Court Records
Case 9:08-cv-80381-KAM Document 86 Entered on FLSD Docket 05/06/2009 Page 1 of 12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80381-MARRA
JANE DOE NO. 5,
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
MOTION TO COMPEL AND/OR IDENTIFY JANE DOE #5 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 #5 ("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:
I. Motion And Incorporated Memorandum Of Law
a. Background
1. On April 15, 2008, Plaintiff, a 21-year-old female, filed this action
1 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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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 63).
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." ¶21 2nd Am. Comp., DE 63.
In Count II for Sexual Battery, plaintiff claims entitlement to recover for the
impairment to her "mental and emotional health," ¶25, 2nd Am. Comp. DE 63,
and ". . .severe emotional distress.. ." and ". . .severe mental anguish and pain. .
. ." ¶¶26, 27 2nd Am. Comp., DE 63. In Count III for Coercion and Enticement
to Sexual Activity in violation of 18 U.S.C. §2422, plaintiff claims entitlement to
recover for ". . .personal injury, including mental, psychological and emotional
damages" ¶33, 2nd Am. Comp. DE 63. Plaintiff also claims entitlement to
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"punitive damages" and "actual and compensatory damages." DE 63. 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, Plaintiffs 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
damages" and loss of self-esteem as referenced above). Cherenfant v.
Nationwide Credit, Inc., 2004 WL 5315889 (S.D. Fla. 2004)(order allowing
discovery of medical records consistent with Plaintiffs allegations in complaint).
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This too goes directly to Plaintiff's 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 Plaintiffs 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 plaintiff's 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
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
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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
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.
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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.
Doe v. ME 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
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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. 1st 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. 41h
DCA 2002). All litigants are afforded an equal opportunity. Lingle v. Dion, 776
So.2d 1073 (Fla. 4th DCA 2001). The Florida Constitution establishes the right
commonly known as access to courts. Mitchell v. Moore, 786 So.2d 521 (Fla.
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.
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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 Plaintiff's 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 — ". . .mental and
emotional injuries. . .depressive episodes, anger, low self-esteem, flashbacks,
mood swings, lack of trust, generally, and lack of trust in men (particularly of
older men around Plaintiff's daughter)." (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
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from the acts she complains of in the 2 nd 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 Plaintiffs counsel refuses to
compromise. Balas v. Ruzzo 703 So.2d 1076 (Fla. 5'h 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 (8 th 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."
Plaintiffs 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
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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 ". .
.mental and emotional injuries. . .depressive episodes, anger, low self-esteem,
flashbacks, mood swings, lack of trust, generally, and lack of trust in men
(particularly of older men around Plaintiff's daughter)" — 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. Esptein is entitled to know whether Jane Doe committed and/or
was charged with any crimes. If Jane Doe was charged with 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.
II. Conclusion
22. 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
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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 a ve and for such other
and further relief as this Court may deem just and
By:
ROBE ON, JR., 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 f,, day of
, 2009:
Adam D. Horowitz, Esq.
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]
ssmsexabuseattornev.com
ahorowitzasexabuseattornev.com
Counsel for Plaintiff Jane Doe #5
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]
jaqestabellsouth.net
Co-Counsel for Defendant Jeffrey
Epstein
Respectful mitted,
By:
ROSE C TTON, JR., ESQ.
Florida Bar No. 24162
rcritabcIclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpikeAbciclaw.com
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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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