Court Records
Case 9:08-cv-80380-KAM Document 104 Entered on FLSD Docket 05/13/2009 Page 1 of 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80380-MARRAMIM
JANE DOE NO. 4,
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
Defendant Jeffrey Epstein's Reply to Plaintiff's Response In Opposition To
Defendant's Motion To Stay And/Or Continue Action For Time Certain With Incorporated
Memorandum Of Law
Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN") by and through his
undersigned attorneys, hereby files his Reply to Plaintiff's Response In Opposition to
Defendant's Motion to Stay and/or Continue Action, and states:
I. Introduction and Argument
Plaintiff's Response in Opposition challenging the stay should not prevail when
5th Amendment principles are at issue and when there exists a real, substantial and not
remote possibility that Epstein may face criminal prosecution by the United States
Attorneys' Office ("USAO") if the USAO unilaterally determines that Epstein somehow
violated that certain Non-Prosecution Agreement dated June 30, 2008 ("NPA") and/or if
Epstein is forced to waive those 5th Amendment rights and participate in civil discovery
in order to defend this civil action.
Epstein should not be confronted with the substantial risk of loosing this civil
action by virtue of asserting his 5th Amendment privileges. Despite Plaintiffs contention,
Epstein's Motion does not concentrate solely on the fact that the pleadings are not at
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Jane Doe No. 4 v. Epstein
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the summary judgment stage. The motion also concentrates on Epstein's risk of loosing
this entire civil action as a result of Epstein invoking his 5th Amendment rights. Severino
v. Klvtie's Developments, Inc., 2008 WL 1782637, *2 (D. Colo)(recognizing that a stay is
appropriate under similar circumstances as in the instant case); see also infra.
In fact, waiver of Epstein's 5th Amendment privileges should not be compelled to
defend this civil action (and could be remedied by a reasonable stay), especially when
civil discovery may lead to the USAO unilaterally declaring a violation of the NPA.
The USAO has already unilaterally claimed that EPSTEIN violated the NPA by,
among other things, "investigating the Plaintiffs (by and though his attorneys)
whom brought civil suits against him for purposes of defending those civil
actions" and "by contesting damages in this action and in the other civil actions."
See Motion to Stay and Jack Goldberger Affidavit attached thereto as Exhibit "B". Thus,
these are not vague assertions as Plaintiff claims. How can Epstein truly defend these
matters and be afforded his due process rights when to do so might result in the USAO
claiming a breach of the NPA? The fact is that he cannot. Notwithstanding the
allegations against Epstein, this Court has an obligation to ensure his due process
rights are upheld in both the civil and criminal contexts.
Next, in her response, Plaintiff claims that a stay should not be entered because
a parallel criminal proceeding against Epstein does not exist. Not only is Plaintiff's
theory incorrect for reasons set out herein and in the Epstein's Motion to Stay, but her
response ignores the significant fact that a stay may be issued in light of an ongoing
investigation. It is clear from the NPA and Jack Goldberger's Affidavit (attached to the
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Jane Doe No. 4 v. Epstein
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Motion to Stay) ". . .that the criminal matters against Epstein remain ongoing until the
NPA expires by its terms in late 2010. . ., and the threat of criminal prosecution against
Epstein by the USAO continues presently and through late 2010." See Jack
Goldberger's Affidavit, ¶5 (attached to the Motion to Stay). In fact, the FBI refused to
provide information regarding this case and other related cases filed against Epstein ". .
.stating the materials are at this time exempt from disclosure because they are in an
investigative file, i.e., the matter is still an ongoing criminal investigation." See Jack
Goldberger's Affidavit, ¶7 (attached to the Motion to Stay)
Additionally, Plaintiffs response downplays the fact that civil discovery may result
in the USAO claiming a breach of the NPA. Epstein wishes to vigorously defend this
case and others filed against him; however, he does not wish to risk waiver of his St"
Amendment privileges, at least before the NPA expires or any investigation is closed.
Further, Plaintiff adopts the arguments set forth in Jane Doe's Response to the
Motion to Stay filed in 08-CIV-80893, which asserts that the NPA is not attached to
Epstein's Motion to Stay. The Court has a copy of the NPA. While it may be sealed,
this Court may review same, in camera. As such, Plaintiffs Best Evidence argument
(as adopted in the instant response) is entirely misplaced and should be disregarded.
a. Justice Requires The Entry of A Stay
As set out in the Motion to Stay, once the NPA expires, EPSTEIN intends to
testify to all relevant and non-objectionable inquiries made to him in discovery be it a
deposition, in interrogatories or in production requests. However, the current
circumstances are such that by testifying or responding to discovery, EPSTEIN will be
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Jane Doe No. 4 v. Epstein
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required to waive his constitutional privileges, thereby subjecting himself to scrutiny by
the USAO as a result of matters alleged in this civil action (and others before this Court
and in the State of Florida 15th Judicial Circuit Court, Palm Beach County).
When an ongoing criminal investigation exists, courts have granted motions to
stay civil proceedings. In St. Paul Fire and Marine Insurance Company v. U.S., 24 CI.Ct
513 (1991), the court held that staying a civil action for 6-9 months was reasonable in
light of a pending criminal investigation so long as the movant met certain elements
(see infra) and the stay was not immoderate or unreasonable. Taking into consideration
the Motion to Stay and this Reply as well as facts alleged by Plaintiff in her operative
pleading against Epstein, it is clear that Epstein has met the elements of St. Paul Fire
necessary for this Court to enter a stay:
1. Epstein has made a clear showing, by direct or indirect proof, that
the issues in the civil action are "related" as well as "substantially similar"
to the issues in the criminal investigation.
2. Epstein has made a clear showing of hardship or inequity if
required to go forward with this civil case while the NPA and/or the
ongoing investigation exist. (see supra and see also Motion to Stay and
attached affidavit of Jack Goldberger, Esq. discussing Epstein's 5th
Amendment Rights and how those rights affect this civil litigation — see
supra)• and
3. Epstein, in light of the stays granted by other courts, has shown
that a stay in the instant matter until late 2010 (the date the NPA expires)
and the likely date any ongoing investigation will be closed is not
immoderate or unreasonable.
St. Paul Fire and Marine Insurance Company v. U.S., 24 CI.Ct at 515-16; see also
Wilson v. National Association of Letter Carriers, 2006 WL 3791313, *1 (E.D. La.
2006)(granting motion to stay civil proceeding for 2 years and 7 months pending
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Jane Doe No. 4 v. Epstein
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criminal investigation)• Ostrow v. U.S., 1986 WL 6855, *1 (M.D. Fla.)(recognizing a
defendant's constitutional rights and allowing for a stay of the civil case until the criminal
aspects/investigation of Defendant's companion case are closed).
Here, Epstein is not required to "contemplate an in haec verba iron-clad
comparison of separate issues by direct proof." St. Paul Fire and Marine Insurance
Company v. U.S. 24 CI.Ct at 516. Instead, a reading of the complaint, the NPA (in
camera), the pleadings in support of and against Epstein's Motion to Stay along with
other pleadings in the clerk's file, makes it clear that the facts in the instant matter and
those in the ongoing investigation are "related" and/or "substantially similar." Id. As
such, permitting this civil action to go forward would create a hardship on Epstein in that
he will be forced to invoke his 5th Amendment Privilege and risk loosing this case by
virtue of not being able to present evidence, or waive that right and risk a potential
criminal prosecution. Eastwood v. U.S., 2008 WL 5412857, *1 (E.D. Tenn.))("When a
party to a civil action is subject to criminal proceedings and/or investigations that relate
to such civil action, courts will often stay the civil proceeding so as to prevent the use of
civil discovery and evidentiary procedures to obtain evidence for use in the criminal
matter). Id. Courts will also stay a civil case to preserve 5th Amendment rights. Id.
Further, a comparison of Fed.R.Civ. Pro. 26 may expand the rights of criminal discovery
beyond the limits of Fed.R.Crim.Pro. 16(b). Epstein satisfies the requirements to stay
this action as set forth in St. Paul Fire and in Eastwood, including the similarity of issues
underlying the civil litigation and ongoing criminal investigation. As such, a stay should
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be entered in the instant matter. See also U.S. v. $75,020.00 In United States Funds, et
al., 2009 WL 1010359 (M.D. G.a. 2009).
Ill. Conclusion and Request for Relief
Based upon the foregoing, Epstein is entitled to a full stay of this proceeding (and
other related matters) until such time as the NPA expires and until the ongoing
investigation by the USAO is closed (i.e., until late 2010). Alternatively, in an effort to
protect Epstein's 5th Amendment and his due process rights in connection with
defending these civil matters, this court should enter a stay of any discovery directed to
Epstein and strike this case from the trial docket until the NPA and the ongoing
investigation are both concluded and/or expired. In this manner, Plaintiffs investigation
and discovery as to third parties will continue and will not be delayed. Epstein is
invoking his 5th Amendment rights in the first place, which means that objections to
discovery and deposition questions are being asserted so as not to waive those 5 th
Amendment rights. Once the NPA and the ongoing investigation terminate, this court
could allow additional time for Plaintiff to complete Epstein's deposition and discovery
directed to him, and then set this case on the Court's most available docket. Despite
Plaintiffs contentions, Epstein's 5th Amendment rights and his due process rights
associated therewith and in connection with defending this civil case should trump any
civil claim for money damages when it comes to timing. Eastwood v. U.S., 2008 WL
5412857, *6 (reasoning that a stay is warranted when the risk to an individual's
constitutional rights is magnified).
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WHEREFORE, Epstein requests the following relief set forth above, and for such
other and further relief as this court deems just and proper
Rob it -0r Cr on, Jr.
Attorney for mefendant Epstein
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 day of May, 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]
ssmesexabuseattornev.com
ahorowitz sexabuseattornev.com
Counsel for Plaintiff Jane Doe #2
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]
jaqesqe.bellsouth.net
Co-Counsel for Defendant Jeffrey Epstein
Respect
By:
ROB ON, JR., ESQ.
Florida Bar No. 224162
rcriffbcIclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpikeAbciclaw.com
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
561/842-2820 Phone
561/515-3148 Fax
(Co-Counsel for Defendant Jeffrey Epstein)
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