conducting broad,
open and liberal discovery in that Plaintiffs counsel has objected to, among other
things, Epstein identifying JANE DOE in various third-party subpoenas to her
medical providers and other third parties.
18. The undersigned must serve subpoenas on medical doctors to
obtain medical information on JANE DOE's alleged psychological and physical
damages as same goes to the heart of Epstein's defenses and Plaintiffs
damages. Plaintiff is claiming emotional/psychological damages. See Exhibit
"A", Interrogatory Response Number 9. Therefore, Epstein is entitled to know
her psychological condition(s) before and after the alleged incident(s) she
references in the Second Amended Complaint. In particular, JANE DOE alleges
specific disorders as a result of Epstein's alleged conduct — ". . .psychological
and emotional injuries. . .corruption of morals, anxiety, intrusive thoughts,
disturbed sleep, impaired concentration, disruption and distortion of normal
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development, loss on innocence." (Emphasis Added). Id. Epstein is also
entitled to know, among other things, whether she had any physical complaints
or whether there was ever any evidence of physical battery on JANE DOE's body
from the acts she complains of in the 2nd Amended Complaint. The need to
serve third-party subpoenas on medical doctors is a basic discovery need related
to the claims alleged by JANE DOE for which Plaintiff's counsel refuses to
compromise. Balas v. Ruzzo, 703 So.2d 1076 (Fla. 5th DCA 1997), rev. denied,
719 So.2d 286 (Fla. 1998)(discoverability of Plaintiffs history of sexual activity is
relevant to damages); United States v. Bear Stops 997 F.2d 451 (8th Cir.
1993)(deals with "admissibility of other acts of sexual abuse by individuals other
than the defendant to explain why a victim of abuse exhibited behavioral
manifestations of a sexually abused child.") If Plaintiff saw a psychologist or
other physician during or after the time periods she claims she was assaulted by
Epstein but either did not discuss or did discuss the incidents (or lack thereof)
would be directly relevant to her damage claims. Plaintiff seeks physical and
emotional/mental personal injury type damages, and the Epstein must conduct
his own discovery thereon. See supra. No valid discovery objections or
exemptions exist preventing necessary and reasonable discovery. To hold
otherwise prevents Mr. Epstein from preparing and defending this matter.
19. In defending this lawsuit, Mr. Epstein should be permitted broad
discovery, whether admissible at trial or not. Fed.R.Civ.Pro. 26 provides, in
pertinent part, that "parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action."
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Plaintiff's counsel's refusal to identify JANE DOE in the third-party subpoenas
referenced above is prejudicing Mr. Epstein by virtue of preventing discovery all
together, which is in complete contradiction of the discovery rules and Epstein's
substantive due process rights.
20. In addition, subpoenas must also be served upon various local and
state institutions in order to determine what crimes, if any, JANE DOE has
committed (i.e., crimes that involve dishonesty and/or false statement).
Obviously, this goes directly to the heart of JANE DOE's damages she claims ". .
.psychological and emotional injuries. . .corruption of morals, anxiety, intrusive
thoughts, disturbed sleep, impaired concentration, disruption and distortion of
normal development, loss on innocence." — caused by Epstein or other events in
her life) for which a jury is entitled to hear about at trial, and certified records
must be obtained from the clerk should JANE DOE answer certain questions
regarding her crimes incorrectly. See Exhibit "A".
21. At this time, the undersigned is aware that Jane Doe may have
committed the crime of shoplifting.
22. If Jane Doe was involved in other crimes, Epstein is entitled to
obtain certified copies of those crimes Plaintiff may have committed for purposes
of discovery and impeachment. Questions will be asked regarding those crimes
(e.g., Have you been convicted of a crime of dishonesty or false statement? If
so, how many times? Have you been convicted of a felony? If so, how many
times?) To hold otherwise would not only prevent broad discovery but would
ultimately result in reversible error at any trial.
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II. Conclusion
23. Epstein requests the following relief:
a. That JANE DOE be identified by her legal name in the style of
this case;
b. That Epstein be granted leave to identify JANE DOE by her
legal name in Third-Party Subpoenas (but not file them in Court
or, if required, in a redacted form); and
c. That, on an alternative basis, this court dismiss this action Sua
Sponte until such time as JANE DOE identifies herself in the
style of this matter. Doe v. Rostker, 89 F.R.D.at 163.
WHEREFORE, Epstein, Jeffrey Epstein, respectfully requests that this
Court enter said order granting the relief requested above, and for such other
and further relief as this Court may deem just and pr
By:
ROB
Certificate of Service
, ESQ.
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 fr day of
, 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]
[Email Redacted]
ahorowitzasexabuseattorney.com
Counsel for Plaintiff Jane Doe #4
Jack Alan Goldberger, Esq.
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
[Phone Redacted]
Fax: [Phone Redacted]
jaaesciabellsouth.net
Co-Counsel for Defendant Jeffrey
Epstein
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Respectfully su
By:
ROBERT b. CRJTTON, JR., ESQ.
Florida Bar No. 224162
[Email Redacted]
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
moike bciclaw.com
BURMAN, CRITTON, LUTTIER &
COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Counsel for Defendant Jeffrey Epstein)
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