Court Records
Case 9:08-cv-80119-KAM Document 91 Entered on FLSD Docket 05/05/2009 Page 1 of 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80119-MARRA
JANE DOE NO. 2
Plaintiff,
v.
JEFFREY EPSTEIN,
Defendant.
MOTION TO COMPEL AND/OR IDENTIFY JANE DOE 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, 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 February 6, 2008, Plaintiff, a 21-year-old female, filed this action
against Epstein.
2. On February 27, 2009, Plaintiff filed her Second Amended
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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 56).
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 56.
In Count II for Sexual Battery, plaintiff claims entitlement to recover for ". .
.severe mental anguish and pain" ¶27, 2nd Am. Comp., DE 56. 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 56. Plaintiff
also claims entitlement to "punitive damages" and "actual and compensatory
damages". DE. 56. 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
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allegations in the 2nd Amended Complaint. In this case, Plaintiff's counsel
objected to Epstein serving subpoenas on Plaintiff's 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 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 Plaintiffs 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....
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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
is not the case when a Plaintiff places her mental, emotional, psychological and
physical condition at issue. 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.
9. Epstein's counsel intends to serve and depose witnesses duces
tecum. If Epstein is not permitted to identify JANE DOE, how will any deponent
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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.
10. 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
11. 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.
12. 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
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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. S 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 (ND. 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. Berqstron 2009
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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).
13. 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).
14. 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. 4 th
DCA 2002). All litigants are afforded an equal opportunity. Lingle v. Dion, 776
So.2d 1073 (Fla. 4 th 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.
15. 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.
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c. Motion To Identify JANE DOE In Third -Party Subpoenas
16. While discovery in this matter is underway; Epstein is effectively
being denied due process rights by Plaintiff's 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.
17. 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 — anxiety, depression,
low self-esteem, guilt, distrustfulness, suicidal thoughts, difficulty trusting men,
irritability, anger, feeling helpless, powerless, escapism lack of confidence, loss
of innocence, etc... (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 Plaintiffs counsel refuses to compromise. Balas
v. Ruzzo 703 So.2d 1076 (Fla. 5th DCA 1997), rev. denied, 719 So.2d 286 (Fla.
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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.
18. 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
substantive due process rights.
19. 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).
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Obviously, this goes directly to the heart of JANE DOE's damages she claims
(emotional distress, psychological trauma, loss of self-esteem, anxiety,
depression, low self-esteem, guilt, distrustfulness, suicidal thoughts, difficulty
trusting men, irritability, anger, feeling helpless, powerless, escapism lack of
confidence, loss of 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.
20. At this time, the undersigned is aware that Jane Doe has
information regarding a certain burglary. If Jane Doe was involved in crimes,
Epstein is entitled to obtain certified copies of those crimes and other crimes
Plaintiff may have committed for purposes of discovery and impeachment. To
hold otherwise would not only prevent broad discovery but would ultimately result
in reversible error at any trial.
II. Conclusion
21. 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
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and further relief as this Court may deem just an
Robert D. Ckitton, Jr.
Attorney for Defendant 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 er 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]
ssmsexabuseattorney.com
ahorowitz sexabuseattorney.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]
leqesq(a.bellsouth.net
Co-Counsel for Defendant Jeffrey
Epstein
Respecff ed,
By:
D. CRI N, JR., ESQ.
Florida Bar No. 224162
rcritAbcIclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike(a2bcIclaw.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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