Court Records
Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009 Page 1 of 15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
JANE DOE NO. 2,
Plaintiff,
vs.
JEFFREY EPSTEIN
Defendant.
CASE NO.: 08-cv-80119-MARRA/JOHNSON
JANE DOE NO. 3,
Plaintiff,
vs.
JEFFREY EPSTEIN
Defendant.
CASE NO.: 08-CV-80232-MARRA/JOHNSON
CASE NO.: 08-CV-80380-MARRA/
JANE DOE NO. 4,
Plaintiff,
vs.
JEFFREY EPSTEIN
Defendant.
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CASE NO.: 08-CV-80381-MARRA/
JANE DOE NO. 5,
Plaintiff,
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 08-80994-CIV-MARRA/1
JANE DOE NO. 6,
Plaintiff,
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 08-80993-CIV-MARRA/
JANE DOE NO. 7,
Plaintiff,
JEFFREY EPSTEIN
Defendant.
C.M.A.,
Plaintiff,
JEFFREY EPSTEIN
Defendant.
CASE NO.: 08-80811-CIV-MARRA/JOHNSON
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JANE DOE,
Plaintiff,
JEFFREY EPSTEIN et al,
Defendants.
CASE NO.: 08-80893-CIV-MARRA
DOE H,
Plaintiff,
JEFFREY EPSTEIN et al,
Defendants.
CASE NO.: 09-80469-CIV-MARRA
JANE DOE NO. 101, CASE NO.: 09-80591.-CIV-MARRA-
Plaintiff,
JEFFREY EPSTEIN
Defendant.
JANE DOE NO. 102, CASE NO.: 09-80656-CIV-MARla
Plaintiff,
JEFFREY EPSTEIN,
Defendant.
Response To Plaintiffs', Jane Does 2-7, Motion for Protective Order (DE 223), With
Incorporated Memorandum Of Law
Defendant, JEFFREY EPSTEIN ("Epstein" or "Defendant"), by and through his
undersigned attorneys, hereby files his Response In Opposition to Plaintiffs', Jane Does
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2-7, Motion for Protective Order (DE 223), With Incorporated Memorandum Of Law (the
"Motion for Protective Order"). In support, Mr. Epstein states as follows:
I. Introduction & Argument
1. Plaintiffs' have joined in a collective effort to prevent discovery relating to
their medical, psychological, criminal and employment histories, as well as their general
backgrounds. Thus, Plaintiffs have unreasonably delayed discovery directed to them.
Now, Plaintiffs go even further and request that this court preclude Epstein from
investigating these matters through one of the most traditional methods available in the
justice system, private investigators. Importantly, Plaintiffs' allegations do not state that
Epstein's investigators have contacted them directly or indirectly — because they have
not. Instead, Plaintiffs allege that Epstein's private investigators have contacted third
parties, that is, Plaintiffs' "ex-boyfriends, former employers, and others who know
nothing of the underlying facts of the case." The law does not forbid such an
investigation.
2. Plaintiff, Jane Doe 7, filed a self-serving hearsay declaration (DE 251-2)
wherein she claims she spoke to only one of the individuals apparently interviewed by
Epstein's investigators; however, Plaintiff does not state that the investigators have
identified Jane Doe 7 as a Plaintiff in this lawsuit. Defendant expects that in light of this
court's recent order (DE 253) that Plaintiff will speciously amend her declaration.
Nonetheless, Plaintiff cannot expect this court to limit Defendant's investigation efforts
when Plaintiff, Jane Doe 7, has stated that investigators have NOT identified her as a
Plaintiff in this lawsuit. (Declaration, DE 251-2, 15). Moreover,
affidavit tells a different story; that is, Jane Doe 7 approached her at a local bar and
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discussed Jeffrey Epstein with her in a public forum, 1.e., Jane Doe 7 discussed her
lawsuit with in public, with others. See Exhibit "A". Even so, an
elementary review of the alleged questioning by the investigators as set forth in Jane Doe
7's declaration shows that same is relevant (e.g., what was her reputation, did she date
older rich guys, did she give massages for money etc...). Surely, Jane Doe 7 is not being
heard to argue that her providing massages to "older-rich guys" is not relevant to this
action.
3. Despite this court requiring that we proceed with discovery, Plaintiffs
continue to make allegations in which they believe this court will allow them to dictate:
(a) what is and what is not relevant to the defense of Epstein's case; (b) who has
knowledge of the underlying facts of the case for investigation purposes; and (c) what is
and what is not discoverable. Under this scenario, Epstein might as well terminate his
attorneys and allow the Plaintiffs' attorneys to represent him.
4. Epstein has been faced with several motions seeking to prevent or limit
discovery with the primary goal being to send Epstein to trial without little or no
discovery. Plaintiffs continue to avert discovery, and now they wish to shelter their pasts
by requesting that this court enter an order broadly limiting the rules of discovery and
thus preventing Epstein from investigating this matter and the claims Plaintiffs have
alleged against him. This would undoubtedly result in reversible error.
5. As set forth in Epstein's Reply to Jane Doe 2-7 Response in Opposition to
Epstein's Motion to Identify (the "Reply")(DE 247), Plaintiffs' have several preexisting
and diagnosed conditions for which they now attempt to pawn off on Epstein in an effort
to increase their damages. For instance, prior to any of their alleged encounters with
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Epstein, certain Plaintiffs have been raped, sexually abused, molested and physically and
verbally abused. Some of them have been diagnosed with post traumatic stress disorder
or obsessive compulsive disorder, and some have suicidal thoughts and/or have attempted
suicide on more than one occasion. Moreover, some of the Plaintiffs have witnessed
close friends or family members commit suicide. While the above incidents are nothing
less than tragic, the impact of those incidents on each of the Plaintiffs must be taken into
consideration with the claims they make and the damages they seek against from Epstein.
Plaintiffs have objected to all meaningful discovery, and now they seek to halt all
traditional investigatory methods which may lead to evidence that may diminish or
disprove their claims and/or evidence that may prove that Plaintffs have made
inconsistent statements relative to their allegations.
6. As this court is well aware, utilizing investigators prior to and during a
lawsuit is a common well-accepted method by which parties seek to obtain information
not easily or otherwise obtainable about the claims asserted by them or against them in a
lawsuit. Investigators are employed not only by individuals involved in lawsuits but also
by insurance companies, small businesses, the State Attorneys' Office, the Public
Defenders' Office, and the Federal Government. If this court's precludes Epstein's
private investigators from seeking information from third parties about the claims
asserted against him by Jane Does 2-7, it will undoubtedly violate Epstein's due process
rights by preventing him from defending the allegations made against him and it will
further open the floodgates to additional challenges from others who are the subject of an
investigation commenced by insurance companies, small businesses, the State Attorneys'
Office, the Public Defenders' Office and the Federal Government.
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7. Plaintiffs claim in their Motion for Protective Order that retaining
investigators in a case such as this one is not "customary." Such an assertion is not only
nonsensical, but Plaintiffs also fail to cite one case or rule supporting their overbroad and
self-serving theory. In fact, Plaintffs' theory would result in rewriting the rules of
discovery, and the intended purpose of the rules would largely be disregarded (i.e., to
obtain all information necessary to prosecute and/or defend claims such that the element
of unfair surprise is diminished).
8. Despite this court ordering that we move these cases forward, Plaintiffs'
strategy is to delay or prevent the very discovery this court said Defendant should
undertake! Once again, this court has already ruled that Plaintiffs can only be deposed
once (Case #80I19, DE 98 at 15 — "Defendant is limited to a single deposition of each
Plaintiff, during which defendant may depose the Plaintiff as both a party and a
witness."). Plaintiffs, however, refused for several months to allow third-party subpoenas
to be served to obtain among other things, medical, psychological, criminal and
employment histories. The court recently entered an order allowing for Defendant to
serve the third-party subpoenas. Even so, Plaintiffs now wish to halt any outside
investigation of the claims they have asserted against Epstein. It appears Plaintiffs wish
for this court to force Epstein to take their depositions without any relevant information
in hand, and with the ultimate goal of sending Epstein to trial without any legitimate
information and discovery that will reduce Plaintiffs' damages or contradict their claims.
9. Plaintiffs universally agreed at the June 12, 2009 hearing on Defendant's
Motion to Stay that regular discovery could proceed. See Composite Exhibit "B" at
pages 26-30 & 33-34. For instance, the court asked Plaintiffs' attorneys the following
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questions:
The Court: [J So again, I just want to make sure that if the cases go
forward and if Mr. Epstein defends the case as someone ordinarily would
defend a case being prosecuted against him or her, that that in and of itself
is not going to cause him to be subject to criminal prosecution? (Ex. "A,"
p.26).
***
The Court: You agree he should be able to take the ordinary steps that a
defendant in a civil action can take and not be concerned about having to
be prosecuted? (Ex. "A," p.27).
***
The Court: Okay. But again, you're in agreement with everyone else so
far that's spoken on behalf of a plaintiff that defending the case in the
normal course of conducting discovery and filing motions would not be a
breach? (Ex. "A," p.30).
Mr. Horowitz — counsel for Jane Does 2-7: Subject to your rulings, of
course, yes. (Ex. "A," p.30).
***
The Court: But you're not taking the position that other than possibly
doing something in litigation which is any other discovery, motion
practice, investigations that someone would ordinarily do in the course of
defending a civil case would constitute a violation of the agreement? (Ex.
"A," p.34).
Ms. Villafana: No, your honor. I mean, civil litigation is civil litigation,
and being able to take discovery is part of what civil litigation is all
about.... But. . ., Mr. Epstein is entitled to take the deposition of a Plaintiff
and to subpoena records, etc. (Ex. "A," p.34)
10. It is clear from the transcript attached as Exhibit "B" that each of the
Plaintiffs' attorneys, including Mr. Horowitz for Jane Does 2-7, expected and conceded
that regular/traditional discovery would take place (i.e., discovery, motion practice,
depositions, requests for records, and investigations).
11. Investigating any claims made against any Defendant is reasonable and
should not be limited. For instance, assume an investigator contacts a third-party who
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knew or dated one of the Jane Does before and/or after the Plaintiffs' alleged encounters
with Epstein. Is it Plaintiffs' contention that an investigator cannot ask the ex-boyfriend
or the friend: (a) whether Plaintiff ever mentioned Epstein; (b) whether Plaintiff gave
Epstein massages; (c) whether Plaintiff ever complained about her alleged experiences
with Epstein; and/or (d) whether Plaintiff ever seemed disturbed or traumatized about her
alleged experiences with Epstein. If this court grants Plaintffs' request, it will result in
Plaintiffs being afforded the opportunity to make sexual assault and battery allegations
without affording Epstein the opportunity to defend those specific allegations. This is not
the same as identifying each Jane Doe by name in a public proceeding accessible by all —
it is basic behind the scenes discovery which seeks to investigate and question others on
an individual basis. Plaintiffs' request, if granted, would violate Epstein's constitutional
and due process rights to defend himself, and would further not allow Epstein a full
opportunity to confront the Plaintffs that have made allegations against him with the
necessary material to properly cross-examine them at trial. As such, this would violate
Epstein's 6th Amendment Right to confront witnesses, and the due process clauses of the
Fifth and Fourteenth Amendments.
12. It is simply not fair to allow the Plaintiffs to file lawsuits containing
sexual-abuse allegations and then attempt to use the rules of discovery and those same
sexual-abuse allegations as a sword to cut-out the heart of Defendant's case (and the
defenses thereto) while simultaneously brandishing their allegations as a shield from
disclosure of any Achilles heel.
II. Memorandum of Law
a. The Allegations in the Amended Complaints As to Jane Does 2-7
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13. The amended complaints filed by Jane Does 2-7 against Jeffrey Epstein
make allegations of sexual assault and abuse upon a minor and seek damages in excess of
$50 million. Jane Does 2-7 allege confusion, shame, humiliation, embarrassment, and
severe psychological and emotional injuries. It is further alleged that they suffered, and
will continue to suffer, severe and permanent traumatic injuries, including mental,
psychological, and emotional damages. Plaintiffs allege intentional infliction of
emotional distress, severe emotional distress, severe mental anguish and pain. They
further allege that they suffered personal injury including mental, psychological and
emotional damage.
14. It is the Defendant's job to obtain information to disprove and/or find
information that diminishes Plaintiffs' damage claims. The rules of discovery
contemplate same.
b. The Rules of Discovery Contemplate the Hiring of Investigators
15. The rules of discovery contemplate the hiring of investigators, and also
protect the information obtained by an investigator as the work-product of the hiring
attorney because the materials are obtained or created in anticipation of litigation or for
trial. ate Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 15t
DCA 1981); Fed.R. Civ.Pro. 26(b)(3)(B); Fla.R.Civ.Pro. 1.280• In re Faro Technologies
Securities Litigation, 2008 WL 205318 (M.D. Fla. 2008); Lake Shore Radiator, Inc. v.
Radiator Express Warehouse, 2008 WL 842989 (M.D. Fla. 2007)(protecting investigative
materials as work-product); and Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 91
L.Ed. 451 (1947)(noting, among other things and subject to exception, that work-product
includes information which an attorney secures from a witness while acting for his client
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in anticipation of litigation or for trial). Florida even has its own investigative privilege
codified in Fla. Stat. §493.6119, which also seeks to promote the rules of discovery and
protect any investigators file. Accordingly, it is clear that the overall purpose of
discovery under the Federal Rules is to obtain a full and accurate understanding of the
true facts in order to obtain a fair and just result. United States v. Proctor & Gamble Co.,
356 U.S. 677, 682, 78 S.Ct. 983 (1958).
16. Defendant should not have to rely on only those "handpicked" witnesses
disclosed by Plaintiff at depositions, through interrogatories or by way of Rule 26
disclosures who Plaintiffs and their lawyers have identified to:
(a) test the Plaintiffs' credibility as to their alleged involvement with Epstein;
(b) determine the alleged effects on Plaintiffs as a result of any involvement
with Epstein;
(c) identify other females whom Plaintiffs took or might have met at Epstein's
home;
(d) support Plaintiffs' claims that she sustained damages as a result of their
alleged involvement with Epstein; and
(e) determine what Plaintiffs may have said to others regarding the alleged
incidents.
17. Many of the Plaintiffs are claiming that Epstein is the sole or substantial
contributing cause of their physical, psychological and emotional damages. However, as
this court is aware, Plaintiffs have experienced several incidents in their lives which
affected them emotionally and psychologically. See es., Exhibits "C" and "D",
Affidavits of Richard C.W. outlining the psychological issues experienced by Jane
Does 4 and 6 as a result of incidents in their lives prior to Epstein, which cannot be
discounted. For additional affidavits of the remaining Jane Does, see DE 247 and the
11.
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Affidavits attached thereto. As such, Plaintiffs should not be able to "handpick" who
Defendant utilizes to refute their allegations.
18. Accordingly, Plaintiffs cannot expect this court to limit Epstein's
investigation of the claims they assert against him. To hold otherwise will negatively
effect information sought by way of depositions, independent medical evaluations,
regular discovery and the like, thereby prejudicing Epstein and impacting the one day he
will have in court to defend these allegations.
III. Conclusion and Requested Relief
19. It is critical for this entire case that Epstein be able to conduct regular
discovery, which includes investigating the claims Plaintiffs make against him by using
an investigator. As Dr. stated in his affidavits attached to DE 247, "there are a
number of variables that combine to determine the effects of such alleged victimization,
including the type and character of the alleged assault, and key victim variables such as
demographics, psychological reactions at the time of the trauma, previous psychiatric or
psychological history, previous victimization history . . . , general personality dynamics
and coping style, as well as sociocultural factors such as drug use/abuse; poverty; social
inequity and/or inadequate social support; any previous history of abuse within or outside
the family; whether individuals were abused by strangers, acquaintances or family
members; and whether there was any history of indiscriminate behavior that may have
placed them at increased risk. . . ." Id. It is also important to know about Plaintffs' ".
previous sexual conduct, contact with police or welfare agencies, alcohol or drug
use/abuse, voluntary sexual activity, contraceptive use, genital infections, or apparent
indifference to previous abuse. . .whether any significant psychiatric illnesses were
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present, whether they were taking any medications (prescribed or non-prescribed),
whether there had been previous suicide attempts, thoughts, plans, etc. . . ., and whether .
. . Plaintiffs' relationships with their families and familial factors, including social
disadvantage, family instability, impaired parent/child relationship, and parental
adjustment difficulties [were present]" Id. It is therefore critical for Epstein to conduct a
thorough investigation, which will confirm or rebut Plaintiffs" allegations in their
respective complaints. To hold otherwise would cause this court to accept Plaintiffs'
allegations as true without allowing Epstein to retain information to refute same.
Wherefore, Epstein requests that this court deny Plaintffs' otion for Protective
Order, and for such other and further relief as this cou nd proper.
By:
MIC A J. P t E, ESQ.
Florida Bar 461
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 mead identif d n to following Service List in
the manner specified by CM/ECF on this rit day of , 2009
Respectfully s
By:
ROBE D. CRITTON, JR., ESQ.
Florida Bar No. 224162
[Email Redacted]
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
[Email Redacted]
BURMAN, CRITTON, LUTHER &
COLEMAN
515 N. Flagler Drive, Suite 400
West Palm Beach, FL 33401
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561/842-2820 Phone
561/515-3148 Fax
(Counsel for Defendant Jay Epstein)
Certificate of Service
Jane Doe No. 2 v. Jeffrey Epstein
Case No. 08-CV-80119-MARRA/.=.
Stuart S. Mermelstein, Esq.
Adam D. Horowitz, Esq.
Mermelstein & Horowitz, P.A.
18205 Biscayne Boulevard
Suite 2218
Miami, FL 33160
[Phone Redacted]
Fax: [Phone Redacted]
[Email Redacted]
ahorowitz@,sexabuseattornev.com
Counsel for Plaintiffs
In related Cases Nos. 08-80069, 08-80119,
08-80232, 08-80380, 08-80381, 08-80993,
08-80994
Richard Horace Willits, Esq.
Richard H. Willits, P.A.
2290 10th Avenue North
Suite 404
Lake Worth, FL 33461
[Phone Redacted]
Fax: [Phone Redacted]
Counsel for Plaintiff in Related Case No.
08-80811
reelrhw®hotmail.com
Jack Scarola, Esq.
Jack P. a Esq.
Searcy Denney Scarola Barnhart & Shipley,
P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
[Phone Redacted]
Fax: [Phone Redacted]
[Email Redacted]
Brad Esq.
Rothstein osenfeldt Adler
401 East Las Olas Boulevard
Suite 1650
Fort Lauderdale, FL 33301
Phone: [Phone Redacted]
Fax: [Phone Redacted]
[Email Redacted]
Counsel for Plaintiff in Related Case No.
08-80893
Paul G. Cassell, Esq.
Pro Hac Vice
332 South 1400 E, Room 101
Salt Lake City, UT 84112
[Phone Redacted]
[Phone Redacted] Fax
[Email Redacted]
Co-counsel for PlaintiVane Doe
Isidro M. Esq.
gRLaw Firm, P.A.
atum Street, Suite 900
West Palm Beach, FL 33401
[Phone Redacted]
[Phone Redacted] F
[Email Redacted]
Counsel for Plaintiff in Related Case No.
08-80469
Robert C. Josefsberg, Esq.
Katherine W. Ezell, Esq.
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
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[Email Redacted]
Counsel for Plaint& C.M.A.
Bruce Reinhart, Esq.
Bruce E. Reinhart, P.A.
250 S. Australian Avenue
Suite 1400
West Palm Beach, FL 33401
[Phone Redacted]
Fax: [Phone Redacted]
ecfabrucereinhartlawili m
Counsel for Defendan
Theodore J. Leopold, Esq.
Spencer T. Kuvin, Esq.
Leopold-Kuvin, P.A.
2925 PGA Blvd., Suite 200
Palm Beach Gardens, FL 33410
[Phone Redacted]
Fax: [Phone Redacted]
Counsel for Plaintiff in Related Case No.
08-08804
[Email Redacted]
[Email Redacted]
[Phone Redacted]
Fax: [Phone Redacted]
rjosefsberg®nodhurst.com
[Email Redacted]
Counsel for Plaintiffs in Related Cases
Nos. 09-80591 and 09-80656
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]
[Email Redacted]
Counsel for Defendant Jeffrey Epstein
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