Court Records
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C.M.A. v. Epstein, et al.
Page 16
action for damages); Mantooth v. Richards 557 So.2d 646 (Fla. 4th DCA 1990), per
cunam, (Dismissal of plaintiffs civil complaint affirmed where parental kidnapping
statutes concerned only criminal violations and did not create a civil remedy).
As well, the Count XXXI allegations make absolutely no reference to any
viable common law cause of action; Defendant should not be required to guess or
speculate as to the nature of Plaintiffs cause of action. Even if Defendant were to
speculate as to the supposed cause of action, these causes of action (common law or
otherwise) have not been sufficiently alleged. On its face, in accordance with the
pleading requirements annunciated in Twombly, supra, Count XXXI is completely
lacking as to any common law elements or the underlying factual allegations to support
each element, and thus, Count )0O(1 is required to be dismissed for failure to state a
cause of action.
In the alternative, Plaintiff should be required to more definitely state whether her
claim is being brought pursuant to federal or Florida statutory law, specifically identify
the statute it is being brought under, or whether her claim is being asserted under
common law. Once Plaintiff identifies the nature of her claim, she is required to
sufficiently allege in accordance with Twomblv, the requisite elements of the identified
claim, along with sufficient factual allegations supporting the elements.
Conclusion
Pursuant to applicable law, Counts I through XXXI of Plaintiff's First Amended
Complaint are required to be dismissed for failure to state a cause of action. 18 U.S.C.
does not allow for the Plaintiff C.M.A. to allege separate causes of action against
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C.M.A. v. Epstein, et al.
Page 17
Defendant EPSTEIN, but rather allows Plaintiff to attempt to assert a single civil remedy
it she can prove a violation of any ofthe statutory enumerated predicate acts. Further,
Plaintiff has failed to sufficiently allege a requisite predicate act under §2255. In
addition, §2255 does not allow for recovery of punitive damages. Count XXXI is also
subject to dismissal with prejudice for failure to state a cause of action, as Plaintiff has
failed to allege a legally viable or recognizable cause of action.
WHEREFORE, Defendant requests that this Court grant his motion to dismiss
Counts I through XXXI, or alternative motion for more definite statement, and motion to
strike.
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 recoml identified on the following Service List in the
manner specified by CWECF on thisr day of March 2009:
Richard Horace Willits, Esq.
Richard H. Willits, P.A.
2290 101" Avenue North
Suite 404
Lake Worth, FL 33461
[Phone Redacted]
Fax: [Phone Redacted]
Counsel for Plaintiff C. M.A.
reelrhwhotmail.com
Jack Scarola, Esq.
Jack P. Esq.
Searcy enney Scarola Barnhart
Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
[Phone Redacted]
Fax: [Phone Redacted]
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]
jagesaebellsouth.net
Counsel for Defendants Jeffrey Epstein
and
Bruce Reinhart, Esq.
& Bruce E. Reinhart, P.A.
250 S. Australian Avenue
Suite 1400
West Palm beach, FL 33401
[Phone Redacted]
Fax: [Phone Redacted]
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C.M.A. v. Epstein, et al.
Page 18
jsxasearcvlaw.com
jphAsearcvlaw.com
Co-Counsel for Plaintiff
ENDNOTE:
ecf brucereinhartlaw.
Counsel for Defendan
Respectfully su tted,
By:
ROBERT D CRITTON, JR., ESQ.
Florida Bar o. 224162
rcritebcIcl w.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
(Counsel for Defendant Jeffrey Epstein)
U.S.C.A. - Title 18. Crimes and Criminal Procedure,
Chapter 109A. Sexual Abuse
§2241. Aggravated Sexual Abuse.
(c) With children. —Whoever crosses a State line with intent to engage in a sexual act
with a person who has not attained the age of 12 years, or in the special maritime and
territorial jurisdiction of the United States or in a Federal prison, or in any prison,
institution, or facility in which persons are held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal department or agency, knowingly
engages In a sexual act with another person who has not attained the age of 12 years,
or knowingly engages in a sexual act under the circumstances described in subsections
(a) and (b) with another person who has attained the age of 12 years but has not
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C.M.A. v. Epstein, et al.
Page 19
attained the age of 16 years (and is at least 4 years younger than the person so
engaging), or attempts to do so, shall be tined under tnis true and imprisoned tor not
less than 30 years or for life. If the defendant has previously been convicted of another
Federal offense under this subsection, or of a State offense that would have been an
offense under either such provision had the offense occurred in a Federal prison, unless
the death penalty is imposed, the defendant shall be sentenced to life in prison.
§ 2242. Sexual abuse
Whoever, in the special maritime and territorial jurisdiction of the United States or in
a Federal prison, or in any prison, institution, or facility in which persons are held in
custody by direction of or pursuant to a contract or agreement with the head of any
Federal department or agency, knowingly—
(1) causes another person to engage in a sexual act by threatening or placing that
other person in fear (other than by threatening or placing that other person in fear that
any person will be subjected to death, serious bodily injury, or kidnapping); or
(2) engages in a sexual act with another person if that other person is—
(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or communicating
unwillingness to engage in, that sexual act;
or attempts to do so, shall be fined under this title and imprisoned for any term of years
or for life.
§ 2243. Sexual abuse of a minor orj♦
(a) Of a minor.—Whoever, in the special maritime and territorial jurisdiction of the
United States or in a Federal prison, or in any prison, institution, or facility in which
persons are held in custody by direction of or pursuant to a contract or agreement with
the head of any Federal department or agency, knowingly engages in a sexual act with
another person who—
(1) has attained the age of 12 years but has not attained the age of 16 years; and
(2) is at least four years younger than the person so engaging;
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years,
or both.
(b) Of a .--Whoever, in the special maritime and territorial jurisdiction of the United
States or in a Federal prison, or in any prison, institution, or facility in which persons are
held in custody by direction of or pursuant to a contract or agreement with the head of
any Federal department or agency, knowingly engages in a sexual act with another
person who is--
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C.M.A. v. Epstein, et al.
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(1) in official detention; and
(2) under the custodial, supervisory, or disciplinary aumonty of me person so
engaging;
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years,
or both.
(c) Defenses.—(1) In a prosecution under subsection (a) of this section, it is a defense,
which the defendant must establish by a preponderance of the evidence, that the
defendant reasonably believed that the other person had attained the age of 16 years.
(2) In a prosecution under this section, it is a defense, which the defendant must
establish by a preponderance of the evidence, that the persons engaging in the sexual
act were at that time married to each other.
(d) State of mind proof requirement —In a prosecution under subsection (a) of this
section, the Government need not prove that the defendant knew—
(1) the age of the other person engaging in the sexual act; or
(2) that the requisite age difference existed between the persons so engaging.
Chapter 117 Transportation for Illegal Sexual Activity and Related Crimes
§ 2421. Transportation generally
Whoever knowingly transports any individual in interstate or foreign commerce, or in
any Territory or Possession of the United States, with intent that such individual 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 10 years, or both.
§ 2423. Transportation of minors
(a) Transportation with intent to engage in criminal sexual activity: -A person who
knowingly transports an individual who has not attained the age of 18 years in interstate
or foreign commerce, or in any commonwealth, territory or possession of the United
States, with intent that the individual engage in prostitution, or in any sexual activity for
which any person can be charged with a criminal offense, shall be fined under this title
and imprisoned not less than 10 years or for life.
(b) Travel with intent to engage in illicit sexual conduct.—A person who travels in
interstate commerce or travels into the United States, or a United States citizen or an
alien admitted for permanent residence in the United States who travels in foreign
commerce, for the purpose of engaging in any illicit sexual conduct with another person
shall be fined under this title or imprisoned not more than 30 years, or both.
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C.M.A. v. Epstein, et al.
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(c) Engaging In illicit sexual conduct in foreign places.—Any United States citizen or
alien admitted tor permanent residence who travels in toreign commerce, and engages
in any illicit sexual conduct with another person shall be fined under this title or
Imprisoned not more than 30 years, or both.
(d) Ancillary offenses.—Whoever, for the purpose of commercial advantage or private
financial gain, arranges, induces, procures, or facilitates the travel of a person knowing
that such a person is traveling in interstate commerce or foreign commerce for the
purpose of engaging in illicit sexual conduct shall be fined under this title, imprisoned
not more than 30 years, or both.
(e) Attempt and conspiracy. —Whoever attempts or conspires to violate subsection (a),
(b), (c), or (d) shall be punishable in the same manner as a completed violation of that
subsection.
(f) Definition. —As used in this section, the term "illicit sexual conduce means (1) a
sexual act (as defined in section 2246) with a person under 18 years of age that would
be in violation of chapter 109A if the sexual act occurred in the special maritime and
territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in
section 1591) with a person under 18 years of age.
(g) Defense.—In a prosecution under this section based on illicit sexual conduct as
defined in subsection (0(2), it is a defense, which the defendant must establish by a
preponderance of the evidence, that the defendant reasonably believed that the person
with whom the defendant engaged in the commercial sex act had attained the age of 18
years.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO • 08-CV-80811-CIV-MARRA/•tfHNRON
C.MA.,
Plaintiff,
vs.
f EPSTEIN and
Defendants.
PLAINTIFF. C.M.A.'S. CONDITIONAL NOTICE OF INTENT TO EXCLUSIVELY RELY
ON STATUTORY DAMAGES PROVIDED SY 18 U.S.C. §2255
C.MA., by and through her undersigned counsel, hereby files her
Conditional Notice of Intent to Exclusively Rely on Statutory Damages Provided by 18
U.S.C. §2255, and in support thereof states as follows:
1. This Is an action to recover money damages against Defendant,
JEFFREY EPSTEIN, for acts of sexual abuse and prostitution committed upon the then-
minor, C.MA
2. Plaintiff has plead thirty separate counts against EPSTEIN for separate
Incidences of abuse committed by EPSTEIN against Plaintiff pursuant to 18 U.S.C.
§2265. 18 U.S.C. §2266, entitled "Civil remedy for personal Injuries", creates a private
right of action for minor children who were the victim of certain enumerated sex
offenses. 18 U.S.C. §2265 also creates a statutory floor for the amount of damages a
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victim can recover for a violation of same. Plaintiff has also alleged a single count of
Sexual Battery against EPSTEIN as well.
3. There presently exists between the Plaintiff and EPSTEIN a disagreement
as to whether the statutory damage floor established in 18 U.S.C. §2255 is recoverable
for each commission of an enumerated sex offense listed In 18 U.S.C. §2255, or
whether the statutory damage floor can only be enforced once, regardless of how many
times a defendant perpetrates an enumerated sex offense against a minor victim.
4. This disagreement between the parties is properly the subject of
Defendant's Motion to Dismiss First Amended Complaint For Failure to State a Cause
of Action, and Motion For More Definite Statement; Motion to Strike, and Supporting
Memorandum of Law (D.E. 47) which is currently pending before this Court.
5. In the event that the Court rules that the Plaintiff is entitled to recover the
statutory damages created by 18 U.S.C. §2255 for each violationl, Plaintiff will be
pursuing only those statutory damages, and will not pursue damages available at
common law.
6. Should the Court rule however, that the statutory damage floor can only
be applied once, Plaintiff will be pursuing any and all damages available to her, whether
they be pursuant to statute or by common law.
I The parties also disagree about the amount the statutory damage floor should be for this case. 18
U.S.C. §2265 was amended In 2006 to increase the floor from $50,000 to $160,000. The parties
essentially disagree about which version of 18 U.S.C. §2265 should apply in this case.
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Respectfully submitted,
Ls/.lark P
JACK SCA LA
Florida Bar No. 169440
JACK P.
Florida Bat: 0547808
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Attorneys for Plaintiff, C.M.A.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 5th, 2009, I electronically filed the foregoing
document with the Clerk of Court using CM/ECF. I also certify that the foregoing
document Is being served this day on all counsel of record identified on the attached
counsel list via transmission of Notices of Electronic Filing generated by CM/ECF.
/Wm* P
JACK SCA LA
Florida Bar No. 169440
JACK P.
Florida Bar 0547808
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Attorneys for Plaintiff, C.M.A.
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COUNSEL UST
Jack A. Goldberger, Esquire
Atterbury. Goldberger & Weiss. P.A.
250 Australian Avenue S.
West Palm Beach, FL 33401
Phone: ([Phone Redacted]
Bruce E. Reinhart, Esquire
Bruce E. Reinhart, PA
250 South Australian Avenue
Suite 1400
West Palm Beach, FL 33401
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Robert Critton, Esquire
Burman Critton Luther & Coleman LLP
515 North Flagler Drive, Suite 400
West Palm Beach, FL 33414
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
Richard H. VVIllits, Esquire
Richard H. Willits, PA
2290 10th Avenue North
Suite 404
Lake Worth, FL 33461
Phone: ([Phone Redacted]
Fax: ([Phone Redacted]
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CIV-80811-MARRall
C.M. A.,
Plaintiff,
v.
Y
EPSTEIN and
Defendants,
DEFENDANT EPSTEIN'S MOTION TO COMPEL PLAINTIFF C.M.A. TO RESPOND TO
DEFENDANT'S FIRST REQUEST TO PRODUCE AND ANSWER DEFENDANT'S
FIRST SET OF INTERROGATORIES, AND TO OVERRULE OBJECTIONS, AND FOR
AN AWARD OF DEFENDANT'S REASONABLE EXPENSES
Defendant, JEFFREY EPSTEIN, by and through his undersigned attorneys,
moves this Court for an order compelling Plaintiff, C.M.A. to respond to Defendant's
First Request To Produce and to answer Defendant's First Sot of Interrogatories, and to
overrule her objections asserted in Plaintiffs Response To Defendant's First Request
To Produce, dated February 13, 2009, and in Plaintiffs Notice of Serving Answers To
Interrogatories, dated February 18, 2009. Defendant further seeks an award of his
reasonable expenses, including expenses, associated with the making of this motion.
Rule 37, Fed.R.CIv.P. (2008); Local Gen. Rules 7.1 and 26.1 H (S.D. Fla. 2008). In
support of his motion, Defendant states:
Prior to the filing of this motion, on April 1, 2009, Defendant's counsel
communicated by telephone with Plaintiffs counsel In a good faith effort to resolve the
discovery issues herein. This motion addresses those discovery Items which remain at
EXHIBIT
C_
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C.M.A. v. Epstein, et al.
Page 2
issue. Also, rather than tile 2 separate motions to compel, Defendant filed one
addressing the production requests and Interrogatories because the discovery Issues
overlap.
Motion To Compel Responses to Production Requests Nos. 1, 2, 4, 5, and 19,
and Answers to Interrogatories Nos. 2, 18, arid 23.
Production Request No. 1
1. Individual and/or joint income tax returns and supporting documentation
Including W-2 and 1099 forms for 2002-2007 and, as well as all records or
documentation relative to the Plaintiffs earnings for the current year.
Response:
Objection. Irrelevant, Immaterial and not reasonably calculated to lead to the discovery
of admissible Information.
Legal Argument Supporting Entitlement to Discovery
Plaintiffs tax returns and supporting documentation are relevant to Plaintiffs
damages claims and, thus, discoverable. Plaintiff's complaint alleges in part that
"beginning in approximately late May or early June of 2002, and continuing until
approximately August of 2003, the Defendant coerced and enticed the impressionable,
vulnerable, and economically deprived then minor Plaintiff to commit various acts of
sexual misconduct." lot Am. Complaint, ¶13. (Plaintiff also refused to answer
Interrogatory no. 2 which sought her employment history for the past ten years asserting
the same general objection).
Such information is both relevant and reasonably calculated to lead to the
discovery of admissible evidence. It Is well settled that relevant Information is
discoverable, even if not admissible at trial, so long as the discovery is reasonably
calculated to lead to the discovery of admissible evidence. Rule 26(b)(1), Fed.R.Clv.P.;
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C.M.A. v. Epstein, et al.
Page 3
Donahay v. Palm Beach Tours & trans., Inc., 242 F.R.D. 685 (S.D. Fla. 2007).
Discoverability of such Information Is governed by Rule 26, Fed.R.Civ.P., pursuant to
which the scope of discovery is broad. Conahav supra, at 686, and cases cited therein.
"Parties may obtain discovery regarding any matter, not privileged, which Is relevant to
the claims or defense of any party involved in the pending action." Id.
Plaintiff's tax returns, along with the requested supporting documentation, for the
six year period, and documents relevant to her current earnings, aro relevant to
Plaintiff's damages claims detailed below herein. Such information would show
Plaintiff's employment and earning history, as well as provide evidence as to how
Plaintiff has been able to function in her daily life before, during and after the alleged
incidents. Was she self-sufficient? Was she able to get out of bed each morning and
support herself? What type of Job did she hold? One's ability to earn a living and be
self-supporting has not only a financial component, but also an
emotional/psychological/mental component.
C.M.A.'s First Amended Complaint.' attempts to allege 32 counts. Counts I
through XXX are purportedly brought pursuant to 18 U.S.C. §2255 — Civil Remedies for
Personal Injuries; Count XXXI Is entitled "Sexual Battery," and Count XXXII is entitled
"Conspiracy to Commit Tortious Assault only against Defendant,
In her answers to Interrogatory nos. 9 and 10, which seek information about
C.M.A.'s damages claims, Plaintiff answered that:
'Defendant's Motion To Dismiss directed to Plaintiff's First Amended Complaint is pending.
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C.M.A. v. Epstein, et al.
Page 4
I have bi-polar disorder and manic depression. I lost my self-esteem. I began
cutting myself on my arms and legs and aevetopea arug problbms. Permanent
injuries are psychological. (Interrog. No. 9).
I am claiming compensation for mental anguish, mental pain, psychic trauma,
and loss of enjoyment of life. These damages will be evaluated by a jury who
will provide their own methods of computation In an amount of at least the
statutory minimum established by 18 U.S.C.A. §2255. (Interrog. No. 10).
In her 1° Amended Complaint, relevant to her damages claims, Plaintiff alleges:
C.MA., has in the past suffered, and will In the future suffer, physical Injury,
pain and suffering, emotional distress, psychological trauma, mental anguish,
humiliation, embarrassment, loss of self-esteem, loss of dignity, invasion .of her
privacy and other damages ... . The then minor Plaintiff Incurred medical and
psychological expanses ... and will in the future suffer additional medical and
psychological expenses. The Plaintiff C.M.A. has suffered loss of income, a
loss of the capacity to earn Income in the future, and a loss of capacity td enjoy
life. These injuries are permanent In nature and the Plaintiff, C.M.A., will
continue to suffer these losses in the future.
(1° Am. Complaint, Counts I — XXX (18 U.S.C. §2255), ¶¶25, 31, 37, 43, 49, 55,
61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, 139, 145, 151, 157,
163, 169, 175, 181, 187, 193; Count XXXI (Sexual Battery), ¶199.)
In each of her "Wherefore" clauses, Plaintiff seeks 'compensatory damages of at
least the minimum provided by law." 18 U.S.C. §2255, pursuant to which Plaintiff
attempts to bring certain of her claims, allows for recovery of 'actual damages." See fn.
2 herein for applicable statutory text.2
As discussed above, the tax returns, and supporting documentation, will provide
direct evidence as to Plaintiffs claimed damages. Such Information does not only go to
(a) 2 Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251,
2251A, 2252, 2262A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury
as a result of such violation may sue In any appropriate United States District Court and
shall recover the actual damages such minor sustains and the cost of the silt, Including
a reasonable attorney's fee. Any minor as described in the preceding sentence shall be
deemed to have sustained damages of no less than $50,000 in value. [Emphasis added.]
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C.M.A. v. Epstein, et el.
Page 5
compensatory or actual damages or loss of Income/loss of capacity to earn Income type
damages, but also her emotIonaUpsychological/mental health type damages. In the
telephone communication between counsel for the respective parties, Plaintiffs counsel
indicated that Plaintiff was not seeking loss of income/earning capacity type damages;
(Defendant is not aware that there has been any formal withdrawal of such damages
claimed); notwithstanding, the information sought Is still relevant and discoverable
based on the additional damages claimed by Plaintiff. The time period will allow
Defendant to compare how Plaintiff was doing in her life prior to, during, and after the
alleged incident. Again, the type of jobs Plaintiff has been able to hold and her earnings
and ability to support herself clearly have not only a financial component, but an
emotional/psychological/mental health component as well. Accordingly, Plaintiffs
objection is required to be overruled, and Defendant Is entitled to the documents
requested.
Production Request No, 2
2. All bills/expenses from any medical doctor, chiropractor, psychologists,
*psych' . mental health counselors (Including any members of the healing arts and
related , i.e. drugs, prescriptions, etc.) you claim you Incurred as a result of the
injuries w c are or may be the subject matter of this lawsuit
Response:
None in our possession. These will be provided upon receipt. Discovery is ongoing.
Legal Argument Supporting Entitlement to Discovery
Plaintiff makes no objection to the documents requested, but has failed to
produce any documents responsive to this request Clearly, the documents are relevant
and discoverable as they go to proof of Plaintiffs claimed injuries. In the April 1, 2009,
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telephone communication Plaintiff's counsel Indicated that Plaintiff was still not in
possession of such documents. The First Request for Production was served on
Plaintiff on January 16, 2009. In her answer to interrogatory no. 11, (Notice of Serving
Answers, dated February 18, 2009, identifies a psychiatrist and a counselor/therapist
from whom she claims she is receiving "treatment or examination for the injuries for
which (she] seeks damages." See Exhibit A hereto for copy C.MA.'s answer to
Interrogatory no. 11. Regarding the date of treatment from the psychiatrist — she
asserts "I would defer to the Doctor's records." She claims the treatment from the
counselor/therapist has been "since high school" and "ongoing." Defendant is entitled to
the documents sought and Plaintiff is in control of and has the ability to obtain the
requested medical bills and expenses she claims were incurred as result of her Injuries
claimed in this action. Plaintiff should be required to immediately produce the requested
documents to Defendant.
Production Request No. 4
4. All reports, evaluations, recommendations and/or analysis submitted by
any expert which relate to or cover the incident which Is the subject matter of this
lawsuit and/or any Injuries, damages or losses you allege wore caused by the incident.
Response:
Any reports generated by any retained experts not yet disclosed are protected by the
work product privilege. Notwithstanding same, none.
Legal Argument Supporting Entitlement to Discovery
Plaintiff, through counsel, in the April 1, 2009, telephone communication,
indicated that she does not have any responsive documents and stands by her
objection. Rule 26 provides In relevant part —
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2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(aX1), a party must
disclose to the other parties the identity of any witness It may use at trial. to present
evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report—prepared and signed by the witness-If
the witness is one retained or specially employed to provide expert testimony In the
case or one whose duties as the party's employee regularly Involve gMng expert testimony.
The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(II) the data or other Information considered by the witness In forming them;
(ill) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, Including a list of all publications authored In the
previous 10 years;
(v) a list of all other cases in which, during the previous four years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony In the
case.
(C) Time fo Disclose Expert Testimony. A party must make these disclosures at the
times and In the sequence that the court orders. Absent a stipulation or a court order, the
disclosures must be made:
(I) at least 90 days before the date set for trial or for the case to be ready for trial; or
(II) if the evidence is Intended solely to contradict or rebut evidence on the same
subject matter Identified by another party under Rule 26(aX2XB), within 30 days after the
other party's disclosure.
• • •
(e) Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure under Rule 26(a)—or who has
responded to an Interrogatory, request for production, or request for admission—must
supplement or correct its disclosure or response:
(A) In a timely manner If the party learns that in some material respect the
disclosure or response is Incomplete or incorrect, and if the additional or corrective
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Information has not otherwise been made known to the other parties during the
dtscuveiypu 14,
(B) as ordered by the court
(2) Expert Witness. For an expert whose report must be disclosed under Rule
26(a)(2)(B), the party's duty to supplement extends both to Information Included In
the report and to Information given during the expert's deposition. Any additions or
changes to this information must be disclosed by the time the party's pretrial disclosures
under Rule 26(a)(3) are due.
Accordingly, Defendant requests that should Plaintiff be in possession of any
such reports, evaluations, recommendations and/or analysis prepared by an expert
expected to testify at trial or deposition, or to be used by an expert expected to testify at
trial or deposition, that such documents be produced as required by Rule 26,
Fed.R.CIv.P. quoted above.
Production Request No. 5
5. All medical reports and/or records from doctors, physicians, (Including
psychologists, psychiatrists, mental health counselors), hospitals, drug or alcohol
facilities or any other person or entity who has rendered treatment to or examined you
for any reason after the Incident(s) which is the subject matter of this lawsuit.
Response:
None in our possession. Discovery is ongoing.
Legal Argument Supporting Entitlement to Discovery
Once again, Plaintiff should be required to immediately produce the requested
documents. In support of ordering immediate production, Defendant reaileges and
incorporates his 'Legal Argument Supporting Entitlement To Discovery" to request no. 5
above herein.
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Interrogatory No. 2
2. List the names, business addresses, telephone and coil phone numbers,
dates of employment, Immediate supervisor (name and address) and rates of pay
regarding all employers, Including self-employment, for whom you have worked In the
past 10 years; this Includes listing all sources of income you have received. Answer this
question by year, I.e. 1998 - 2009.
Answer:
Objection. Irrelevant, Immaterial and not reasonably calculated to lead to discovery of
admissible evidence.
Legal Argument Supporting Entitlement to Discovery
Such Information is clearly relevant to the damages and injuries claimed by
Plaintiff in this action. Plaintiffs complaint alleges in part that "beginning in
approximately late May or early June of 2002, and continuing until approximately
August of 2003, the Defendant coerced and enticed the impressionable, vulnerable, and
economically deprived then minor Plaintiff to commit various acts of sexual misconduct."
1" Am. Complaint, 1113. (See discussion of Production Request no. 1 above herein).
Such information is both relevant and reasonably calculated to lead to the
discovery of admissible evidence. It Is well settled that relevant information is
discoverable, even if not admissible at trial, so long as the discovery Is reasonably
calculated to lead to the discovery of admissible evidence. Rule 26(b)(1), Fed.R.Clv.P.;
Donahay v. Palm Beach Tours & trans.. Inc„ 242 F.R.D. 685 (S.D. Ha. 2007).
Discoverability of such information is governed by Rule 26, Fed.R.Clv.P., pursuant to
which the scope of discovery is broad. Donahay, supra, at 686, and cases cited therein.
Parties may obtain discovery regarding any matter, not privileged, which is relevant to
the claims or defense of any party involved In the pending action." Id.
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Plaintiff's employment and earnings history prior to and after the alleged
Incidents are relevant to her claimed damages and Injuries. Such Information would not
only evidence Plaintiffs employment and earning history, but also provide evidence as
to how Plaintiff has been able to function in her daily life before, during and after the
alleged incidents. Was she self-sufficient? Was she able to get out of bed each
morning and support herself? What type of Job did she hold? One's ability to earn a
living and be self-supporting has not only a financial component, but also an
emotional/psychological/mental component.
C.M.A.'s First Amended Complaint attempts to allege 32 counts. Counts I
through XXX are purportedly brought pursuant to 18 U.S.C. §2255 - Civil Remedies for
Personal injuries; Count XXXI is entitled "Sexual Battery," and Count XXXII is entitled
"Conspiracy to Commit Tortlous Assault only against Defendant,
in her answers to interrogatory nos. 9 and 10, which seek Information about
C.M.A.'s damages claims, Plaintiff answered that:
I have bi-polar disorder and manic depression. I lost my self-esteem. I began
cutting myself on my arms and legs and developed drug problems. Permanent
Injuries are psychological. (Interrog. No. 9).
I am claiming compensation for mental anguish, mental pain, psychic trauma,
and loss of enjoyment of life. These damages will be evaluated by a Jury who
will provide their own methods of computation in an amount of at least the
statutory minimum established by 18 U.S.C.A. §2255. (Interrog. No. 10).
In her 1si Amended Complaint, relevant to her damages claims, Plaintiff alleges:
C.M.A., has in the past suffered, and will In the future suffer, physical injury,
pain and suffering, emotional distress, psychological trauma, mental anguish,
humiliation, embarrassment, loss of self-esteem, loss of dignity, invasion of her
privacy and other damages ... . The then minor Plaintiff incurred medical and
psychological expenses ... and will in the future suffer additional medical and
psychological expenses. The Plaintiff C.M.A. has suffered loss of income, a
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loss of the capacity to earn income in the future, and a loss of capacity to enjoy
life. These Injuries are permanent in nature and the Plaintiff, G.M.A., will
continue to suffer these losses In the future.
(1st Am. Complaint, Counts I - XXX (18 U.S.C. §2255), 31, 37, 43, 49, 55,
61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, 139, 145, 151, 157,
163, 169, 175, 181, 187, 193; Count XXXI (Sexual Battery), ¶199.)
In each of her "Wherefore" clauses, Plaintiff seeks 'compensatory damages of at
least the minimum provided by law." 18 U.S.C. §2255, pursuant to which Plaintiff
attempts to bring certain of her claims, allows for recovery of "actual damages." See fn.
2 herein for applicable statutory text.
As discussed above, C.M.A.'s employment and earnings history will provide direct
evidence as to Plaintiffs claimed damages. Such Information does not only go to
compensatory or actual damages or loss of income/loss of capacity to earn income type
damages, but also her omotional/psychological/mental health type damages. In the
telephone communication between counsel for the respective parties, Plaintiff's counsel
indicated that Plaintiff was not seeking loss of income/earning capacity type damages;
(Defendant Is not aware that there has been any formal withdrawal of such damages
claimed); notwithstanding, the Information sought Is still relevant and discoverable
based on the additional damages claimed by Plaintiff. The time period will allow
Defendant to compare how Plaintiff was doing In her life prior to, during, and after the
alleged Incident. Again, the type of jobs Plaintiff has been able to hold and her earnings
and ability to support herself clearly have not only a financial component, but an
emotionallpsychological/mental health component as well. Accordingly, Plaintiff's
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objection is required to be overruled, and Defendant is entitled to the Informs(ion sought
In the Interrogatory.
Interrogatory No. 18
18. List separately the names, addresses and phone numbers of anmates,
excluding Mr. Epstein, with whom you have had sexual activity since age 10 (by year)
up through your current age. Describe the nature of sexual activity, the date(s) and
whether you received money or other consideration from the person.
Answer.
Objection. Relevance and overbroad.
Lanai Argument Supporting Entitlement to Discovery
Plaintiffs only objection is relevancy and overbroad, without any factqal support
or showing as required by Rule 26(c) and Local Gen. Rule 26.1 H (S.D. Fla. 2008).
Nowhere does C.M.A. explain how such interrogatory is overbroad.
It is well settled that relevant information Is discoverable, even if not admissible at
trial, so long as the discovery Is reasonably calculated to lead to the discovery of
admissible evidence. Rule 26(b)(1), Fed.R.Civ.P.; Donahav v. Palm Beach Tours &
trans.. Inc. 242 F.R.D. 685 (S.D. Fla. 2007). Discoverability of en alleged
victim's/plaintiff's sexual conduct or activity In civil cases is governed by Rule 26,
Fed.R.Civ.P., pursuant to which the scope of discovery is broad. Donahav, supra, at
886, and cases cited therein. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the claims or defense of any party Involved in the
pending action .° Id.
In accordance with Rule 26, the discovery sought regarding Plaintiffs sexual
activity with males and the nature thereof, including whether she received any
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compensation or consideration therefore, In Interrogatory no. 18, are all relevant to
Plaintiffs damages claims and the type of Injury she claims she has, suffered.
Defendant has no other means of obtaining such information and obtal,ning such
Information through Plaintiff will better protect the confidentiality until the Court can
make a determination in accordance with the procedures under Rule 412(c) whether
such information will be admissible at trial. See Rule 412(c), Fed.R.Civ.P. Defendant
will agree to an order keeping the confidentiality of the information obtained through
discovery.
The evidence sought is relevant based on the facts and theories of this action.
C.M.A.'s First Amended Complaint attempts to allege 32 counts. Counts I through XXX
are purportedly brought pursuant to 18 U.S.C. §2255 — Civil Remedies for Personal
Injuries; Count XXXI is entitled "Sexual Battery," and_ Count XXX1LIs entitled
"Conspiracy to Commit Tortious Assault only against Defendant,
In her answers to interrogatory nos. 9 and 10, which seek Information about
C.M.A.'s damages claims, Plaintiff answered that:
I have bi-polar disorder and manic depression. I lost my self-esteem. I began
cutting myself on my arms and legs and developed drug problems. Permanent
Injuries are psychological. (Interrog. No. 9).
I am claiming compensation for mental anguish, mental pain, psychic trauma,
and loss of enjoyment of fife. These damages will be evaluated by a jury who
will provide their own methods of computation In an amount of at least the
statutory minimum established by 18 U.S.C.A. §2255. (Interrog. No. 10).
In her lot Amended Complaint, relevant to her damages claims, Plaintiff alleges:
C.M.A., has In the past suffered, and will in the future suffer, physical injury,
pain and suffering, emotional distress, psychological trauma, mental anguish,
humiliation, embarrassment, loss of self-esteem, loss of dignity, invasion of her
EFTA02745786
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privacy and other damages ... . The then minor Plaintiff Incurred medical and
tai medical and
psychological expenses. The Plaintiff C.M.A. has suffered loss of Income, a
loss of the capacity to earn income In the future, and a loss of capacity to enjoy
life. Those injuries are permanent in nature and the Plaintiff, C.M.A., will
continue to suffer these losses in the future.
(13` Am. Complaint, Counts I — XXX (18 U.S.C. §2255), ¶¶25, 31, 37, 43, 49, 55,
61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, 139, 145, 151, 157,
163, 169, 175, 181, 187, 193; Count XXXI (Sexual Battery), ¶199.)
In each of her 'Wherefore" clauses, Plaintiff seeks "compensatory damages of at
least the minimum provided by law." 18 U.S.C. §2255, pursuant to which Plaintiff
attempts to bring certain of her claims, allows for recovery of "actual damages? See fn.
2 herein for applicable statutory text.
C.M.A. also alleges that Defendant's conduct was 'sexual assault and child
abuse of a then minor." ¶2. She alleges that "beginning in approximately late May or
early June of 2002, and continuing until approximately August of 2003. the. Defendant
coerced and enticed the Impressionable, vulnerable, and economically deprived then
minor Plaintiff to commit various acts of sexual misconduct" ii13.
These acts included, but were not limited to, fondling and inappropriate and
Illegal sexual touching of the then minor Plaintiff, sexual misconduct and
masturbation of the Defendant In the presence of the then minor Plaintiff,
soliciting and enticing the then minor Plaintiff to engage In sexual acts with
another female in EPSTEIN's presence, and encouraging the then minor
Plaintiff to become involved In prostitution; Defendant committed numerous
criminal sexual offenses against the then minor Plaintiff including, but not
limited to, sexual battery, solicitation or prostitution, procurement of a minor for
the purpose of prostitution, and lewd and lascivious assaults upon the person of
the then minor plaintiff. (1st Am. Complaint ¶13).
The Information sought Is clearly relevant to the Injuries and damages claimed by
Plaintiff. Tho nature of her claimed Injuries and damages are such that Defendant is
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entitled to evidence which would show the nature of her relationship with males,
whether she has suffered or engaged In other acts of sexual misconduct or activity as
alleged In her complaint, and whether she suffered injury and damages as a result of
the other claimed sexual misconduct or activity. See United States v. Bear Stops, 997
F.2d 451 (81h Cir. 1993)(Defendant charged with sexual abuse of six year old boy was
entitled to admission of evidence relating to victim's sexual assault by 3 older boys to
establish alternative explanation for why victim exhibited behavioral manifestations of
sexually abused child.).
In further support of Defendant's motion, a copy of Balas v. Ruzzo 703 So.2d
1076 (Fla. 5fh DCA 1997), rev. denied, 719 So.2d 286 (Fla. 1998), is attached hereto as
Exhibit B as it is on point to the discovery Issues in this action, and the relevancy and
discoverability of Plaintiffs history of sexual activity and any payment, therefore. See
interrogatories 8, 22 and 30 propounded In the Bales case and footnote 1 herein. 3
Additionally and significantly, in other pending state court civil actions against Defendant
EPSTEIN attempting to assert similar claims and damages, the Circuit Court Judges
have already ruled that such information is discoverable as it Is relevant to the damages
claims of Plaintiff. See Composite Exhibits C and D hereto. Composite Exhibit C
are the Orders, dated February 23, 2009, entered in the case of A.C. v. Epstein, and
, Case No. 5020080A025129 MB AI, 15th Judicial Circuit, In and For Palm Beach
County, State of Florida, which granted Defendant's motion to compel therein directed
3 In Bales v. Ruzzo supra, the Plaintiffs alleged a multicount complaint including claims for
"coercion of prostitution" pursuant to §796.09, Ha. Stat.; for battery for the unwanted and
offensive touching of petitioners' bodies; false imprisonment for physically confining the
petitioners against their will; invasion of privacy; and intentional infliction of emotional distress.
EFTA02745788
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C.M.A. v. Epstein. et el.
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to discovery identical to Interrogatory no. 18 above. (In the A.C. case, the Plaintiff
answered without objection Interrogatories identical to nos. 19, 20, and 21 herein.)
Composite Exhibit D is a portion the transcript from a March 3, 2009 hearing on
Defendant's motion to compel discovery in the case of Jane Doe ii v. Epstein, and
, Case No. 502008CA020614 MB AF, 15th Judicial Circuit Court, In and For Palm
Beach County, Stato of Florida. Again, the Circuit Court Judge determined that the
information sought is relevant to the Issue of damages and, thus, discoverable.
Accordingly, Plaintiffs objections are required to be overruled and Defendant is
entitled to the discovery sought.
Interrogatory No. 23
23. State the names, addresses, ages, phone numbers and dates of all
females whom you claim were brought by you to Mr. Epstein's home to give him a
massage or for any other reason. As to each female, state the amount of money you
claim you were paid to bring each female.
Answer:
A.L. Age: 22
West Palm Beach, FL
I was paid $100.00
Legal Argument Supporting Entitlement to Discovery
Counsel for the respective parties also discussed this interrogatory In an effort to
come to a resolution. Plaintiff does not object to the discovery requested. Plaintiffs
counsel indicated that he had a "problem" disclosing the Identity of A.L. to the extent
she was a minor at the time. Defendant would agree to an order protecting public
disclosure of the true Identity of A.L. If she were Indeed a minor at the time; however, as
part of the order, Plaintiff should also be required to provide Defendant with the full
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C.M.A. v. Epstein, et al.
Page 17
name of A.L. so that Defendant may conduct meaningful discovery. It is Plaintiff who
claims she brought A.L. to Epstein's home as part of the alleged "scheme: In addition,
Plaintiff failed to provide any date or dates as to when she brought A.L. to Epstein's
home. Plaintiff's counsel indicated they would attempt to provide this Information.
Accordingly, in granting Defendant's motion to compel discovery, with respect t
this interrogatory, Plaintiff should be required to provide the full name of A.L. (which
Defendant agrees to keep confidential at this time), the date or dates which she brought
A.L. or any female to Epstein's home, and how much she was allegedly paid each time.
WHEREFORE, Defendant requests that this Court grant Defendant's motion to
compel and award Defendant's reasonable expenses, including attorney's fees,
associated with this motion.
Rule 7.1 Certification
I hereby certify that counsel for the respective parties communicated by
telephone in a good faith effort to resolve the discovery issues prior to the filing of this
motion to compel. Some of the issues were resolved or in the prooess of being
resolved.
Robert D. C
Attornoy for °fondant Epstein
riii n, Jr.
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 re entitled on the following Service List in the
manner specified by CM/ECF on thi ay of April 2009
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Richard Horace Willits, Esq.
Richard H. WiMIS, Y.A.
2290 10th Avenue North
Suite 404
Lake Worth, FL 33461
[Phone Redacted]
Fax: [Phone Redacted]
Counsel for Plaintiff C.M.A.
yeelrhw4hotmail,corn
Jack Scalgla, Esq.
Jack Pat Esq.
Seamy Denney Scarola Barnhart
Shipley, PA.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
[Phone Redacted]
Fax: [Phone Redacted]
ISxasearcvlaw.corn
Iphasearcvlaw.com
Co-Counsel for Plaintiff
Jack Alan Goldberger, Esq.
Atteibtai y Gukiberger & Webs, P.A.
250 Australian Avenue South ,
Suite 1400
West Palm Beach, FL 33401-5012
[Phone Redacted]
Fax: [Phone Redacted]
bgesodthellsouth.net
Counsel for Defendant Jeffrey Epstein •
Bruce Reinhart, Esq.
& Bruce E. Reinhart, P.A.
250 S. Australian Avenue
Suite 1400
West Palm Beach, FL 33401
[Phone Redacted]
Fax: [Phone Redacted]
ecf(5).brucerelnhartlaw
Counsel for Defenda
Respectfully subd ,
By:
ROBERT D. ITTON, JR., ESQ.
Florida Bar •. 224162
corn
MICHAEL J. PIKE, ESQ.
Florida Bar #817296
molketalbciciaw.com
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Fiagler 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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C.M.A. vs. Epstein, et al.
Case No.: OS.CV-SOSli-CrV-sfAR.RAIMM
Plaintiff's Answers to Defendant's First Intarogatories
School behavioral problems, received counseling prior to the In~IJunt
8. Did you consume any alcoholic beverages or take any drugs or medications
within 12 hours before the time of each incident(s) described in the complaidt? If
so, state the type and amount of alcoholic beverages, drugs, or mediCation which
were consumed, and when (dates) and where you consumed them.
•
ANSWER
1. On one occasion I had taken "Morning Glory" and "Angel Trurripets". I
do not recall the date.
2. On another occasion I used cocaine powder. I do not recall the:date.
9. Describe each Injury (physical, emotional, mental) for which you are claiming
damages in this case, specifying the part of your body that was injured, the
nature of the Injury and as to any Injuries you contend are permanent, the effects
on you that you claim are permanent.
ANSWER
I have bipolar disorder and manic depression. I lost my self-esteem. I
began cutting myself on my arms and legs and developed drug problems.
Permanent Injuries are psychological.
10. Please state each item of damage that you claim, and include in your answer the
count to which the Item of damages relates; the factual basis for each Item of
damages; and an explanation of how you computed each item of damages,
Including any mathematical formula used.
ANSWER
I am claiming compensation for mental anguish, mental pain, psychic
trauma, and loss of enjoyment of life. These damages will be evaluated by
a jury who will provide their own methods of computation In an amount of
at least the statutory minimum established by 18 U.S.C.A. § 2255;
Discovery Is ongoing.
11. List the names and business addresses of each physician (Including psychiatrist,
psychologist, chiropractor or medical provider) who has treated or examined you,
13 IA /r
EXHIBIT n
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....Case .95.06:cm-60119-KAM Document 207-4 Entered on FLSD Docket 07/20/2009 Page. 20 of 46.
Case 9:08-cv-80811-KAM Document 54-2 Entered on FLSD Docket 04/02/2009 Page 2 of 2
C.M.A. vs. Epstein, et al.
Case No.: 08-CV-S01311-CIV-
Plaintiff's Answers to Defendant's F'vst
and each medical facility where you have receNed any tieuhnent or exann
for the Injuries for which you seek damages In this case; and state as to each the
date of treatment or examination and the injury or condition for which you were
examined or treated.
ANSWER
Dr. Serge Thys (Psychiatrist) Date: I do not recall the date. I would defer
2151 451h Street to the Doctor's records.
West Palm Beach, FL 33407
Susan Pope (Counselor/Therapist) Date: Since high school. Ongoing.
Parent Child Center
2001 W. Blue Heron Boulevard
12. List the names and business addresses of all other physicians, medical facilities,
rehab facilities (drug, alcohol or psychiatric) or other health care' providers
including psychiatrist, psychologist, mental health counselor and chiropractors by
whom or at which you have been examined or treated In the past 10 years; and
state as to each the dates of examination or treatment and the condition or injury
for which you were examined or treated.
ANSWER
Good Samaritan Hospital (3/12/04, 3125/08)
Child Birth
1309 N Flagier Dr
West Palm Beach, FL 33401
St. Mary's Hospital (4/07)
DNC
901 45th Street
West Palm Beach, FL 33407
Gloria C. Hakkarainen, MD
Ob/Gyn
2925 10th Avenue North, Suite 306
Palm Springs, FL. 33461
Theodore Ritota, DDS
Dentist
14
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Pa 1 of B '
Case 9:08-cv-80811-KAM Document 54-3 Entered on FLSD Docket 04/02/2009 PDu ge 1 of 8
Wax
703 So.2d 1076
703 So.2d 1076,22 Fla L. Weekly D2375, 23 Fla L. Weekly D169
(Cite ass 703 So.2d 1076)
Page 1
District Court of Appeal of Florida,
Fifth District
Kimberly GALAS and Teresa Shumate, Petitioners,
v.
Marjorie A. RUZZO, and Exec, Inc., etc., Re-
spondents.
No. 97-82.
Oct. 10, 1997.
As Modified on Grant of Clarification Jan. 2, 1998.,
rev . dev,ted ;no t %., -z ek 2516 t. .
Plaintiffs brought action against alleged house of Wea
prostitution for, inter ells, coercion ormiastitution.
The Circuit Court, BrOVard County, NM Pound,
granted in part defendants' motion to compel dis-
covery. Plaintiffs filed petition for writ of certior-
ari. The District Court of Appeal, W. Sharp, J., held
that evidence of plaintiffs' past prostitution and
their revenues relating to such activities was dis-
coverable.
Petition denied.
Harris, J., concurred specially and filed opinion.
West Headnotes
U) Pretrial Procedure 307A e=i.31.
MA Pretrial Procedure
307A11 Depositions and Discovery
307AII(A) Discovery In General
307Ak31 k. Relevancy and Materiality.
Most Cited Cases
Discovery in civil cases must be relevant to subject
matter of case and must be admissible or reason-
ably calculated to lead to admissible evidence.
West's F.S.A. RCP Rule 1.280(b)(1).
(2) Pretrial Procedure 307A aZ=i31
307A Pretrial Procedure
307A11 Depositions and Discovery
307A11(A) Discovery in General
307Ak31 k. Relevancy and Materiality.
Most Cited Cases
Party may be permitted to discover: evidence that
would be inadmissible at trial, if It Would lead to
discovery of relevant evidence. Weals F.S.A. RCP
Rule 1.280(bX1).
(3] Pretrial Procedure 307A €36..1.
307A Pretrial Procedure
307AII Depositions and Discovery
307AII(A) Discovery in General
307A$36 Particular Subjects of Disclos tine -
307Ak36.1 k. In General. Most Cited
Cates
Evidence of plaintiffs' past prostitution and their
revenues relating to such activities, including activ-
ities with alleged house of prostitution against
which they had filed suit, was discoverable, where
plaintiffs brought action not only for coercion of
prostitution, but also for battery, false imprison-
ment, invasion of privacy, intentional Infliction of
emotional distress, violation of their civil rights,
and racketeering. Violent Crime Control and Law
Enforcement Act of 1994, § 40302, 142 U.S.C.A. §
13981; West's P.S.A. ¢{ 772.014, 796.09: West's
P.S.A. RCP Rule 1).
*1076 Richard E. Heather Fisher US -
say, of Spriggs & Tallahassee, for Peti-
tioners.
Mark S. Peters of Arnari, Thedac & Eisenmenger,
P.A., Cocoa, for Respondents.
W. SHARP, Judge.
Bales and Shumate petition this court for a writ of
certiorari to review certain portions of the lower
court's order which granted, in park, a motion to
compel discovery filed by respondents Rurzo and
Exec, Inc. Petitioners argue that those portions de-
part from the essential requirements of law and will
cause them irreparable harm because they will be
0 2009 Thomson ReutenfWest. No Claim to Orig. US Gov. Works.
EXHIBIT
It
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703 So.2d 1076
703 So.2d 1076, 22 Fla. I. Weekly O2375, 23 Fla. L. Weekly D169
(Cite am 703 So.2d 1076)
compelled to disclose intimate details of their sexu-
al history. We.A—alizia 'o is m, tie" ' ,all nfr.ekrnxd
Bales and Shumate filed suit against Ruuo and Ex-
ec, Inc., doing business as "The Boardroom." Ac-
cording to Batas and Shumate, The Boardroom op-
erates ostensibly as "1077 a leisure spa but actually
Is a house of prostitution. Bales worked at The
Boardroom from December 1993 until February
1996; Shumate worked there from October 1992
until March 1996. Runts, the sole officer and
shareholder of Exec, Inc., collected about fifty to
sixty percent of each employees earnings from per-
forming sexual acts.
According to Bales and Shumate, Ruzzo exerted
mental and emotional control over her employees
and thus she was able to exploit them as prostitutes.
Ruzzo required her employees to pay her substan-
tial sums of money to attend "metaphysical work-
shops" conducted by Russo or persons associated
with her. At the work place, the employees were re-
quired to participate in religious and quasi-religious
"circles," rituals and incantations. These practices
were allegedly designed to break down the person-
of the women who worked for Ruzzo and to
dependency and loyalty to herself. At one
time when the earnings of a new employee were
missing and believed to be stolen, Russo required
that the petitioners be strip searched and body cav-
ity searched. Ruzzo caused the petitioners to be-
lieve their continued employment was dependent on
their submission to these searches and that they
might be arrested on felony charges If they refused
to submit to the searches.
Bales and Shumate% second amended complaint
against Russo contains seven counts. Count I is an
action for coercion of prostitution pursuant to sec-
tion 796.09, Florida Statutes. Petitioners allege the
requirement that they perform sexual acts to retain
their employment constitutes inducement end coer-
cion to engage in prostitution. Count II is a claim
for battery for the unwanted and offensive touching
of the petitioners' bodies. Count 111 Is a claim for
false imprisonment for physically confining the pe-
Page 2
titioners against their will. Count IV alleges that re-
spondent? actions constituted an invasion of peti-
tioners' privacy. Count V Is a claim ror the inten-
tional infliction of emotional distress.,Count VI al-
leges a civil rights action-that respondents have vi-
olated petitioners' right to be free from crimes of vi-
olence motivated by gender within the meaning of
42 U.S.C. section 13981. Finally, count VII seeks
civil remedies for criminal practices rir racketeering
pursuant to section 772.104, Florida:Statutes. The
petitioners claim that they suffered emotional pain,
anguish, humiliation. Insult, Indignity, loss of self-
esteem, inconvenience. hurt and emotional distress.
They seek an award of general and punitive dam-
ages, among other relief.
The discovery to which the petitioners are being re-
quired to respond Is as follows:
I.
Interrogatory Sr. Please advise how long have you
been engaged in prostitution....
rt.
Interrogatory 22: State with specificity the man-
ner in which the acts as desoribed In your Com-
plaint have materially affected hoW you Interact
with your husband, boyfriend. fiancee' [sic) or
any other individual of the opposite sex.
Request for Production 30: A copy of any photo-
graphs, movies or videotapes in which you per-
formed sexual acts and/or simulated sexual acts
in exchange for money or other consideration.
IV.
Interrogatory 16: Please list the names, addresses,
telephone numbers and rates of pay for all em-
ployers for which you worked including the
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3
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703 So.2d 1076
703 So.2d 1076,22 Fla. L. Weekly 132375, 23 Fla. L. Weekly D169
(Cite ass 703 Sold 1076)
nature of the work, during the five years immedi-
et•Ay 4 data of -inple•yaw• • mph the
Boardroom and from the date of your termination
with the Boardroom to the present, providing the
names of your immediate supervisors at each
place of employment and the reason for your
leaving each place of employment.
V.
interrogatory 26: Please state your total income
while employed at the Boardroom, and state the
source of that income Including any income from
other employment or •1078 income earned from
prostitution other than at the Boardroom.
VI.
Request for Production 34: Business records from
any selfemployment or owned business ventures
in the last 5 years, including any records or list of
customers, "special customer lists" or "sugar
daddys list."
[um Discovery in civil cases must be relevant to
the subject matter of the case and must be admiss-
ible or reasonably calculated to lead to admissible
Oil to v. evidence. See Allstate Insurance Co. non,
655 So.2d 91 (Fla.1995). 653
So24 1030 (Pla.1995); v. Star l ust Cruis-
ers, Inc.. 690 So.2d 743 (F a. th DCA 1997). The
concept of relevancy Is broader in the discovery
context than in the trial context and a party may be
permitted to discover evidence that would be Inad-
missible at trial, if it would lead to the discovery of
relevant evidence. Meats; Amenie. Florida Rule of
Civil Procedure 1.280(b)(1) delineates the proper
scope of discovery:
In General. Parties may obtain discovery regard-
leg any matter, not privileged, that is relevant to
the subject matter of the pending action, whether
It relates to the claim or defense of the party
seeking discovery or the claim or defense of any
other party, Including the existence, description,
Page 3
nature, custody, condition, and location of any
honks. documents, or other tangible things and
the identity and location of persons having -
ledge of any discoverable matter. It Is not ground
for objection that the information sought will be
Inadmissible .at the trial if the information sought
appears reasonably calculated to Iced to the dis-
covery of admissible evidence.
Nonetheless, the discovery of certain kinds of in-
formation may cause material injury ,of an Irrepar-
able nature. This includes the "cat-out-of-the-bag"
material that could be used to lillure another person
or party outside the context of the litigation, materi-
al protected by privilege, trade secrets or work
product Discovery was never Intended to be used
as a tactical tool to harass, embarrass or annoy
one's adversary. Rather, pretrial discovery was im-
plemented to simplify the issues in a case, to elim-
inate the elements of surprise, to encourage the set-
tlement of cases, to avoid the cost of litigation, and
to achieve a balanced search for the both to ensure
a fair trial. Elkins v. Syken, 672 Sold 517 (Fla.1996).
Here the petitioners argue that the information
sought to be discovered regarding prostitution and
their sexual activities was propounded solely to em-
barrass them and to invade their right to privacy.
The petitioners also claim that this information is
privileged under section 796.09 and is not calcu-
lated to lead to evidence which would be admiss-
ible at trial.
Section 796.09 provides a person with a civil cause
of action for compensatory and punitive damages
against anyone who coerces that person into prosti-
tution, who coerces that person to remain in prosti-
tution, or who uses coercion to collect or receive
any part of that person's earnings' derived from
prostitution. In the course of litigation under this
section, any transaction about which a plaintiff test-
ifies or produces evidence does sto subject the
plaintiff to criminal prosecution or to any penalty or
forfeiture. In addition, any testimony or evidence or
any information produced by the plaintiff or wit-
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Entered on FLSD Docket 07/20/2009 Page 24. of 46
f 8
Document 54-3 Entered on FLSD Docket 04/02/2009 P aage ge4o 4 of 8
703 So.2d 1076
703 So.2d 1076, 22 Fla. L. Weekly 1)2375. 23 Fla. L. Weekly DI69
(Cite ti t 703 So.2d 1076)
ness for the plaintiffs cannot be used against the
plenums or witness hi any ud
proceeding, except one for perjury.
Section 796.09(5) specifically provides that it is not
a defense that the plaintiff was paid or otherwise
compensated for prostitution, that the plaintiff had
engaged in prostitution prior to any involvement
with the defendant or that the plaintiff made no at-
tempt to escape from the defendant. Section
796.09(6) provides that convictions for prostitution
or prostitution-related offenses are Unwind:y:61e for
the purpose of attacking the plaintiffs' credibility.
This legislation was the result of the Florida Su-
preme Court Gender Bias Study Commission,
which conducted an extensive investigation of pros-
Utation in this state. The Commission's activities
included Interviews with law enforcement and cor-
rections personnel,*1079 judges, public defenders,
prosecutors, drug rehabilitation counselors, social
workers, medical personnel, prostitutes, clients and
pimps. The Commission found prostitution to be
prevalent and uniform throughout the state and law
enforcement largely unable to deter it under pre-
vailing social attitudes and judicial practices. The
Commission further found that prostitutes are often
victims of economic, physical, and psychological
coercion, that roost persons do not chose to become
prostitutes, but do so to survive, and that ninety
percent of street prostitutes, both adult and chil-
dren, are controlled by pimps who use a variety of
coercive methods to maintain this control. The
Commission determined that clients and pimps are
rarely prosecuted and, when prosecuted, receive
light sentences; whereas prostitutes, who are mainly
females, arc frequently prosecuted and receive
harsher treatment in the courts. The Commission
recommended changes in the methods of interven-
tion in prostitution from punitive to therapeutic,
changes In the law to require more equal treatment
by the courts of the prostitute in relation to the cli-
ent and the pimp and to lessen the incentive to
traffic in human flesh by giving the prostitute ac-
cess to the judicial system without first having to be
arrested.
Page 4
Under section 796.09, the petitioners' Prior involve-
ment in prostitution and their eandngs Gorr prosti-
tution would be Irrelevant. Hence discovery should
not be permitted because such infortnatIon would
not be admissible at trial nor would it be reasonably
calculated to lead to evidence ultimately admissible
at trial. Even though the scope of dis9overV is gem
tally quite broad, section 796.09 is designed to en-
courage prostitutes to sue their pimps. Thus the
usually broad scope of discovery may be constric-
ted so that prostitutes will not be embarrassed, har-
assed or hindered in their actions. •
(3) Had the petitioners brought their lawsuit against
Ruzzo and The Boardroom only under section
796.09, evidence of petitioners' past prostitution,
including with the Boardroom, and their earnings
relating to such activities, may not have been dis-
coverable. However, the petitioners filed a multi-
count complaint for compensatory and punitive
damages, alleging numerous causes of action
against the respondents These other causes carry
no such protection from discovery. Since the in-
formation sought by discovery may be relevant or
may lead to the discovery of admissible evidence In
one or more of these other causes of action or to
determination of damages, we cannon conclude that
the trial court departed from the essential r uire-
ments of law in granting this discovery. See
v. 778 Bank of the Keys, 687 Sold 895 .
DCA 1997) (by alleging fraud as well as breach of
contract, purchaser placed at issue her reliance on
venders' assertions, the veracity of financial docu-
ments she submitted to the vender, and the state of
her mental health, including memo& problems she
was experiencing at the time of the alleged tortious
conduct, thus deposition questions concerning her
state of mind were relevant).
Petition for Writ of Certiorari DENIED.
THOhfPSON, 1., concurs.
HARRIS, 3., concurs specially with opin-
ion.HARRIS, Judge, concurring specially:
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703 So.2d 1076
703 Sold 1076, 22 Fla. L Weekly D2375, 23 Fla. L Weekly 13169
(Cite as: 703 So.2d 1076)
Them is a temptation in cases such as this to inquire
which, the poi or the imam, IS Imbued vetch dre
darker hue. Indeed that may ultimately be the ques
tion uppermost in the Jurors' minds. But the issue
presently before us is simply whether the pot, in or-
der to establish the parties' comparative complex-
ion, may discover the historical condition and the
inherent characteristics of the kettle.
We are hare involved with parties that the limited
record before us indicates were co-conspirators in a
joint effort to violate Florida's laws against prosti-
tudon. The defendants are the owner/operators of a
"social club" whose primary service is prostitution;
the plaintiffs am employees of the club who
provide such services. The employees are suing the
owner/operators for, among other counts, taking ad-
vantage of their vulnerabilides ("coercing' them to
be prostitutes) through manipulation and exploita-
tion. In order to prepare a defense to the action, de-
fendants have filed certain interrogatories for the
employees to answer. These interrogatories*1080
request such information as how long the employ-
ees have been engaged in prostitution; how the em-
ployees have been affected by the defendants' con-
duct; copies of photographs, movies, and video-
tapes in which the employees have performed sexu-
al acts or simulated sexual acts; the names of previ-
ous employers and previous rates of pay; and a
statement of income received from defendants.
These interrogatories survived the employees' S
jections. I agree certiorari should be denied.
The employees' primary cause of action is based on
section 796.090). Florida Statutes, which provides:
(1) A person has a cause of action for compensatory
and punitive damages against
A person who coerces that person into prostitu-
tion;
1,1s) A person who coerces that person to remain in
prostitution, or
ep) A person who uses coercion to collect or receive
Page 5
any part of that person's earnings derived from
The employees resist discovery of their past prosti-
tution or their past or present earning experience on
the basis of subparagraph 5 of section 796.091
5) It does not constitute a defense IO a complaint
under this section that
a) The plaintiff was paid or otherwise compensated
for acts of prostitution;
b) The plaintiff engaged in acts of prostitution pri-
or to any involvement with the defendant
But the question before us is not whther prior acts
of prostitution (or the receipts of earnings there-
from) which might be revealed by answering the in-
terrogatories could be used as a defense to the com-
plaint, but rather whether evidence of such conduct
or such earnings would be relevant in determining
whether the employees were, in fact, "coerced" Into
prostitution, into remaining prostitutes, or into shar-
ing the proceeds of their services with defendants.
The relevancy of this infommtiod depends, of
course, on what constitutes coercion.
If we apply the definition of "coercion" which is
commonly accepted, then the relevancy of the re-
quested information is apparent and this appeal has
no merit at all. Webster defines "coercion" as: (1)
to restrain or dominate by force, (2). to compel an
act or choice, or (3) to enforce or bring about by
force or threat. in sexual battery cases, the legis-
lature has adopted the common meaning of the
word "coercion" and has even placed limits on it. It
has provided that consent will not be recognized if
submission is coerced by threats of : force or viol-
ence 1f the victim reasonably believes the perpetrat-
or has the present ability to execute the threat.'"
Consent also will not be recognized if submission is
coerced by a threat of retaliation against. the victim
or another ff the victim reasonably believes that the
perpetrator has the ability to execute the threat in
the futures', And in sexual battery cases, the le-
gislature hos vitiated what might otherwise be con-
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703 So.2d 1076
703 Sold 1076, 22 Flo. I. Weekly O2375, 23 Fla. L. Weekly 13169
(Cite es:70330as 1076)
sidered as consensual if one exploits a known phys-
kel in mental acalento of thw victim to ashiew his
or her goal or takes advantage of one who is phys-
ically helpless or involuntarily Intoxicated/ma
Therefore, oven in sexual battery cases, before co-
ercion or exploitation will vitiate consent, the free
will of the victim must be overcome by force or
threat or some unfortunate circumstance suffered
by the victim.
FNI. Section 794.011(4)(b), Florida Stat-
utes.
Mt Section 794.011(4)(c), Florida Stat-
utes.
Ple. Section 794.011(4)(a),(d),(e), and (I),
Florida Statutes.
But then we get to the definition of "coercion" con-
tained in section 796.09(3):
;3) As used in this section, the term "coercion"
means any practice of dominion, restraint, or in-
ducement for the purpose of or with the mason•
ably foreseeable effect of causing another person
to engage in or remain in prostitution or to relin-
quish earnings derived from prostitution, end in-
cludes, but is not limited to:
la) Physical force or threats of physical force.
lb) Physical or mental torture.
:c) Kidnapping.
nom. (d) Blackmail.
1,e) Extortion or claims of indebtedness.
11) Threats of legal complaint or report of delin-
quency.
lg) Threat to interfere with parental rights or re-
sponsibilities. whether by Judicial or administrat-
ive action or otherwise.
30 Promise of legal benefit.
:1) Promise of greater financial rewards!
Page 6
3) Promise of marriage.
:k) Restraint of Speech or communication with
others.
) Exploitation of a condition of 'developmental
disability, cognitive limitation, affective disorder,
or substance dependency.
;m) Exploitation of victimization by sexual abuse.
:n) Exploitation of pornographic performance.
'A Exploitation of human needs for food, shelter,
safety, or affection.
The definition urged by the employees heroin is the
"promise of a greater financial reward." Whether
the requested information Is relevant to the issue of
coercion In this case will depend on what the legis-
lature intended by subsection (I) In the meaning of
"coercion."
I agree with Judge Ahenbemd's thoughtful analysis
in Slate v. Brigham, 694 So.2d 793 (1997):
there can be no dispute that the legislature's tmusu-
al definition of "percent" is not th common dic-
tionary definition. This Is perhaps ni appropriate
case in which to remind ourselves of Learned
Hand's famous observation that a "mature and de-
veloped Jurisprudence" does not "make a fortress
out of the dictionary."
But even so. one would expect some nexus between
the commonly accepted meaning of i word and the
definition of that word ascribed by the legislature.
If, for example, the legislature defined "canine" as
including cats, although one might, Jurispruden-
tially speaking, expect to bear a meow emanate
from a Great Dane, the courts should nevertheless
closely examine the legislative history to see if that
is really what the legislature intended. The court in
Young v. O'Keefe, 246 Iowa 1182, 69 N.W.2d 534,
537 (1955), stated this principle as. follows: "But
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703 Sold 1076
703 So.2d 1076,22 Ka. L. Weekly D2375, 23 Pia. L. Weekly 1)169
(ffite as: 703 So.2d 1076)
before a definition is construed so as to expand the
weaning of u weal-Anywis Ivy's.' K. ;,..A.J, its ant
onym ..., the intention of the to that ef-
fect must be clear." As Judge observed in
Carron v. Roger Bohn, D.C. A.A., 580 So.2d 814.
818 (Pia. 2d DCA 1991):
ft is our primary duty to give effect to legislative
intent and, if a literal interpretation of a statute
leads to unreasonable results, then we should ex-
ercise our power to interpret mason and logic to It.
Unforumately, it is apparent that in enacting this le-
gislation, the legislature has, without redefining
the terms for the purposes of this legislation, of-
ten used terms with commonly accepted mean-
ings for purposes at great variance from those
commonly accepted meanings.
In our a the legislature did define the term for
the purpose of the act. But because the term
(coercion) as so defined can be interpreted two
ways-ono consistent with the commonly accepted
meaning and one at variance-we should not accept
the "antonym" unless such legislative intent is
clear. A free will decision, even if based on a hope
of financial gale, is the opposite of a coerced de-
cision.
The employees urge that the mere promise of a
greater reward brings them within the act But if the
mere promise of a greater reward is sufficient to es-
tablish coercion, then anyone who makes a volun-
tary and reasoned exercise of free will motivated by
the hope of economic gain has been coerced. This
definition removes the element of compulsion im-
plicit in the commonly accepted meaning of coer-
cion and substitutes therefor the mere desire for fin-
ancial gain. The employees herein assert that since
they were offered "a greater financial reward" for
providing the services performed by them through
defendants' establishment, they were coerced into
their prostitution activities. This equates the giving
Page 7
of an opportunity to make a decision with the coer-
atm. gc thnt Ape-id/In men onbtertian m ran alto
mean •1082 that the promise of 's greater reward is
coercion only (f such promised reward is sufficient
to overcome ono's natural revulsion to selling one's
body for money. If there is no such revulsion, there
can be no coercion. Becoming a prostitute only be-
cause one likes the hours and wages or "because it
beats the heck out of working fora living" simply
should not meet the test of section 796.09(1).
At oral argument herein, it was suggested without
contradiction, that at least one of the employees has
a college degree and gave up a well-paying, legit-
imate job in order to engage in this profession for
the greater reward. Section 796.09 does not appear
to be a general prostitute's relief act. It is based on a
report by the Gender Bias Study Commission which
recommended the equalization of treatment in rela-
tion to the prostitute, the client and the "pimp." It Is
based on the premise that prostitutes are generally
victims of economic, physical, and psychological
coercion end choose prostitution in order to sur-
vive. Further, the Commission was concerned that
90 percent of the street prostitutes are controlled by
"pimps" who use a variety of coercive methods to
maintain control. It seems dear that the legislature
was not intending to depart from the Precepts of the
commonly understood meaning of "coercion" and
to redefine it to include both free will decisions and
compelled decisions.. The interpretation urged by
the employees seems at variance with the slated
goal of the legislature and the Gender Bias Com-
mission.
Since there is no cause of action provided for one
who makes a reasoned and voluntary exercise of
their free will to enter or continue in the profession
solely for financial rewards (assuming "coercion" Is
given the definition more consistent l with its com-
monly accepted meaning and assuming that my In-
[imputation of legislative intent is mime°, coercion
becomes the critical issue in the trial of such action.
The Interrogatories propounded by defendants ap-
pear relevant to the issue of coercion.
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703 So.2d 1076
703 So.2d 1076.22 Ha. L Weekly D2375, 23 Fla. L. Weekly D169
(Cite as: 703 So.2d 1076)
This is a case of first impression based on a relat-
e
tory of the new law suggests that the statute is de-
signed to assist those who were forced to enter
prostitution In order to keep a roof over their heads
or food on their table. It does not appear to be in-
tended to aid those who voluntarily enter the Am-
on in order to drive a Mercedes instead of a
The limited record before us indicates that
even beginning employees of the defendants (those
who do not have an established clientele) bring in
$700 a day and can keep 50% of their earnings.
Based on a five-day work week, this would reflect
an income of $87,500 a year oven with a two week
vacation. And the employees herein are not begin-
ners.
There is no indication that the legislature intended
to legalize prostitution or to make it a respectable
profession. It merely intended to place the prosti-
tute on the same footing with the client and the
"pimp." If a prostitute voluntarily makes the de-
cision to participate, free from force, intimidation,
or disadvantageous circumstance, then he or she is
on the same footing as the other participants and
should be treated the same.
Although it might well serve a legitimate public
purpose to permit the cannibalistic demise of such
enterprises (and I am not unsympathetic with this
view), that does not appear to be the policy behind
the current statute. Therefore, in cases where coer-
cion is not present (and this may or may not be
one), the court should continue its tradition of not
Interceding In civil conflicts involving transactions
that are either illegal or are against public policy.
See WerliNovak, 157 Fla. 703, 26 Sold 884
(1946); v. Rattner, 462 So.2d 1157, 1160
(Fla. 3d 1984), rev. den:44 472 So.2d 1182
(Fia.1985) ("An action may lie for interference with
an unenforceable contract and even perhaps a void-
able contract. No such cause of action lies for inter-
ference with a contract void as against public policy
[anthers representation of a client obtained by a
doetcallawyees illegal personal injury solicitation
Page 8
in the hospital) and which makes one who is a party
a criminal set for entering Into such an agree. mend.")
We are not asked in this proceeding lo rule on the
admissibility of the discovered information as evid-
ence at the trial of this cause. We are to determine
only if the information might lead .to admissible
evidence. Even 'IOW though we deny the Writ I
suggest we certify the following question:
DOES ONE, FREE FROM FORCE, DITO4/DA-
TION, OR DISADVANI'AOEOUS CIRCUM-
STANCE, WHO MAKES A REASONED DE-
CISION TO BECOME OR REMAIN A PROSTI-
TUTE OR TO SHARE TEE PROCEEDS
THEREOF BECAUSE OF A PROMISE OP A
GREATER FINANCIAL, REWARD HAVE A
CAUSE OP ACTION UNDER SECTION
796.09(1), FLORIDA STATUTES?
ON MOTIONS FOR REHEARINO, FOR CLARI-
FICATION, FOR CERTIFICATION, AND FOR RE-
HEARING EN BANC
W. SHARP, Judge.
Petitioners Bales and Shumate have: filed motions
for Sleeting, clarification and cratificadco. We
deny the motions In MI except for one regard. We
delete the sentence in the last full paragraph of the
opinion which reads: "These other causes of action
carry no such protection from discovery."
Motion for Clarification GRANTED as stated
above; Motion for Rehearing and Certification
DENIED.
HARRIS and THObtIPSON. A., concur.
Fla.App..5 Dist.,1997.
Silas v. Russo
703 So.2d 1076, 22 Fla. I. Weekly D2375. 23 Fla.
L. Weekly D169
END OP DOCUMENT
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IN THE COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT, IN AND FOR PALM
DCACI I COUNTY, FLORIDA
A.C., CASE NO. 502008CA026129*00(MB Al
Plaintiff,
V.
E. EPSTEIN, and
Defendants.
ORDER ON DEFENDANT EPSTEIN'S MOTION To COMPEL RESPONSES TO
FIRST REQUEST TO_FRODUCE TO PLAINTIFF AND TO OVERRULE
PLAINTIFF'S OBJECTIONS. & FOR DEFENDANT'S EXPENSES,
INCLUDING ATTORNEYS' FEES
THIS CAUSE came before the Court on Defendant Epsteln's Motjon To
Compel Responses To First Request To Produce To Plaintiff And To Overrule
Plaintiffs Objections, & For Defendants Expenses, Including Attomeys' Fees
and the Court having heard argument of counsel and being fully advised in these
premises, it is hereby
ORDERED and ADJUDGED that Defendants Motion Is hereby granted/
dented .41 7 4 41 IR j obt._#_• clowai-me
22. w filretod "Pacr er,40.4. atb
tzli. Q1320 Ara.u.sck_ JD sap ,
DONE AND ORDERED at Palnj Beach Co urthouse, West Palm
Beach, Florida, this 7 3 day of
Edward A. Garrison
Circuit Judge
Copies furnished: * ROBERT II =rum a ESQ.,, . ESQ., and MICHAEL J. PIKE, ES 616 North FlapIer DIM., suss 400, Weal Palm Bora
FL 33401; JACK SCAROLA, ESQ., AND JACK P. ESQ., Seamy Denney Scarole Barnhart &
:tea sPA, 2139 Palm Beach Lakes Blvd., eat Palm Beach, FL 33409, and JACK A.
GEFt, ESQ., Atterbury Goldberger & Weiss, PA, One Cleedulte Centre, Suite 1400, 250
'05
Australian Avenue South, West Palm Beach, FL 33401 : %In 0 lc( EXHIBIT t; _1/26% 09- At.,.
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IN THE THE COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT, IN, AND FOR PALM .-
A.C.,
PlaInikft
v.
CASE NO. 502008CA025129)000MB Al
E. EPSTEIN, and
Defendants.
ORDER ON DEFENDANT EPSTEIN'S MOTION Tp COMPEL ANSWERS TO
INTERROGATORIES AND TO OVERRULE PLAIN11FF'S OBJECTIONS. & FOR
DEFENDANT'S EXPENSES, INCLUDING ATTORNEYS' FEES
THIS CAUSE came before the Court on Defendant Epsteln's Motion To
Compel Answers To Interrogatories And To Overrule Plaintiff's Objections, & For
Defendant's Expenses, Including Attorneys' Fees, and the Court having heard
argument of counsel and being fully advised In these premises, It Is hereby
ORDERED and ADJUDGED that Defendant's Motion Is hereby granted/
Etat IAD 415 / 12 II ;...e et,a-1
dC. 4 . 2 . fscignag 16.O bre Mich ainof
/0 do,.
DONE AND ORDERED at Palm Beach Cou
Beach, Florida, this 23 day of
Courthouse, West Palm
ward A. Garr son
Circuit Judge
Copies furnished:
ROBERT D. CRITTON, JR.. ESQ, and MN:WEL J. PEE, 16 North Flacks Drive, Sults 400, West Palm Best&Fli
FL 33401; JACK SCAROLA ESQ., AND JACK P. ESQ., seamy Denney Saucier Barnhart &
Shipley, PA, 2139 Palm Beach Lakes Blvd., eat Palm Beach, FL 33409, and JACK A.
GOLDBERGER, ESQ., Atterbury Goldberger It Weiss, PA, Ono Manske Centre, Suite 1400. 280
Australian Avenue South, West Palm Beach, FL 33401
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1
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1
IN THE FIFTEENTH JUDICIAL CIRCUIT COURT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50 2008CA020614XXXXMB AF'
JANE DOE II,
Plaintiff,
cgpy vs. JEFFREY EPSTEIN and
Defendants.
COURT REPORTER'S TRANSCRIPT OF
PROCEEDINGS HAD BEFORE
THE HONORABLE DIANA
DATE: March 3, 2009
PLACE: Palm Beach County Courthouse
205 N. Dixie Highway
West Palm Beach, Florida 33401
U.S. Lagar Support
([Phone Redacted] EXHIBIT
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APPEARANCES:
IIIIII LAW FIRM, P.A.
224 Datura Avenue
Suite 900
West Palm Beach, Florida 33401
Counsel for Plaintiff
BY: /SIDRO M. MEI, ESQUIRE
•
BURMAN, CRITTON, LUTTIER & COLEMAN
515 N. Flagler Drive
Suite 400
West Palm Beach, Florida 33401
Counsel for Defendant
BY: ROBERT D. CRITTON, JR., ESQUIRE
U.S. Legal Support
([Phone Redacted]
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that but I'd just like to do that.
THE COURT: Right. And if you want to
•
CI
',VI , 40 Ca low 4G Y..G.. .•••...“11. • ..... GP 6.7441 am. IL , I
I'm the one that's questioning whether or hot
these need to be before one judge. You may have
a different perspective than your colleagues who
are prosecuting some of the cases.
I understand the damages. I'm not
saying consolidate. I'm saying transfer. It's
not a consolidation issue. Everybody getd that
confused for some reason. The words are very
different out of my mouth, your mouth and how
they're written.
So let me go ahead and take a gander at
this. I did read it last night. I'm not sure
that we need to get -- we need names?
MR. CRITTON: Right. Well, here's what some
of the issues are is that, as an example -- if I
could approach the bench.
THE COURT: Sure.
MR. CRITTON: This is some of the
information that we've obtained through discovery
from some of the -- from at least in this
instance, it would be this particular Jane Doe.
THE COURT: You know who Jane Doe is I take
U.S. Legal Support
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it?
MR. CRITTON: Right.
MM AMC/ 1/4oVU.n..L. IVY IuMVW I.LAW VQIIO &WC SO -L
MR. CRITTON: Yes, correct. And so this
particular lady has kept in part a diary.and
she -- which appears to have started some time
this is not in any way significant -- but some
time after she learned that she could file a
lawsuit. I think she's also been to Oakwood
Center some time after she learned she could file
a lawsuit and seek damages from Mr. Epstein.
There's no history of this lady .
beforehand other than. in some of the Oakwood
records where she. was Baker Acted, she started
drinking beerat.16, she started XanaX at 16,
started marijuana at 15, that she's sexually
active:
So how she has interacted -- she has a
claim for emotional damages, mental pain and
anguish, psychiatric-type damages. How she's
interacted with friends, with family, the events
'in her life, school, work, her interpersonal
relationships both with men and let's -- we'll
use an'example men here, but other individuals.
She's saying that this event with Mr. Epstein,
U. S . Legal Support'
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this sexual assault and whatever occurred during
these events is that -- has caused her damage.
as the emotional, mental, psychiatric -type
damages are completely subjective, I mean
separate and apart from any medical bills that
may be -- which are clearly intangible. So these
are intangible damages. And the jury is
instructed, you know, you advise the greater
weight of the evidence, what's fair and
reasonable under the circumstances.
So what we would have is basically this
young lady's testimony as to what she claims her
damages are and what the circumstances are with
her situation with Mr. Epstein. She claims on
page 13, you know, I love this guy, I'm dating
this guy Chris. On page 15 --
THE COURT: Is this part of a diary for
treatment?
MR. CRITTON: I have no idea what it is. It
was just produced in response to discovery. And
she apparently started in, I think this is
December of '08. You know I took Jay Lyntenis'
girl to the zoo, had an amazing day, I love her,
i.e., the girl. We have so much fun. I want a
U.S. Legal Support
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baby especially with him. Okay. So I know who
this person is. We are all so open together, I
atau. uay 011Y LIVUll "Mal. UV 1 tAV W#1.41
Chris, who is another guy in her life.
All right. This is circumstances where
this young lady is saying, look, Jeffrey Epstein
has ruined my life from a damage standpoint,
okay. Let me depose other individuals with whom
you've had a relationship. And what if it turns
out -- as with some of these girls did -- is they
had relationships or had escapades or
circumstances with individuals, older men.similar
to Mr. Epstein well before Mr. Epstein.
And this girl, I don't know one way or
the other, but let's assume she had a situation
where she was assaulted or molested or raped, '
that all is going to affect her emotionaland her
mental pain and anguish and it will all factor
into evaluating damages.
You know, it's not something that I'm
going to spread around. I'm happy to keep it,
you know, within the confines of the discovery of
this case. But if she says every other •
relationship in my life has been perfect but Jeff
Epstein has done this to me and it has affected
U.S. Legal Support
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my ability to trust men and my sexual
relationships with other men, which is petit of
lk her interpersonal relationships, ukdy, lct,5 to
to III
THE COURT: When does your client allege
that she had her first encounter with
Mr. Epstein?
MR% : At what age?
THE COURT: Well, what year?
MR. CRITTON: June of '03.
MR. : June of '03, Judge.
•MR. CRITTON: She claims from June of '03
through November of '04.
MR. She was I believe 16 at the
beginning and ended at 17. She was a minor
during all this time.
THE COURT: June of '03 to now is six years.
Let me hear from Mr.
MR. : Judge, in the criminal case
that was filed against Mr. Epstein, he would not
.have had a right to do this type of discoVery and
I -- if I could hand up --
THE COURT: They wouldn't care about the
women.
MR. : Right. Well, I mean -
U.S. Legal Support
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THE COURT: This is damages. There's no
they weren't seeking damages at the time. !
M±c. UHRL.Sa: signt. arm we nave not allege°
in the complaint or in the answers to
interrogatories that her ability to have a
relationship with a man has been affected by
Mr. Epstein's conduct.
We have alleged that she has been
hospitalized for depression, anxiety but we have
not alleged any damages concerning -- the ionly
reason this would be relevant is if we were
making a claim at her ability to have either
sexual relations or to have emotional relations
with men was effected by her experience with
Mr. Epstein.
So this damages' claim is just a smoke
screen to attempt to get evidence to show the
jury that this woman has had other consensual
relationships with young men that are
approximately her age what I would characterize
as a slut defense. She had it coming to her
because she engaged in other voluntarily
consensual --
THE COURT: Mr. Critton wouldn't try the
slut defense in my courtroom, I'm sure.
U.S. Legal Support
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MR. Maybe not, but certainlg that's
the way this discovery is going. And, Judge,
what
THE COURT: What are the damages you think
your client is seeking?
MR. She is seeking emotional
distress damages for depression and anxiety and
she has been hospitalized at the Oakwood Center.
Her friend -- she was on the phone to a friend , .
who called the sheriff's office because she
thought she was suicidal. The sheriffs
responded. They Baker Acted her that day and
they took her eventually to the Oakwood Center.
THE COURT: How do we know it's not
intertwined with her rejection by three other men
since Mr. Epstein?
MR. IIIIII: Well, even if it was related to
her rejection by three other men -- you mean
other men's rejection of her?
THE COURT: Yeah. Well, how do you not know
that? I mean you can't do it until you do
discovery. Has anybody attempted to review the
records from Oakwood to find out what's going on?
MR. CRITTON: It's like a one-time visit
when she was Baker Acted and then there's some
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other --
THE COURT: She didn't receive treatment?
mm nnymmnm.
that day and she's been back a couple of times.
She's on medication. Again, I don't know;what or
the extent but she's got -- her medical bills are
de minimis.
Again as an example, Judge, did the
Court have an opportunity to look at the case
that I also attached to the motion? Because
there's a case that's almost on all fours with .
this which I attached to our motion which is
called Belles versus Russo.
THE COURT: Right.
MR. CRITTON: It was a case where the
plaintiff was sued -- the plaintiff sued the
former owners of a house of prostitution. So
that part is different, but within it there were
a number of claims including a sexual assault
claim and they sought emotional pain, humiliation
and emotional distress.
Within the complaint that was filed in
this particular case, she is seeking severe
emotional distress, mental anguish, humiliation,
embarrassment, past and future, compensatory
V.S. Legal Support
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humiliation, loss of reputation, mental anguish,
pain and suffering, the same type of damages.
THE COURT: How old is she now?
MR' CEll. She's 21 no*.
MR. CRITTON: She's 21 now. What the Court
said is, you know, if you'd only brought this
claim under 796 evidence of past issues, it's not
an issue. You can't use this defense for
anything, but because you brought these other
claims which include, you know, sexual assault
and you're seeking damages for other causes of
action since the information sought by discovery
may be relevant or may lead to the discovery of
admissible evidence in one or more of the other
causes of action or determination of damages, we
cannot conclude the trial court parted from
essential requirements of law in granting --
THE COURT: So in other words, she's not
only seeking -- she's seeking current emotional
damage as a result of this relationship and
you're trying to find out if she had prior
relationships, that perhaps could be intertwined
with it so that it's not just Mr. Epstein's --
MR. CRITTON: Right. A perfect example is
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one of the cases that I have is there's a.young
lady who claims that she was molested in the past
auu Lapeu f pLeu‘y asyuiLLuani. issues, WC12. SU
advance of her even meeting with Mr. Epstein.
And they seem to play a large role in her
psychiatric and psychological evaluation.
We're going to come to the Court in
this case as we have others and ask for a.
psychological evaluation of this lady, and if she
was raped or if she was molested or just she had
a bad experience or some -- whether it wail a
young or old man assaulted her in some fashion,
that may play a role in her damages and what --
THE COURT: What I'm going to allow for
discovery purposes only not necessarily getting
it in at the time trial are two years before her
first encounter with Mr. Epstein and anything
subsequent.
MR. IIIIII: Judge, I just wanted to say on
the record because I forgot to mention it,
there's also -- I did state an objection to the
identity of people that are unrepresented` in this
courtroom. They have rights too. So what I --
THE COURT: Well, my suggestion is that you
send those people a letter and tell them that
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you're going to disclose them and if they have a
problem with it that they come to see me before
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you oisciose
So I'm going to give you 20 days to
respond to this rather than the usual five and
that will give you time to put these people on
notice and if they want to come visit with me and
have a John Doe, I'll have a John Doe heai.ing
but, you know, this is her case. She's doing it.
She's the one seeking damages, and he is entitled
to be able to confront other individuals to find
out information that may be relevant to the
damages she's seeking or she can drop the.
damages. That's her choice. If you seek ,
damages, you've got to do it -- if you could put
that in an order so that we have a time for him
to do this.
Just fill out an order, hand it back up
to me and I'll deal with it.
(The proceedings were concluded:)
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COUNTY OF PALM BEACH.
I, Teresa Bell, Court Reporter, certify that
I was authorized to and did stenographically report
the foregoing proceedings and that the transcript is a
true and complete record of my stenographic notes.
I further certify that the proceedings were
taken at the time and place shown herein and that all
counsel and persons as hereinabove shown were present.
I further certify that I am not a relative,
employee, attorney or counsel of any of the parties,
nor am I a relative or employee of any of the parties!
attorney or counsel connected with the action, nor am
I financially interested in the action.
Dated this 11th day
TERESIK BELL,
Court Reporter
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Kikka M. Claudio
From: cmecfautosendenpsd.uscourts.gov
Sent: Apt 02, 2009 1:54 PM
To: flsd_cmecf_noticeeftsd.uscourts.gov
Subject Activity In Case 9:08-cv-80811-KAM C.M.A. v. Epstein et al Motion to Compel
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to
this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States: policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free'electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not
apply.
U.S. District Court
Southern District of Florida
Notice of Electronic Filing
The following transaction was entered by Critton, Robert on 4/2/2009 at 1:53 PM EDT and filed on 4/2/2009
Case Name: C.M.A. v. Epstein et al
Case Number: 9:08-cv-80811
Filer: Jeffrey Epstein
Document Number: 54
Docket Text:
Defendant's MOTION to Compel Response to 1st RTP and 1st Interrogs by Jeffrey Epstein.
Responses due by 4/20/2009 (Attachments: #(1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4)
Exhibit D)(Critton, Robert)
9:08-cv-80811 Notice has been electronically mailed to:
Bruce Reinhart ecf®brucereinhartlaw.com
Guy Alan
Jack Alan Goldberger iageso(gbellsouth.net, nalanis®agwpa.com
Jack [Email Redacted],[Email Redacted] [Email Redacted], [Email Redacted]
pasgsearcylaw.corn, vats searcvlaw.com
Michael James Pike MPEce(gbelelaw.com
Michael-Tein [Email Redacted], [Email Redacted] mcaroteigiewistein.com
Richard Horace Willits [Email Redacted] [Email Redacted]
1
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Robert Deweese Critton , Jr [Email Redacted] [Email Redacted]
9:08-cv-80811 Notice has not been delivered electronically to those listed below and will be provided by
other means. For further assistance, please contact our Help Desk at [Phone Redacted].:
The following document(s) are associated with this transaction:
Document description:Main Document
Original filename:n/a
Electronic document Stamp:
[STAMP deecfStampiD=[Phone Redacted] [Date=4/2/2009] [FileNumber=6195964-0)
[49fOc2d75486f6d6a6101a08c395b2c7992778ee9920e8793e30a05701c38a82a7cd
000704948284cbee2a315cedf37038a790bd53308696a153cec35dd4a2eb]i
Document description:Exhibit A
Original filename:nla
Electronic document Stamp:
[STAMP dcecfStampiD=[Phone Redacted] [Date-4/2/2009] [FileNumber..6195964-1]
[5442dd228617016a18a93a482a085529427a840328a0e54754cdf751967853bb92be
ecb01757337952c95593597ccfc9a41571176b352bb55db83a21a343d276]]
Document description:Exhibit B
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStampiD-[Phone Redacted] [Date=4/2/2009] [FileNumbet=6195964-2]
[25cedd880cca3d8978be178b71f1defe7a045549a477d2d9547032020ef01488969e
bad8c2e920f70317610d9120ceca0890948393f1 d74268del8e9ff88192d]]
Document description:Exhibit C
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStampiD=[Phone Redacted] [Datc=4/2/2009] [FileNumbet=6195964-3]
[37892711faff5e10f7c7b9b1c0cad10ac25f111cfa940376210a3a511f5b8fc66e25
7a72e8a82aclf8d04c63aa2721bce8e1445577efdde123db7e50acecc99a))
Document description:Exhibit D
Original filename:n/a
Electronic document Stamp:
[STAMP dceefStamp_TD=[Phone Redacted] [Datca4/2/2009] [FileNumber=6195964-4]
[30891fd9cd081f85da5c8b8446571f54389e681aa2a51b1899667fcfbca8f86fccf8
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2
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