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Case 9:09-cv-80591-KAM Document 16 Entered on FLSD Docket 05/11/2009 Page 1 of 12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-80591-MARRA/JOHNSON
JANE DOE No. 101,
Plaintiff,
V.
JEFFREY EPSTEIN,
Defendant,
------------~'
RESPONSE IN OPPOSITION TO MOTION TO PROCEED ANONYMOUSLY
AND
EPSTEIN'S MOTION TO COMPEL AND/OR IDENTIFY JANE DOE #101 IN
THE STYLE OF THIS CASE AND MOTION TO IDENTIFY JANE DOE #101 IN
THIRD-PARTY SUBPOENAS FOR PURPOSES OF DISCOVERY, WITH
INCORPORATED MEMORANDUM OF LAW
Defendant, JEFFREY EPSTEIN ("Epstein" or "Defendant"), by and
through his undersigned attorneys, hereby files his Response In Opposition to
Plaintiff, Jane Doe #101's Motion to Proceed Anonymously and files his Motion
requesting that this Court enter an order identifying in the style of this case the
complete legal name of the Plaintiff, JANE DOE #101 ("JANE DOE"), to
substitute her complete legal name in this case in place of "JANE DOE" and,
equally important, allowing Defendant to identify her in various subpoenas that
Epstein must serve so Epstein can defend this case. In support, Mr. Epstein
states as follows:
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I. Response In Opposition With Incorporated Motion And Incorporated
Memorandum Of Law
a. Background
1. On April 17, 2009, Plaintiff filed this action against Epstein. The
Complaint (DE 1) alleges three causes of action against him: Count I - Coercion
and Enticement of a Minor to Engage in Prostitution or Sexual Activity Pursuant
to 18 U.S.C. §§2255 and 2422(b); Count II - Cause of Action for Travel With
Intent to Engage in Illicit Sexual Conduct Pursuant to Pursuant to 18 U.S.C.
§§2255 and 2423(b); Count Ill - Cause of Action for Sexual Exploitation of
Children Pursuant to 18 U.S.C. §§2255 and 2251(b); Count IV - Cause of Action
for Visual Depiction of Minor Engaging in Sexually Explicit Conduct Pursuant to
18 U.S.C. §§2255 and 2251(a)(1); Count V - Cause of Action for Transport of
Child Pornography Pursuant to 18 U.S.C. §§2255 and 2252A(a)(1); and Count VI
- Cause of Action for Engaging in a Child Exploitation Enterprise Pursuant to 18
U.S.C. §§2255 and 2252A(g).
2. Plaintiff alleges, among other things, that she is entitled to money
damages pursuant to 2255 (in the wherefore clause), as well as actual and
compensatory.
3. Obviously, Plaintiff alleges separate counts against Mr. Epstein, on
which he must conduct discovery to defend this case. Therefore, for the reasons
set forth herein, not only must JANE DOE'S Motion to Proceed Anonymously be
denied, but Epstein's Motion to Identify Jane Doe must be granted. Despite
Plaintiff's allegations in the Motion to Proceed Anonymously, this Court has not
"allowed" any Plaintiff to proceed anonymously. Quite simply, that is the way
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each Plaintiff chose to file each of their respective cases, all of which are
currently being challenged in those other matters by Motion to Identify.
4. Importantly, JANE DOE claims that she has and will suffer " .
. physical injury, pain and suffering, emotional distress, psychological and
psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss
of educational opportunities, loss of self-esteem, loss of dignity, invasion of her
privacy ... , and medical and psychological expenses ... , loss on income, loss
of the capacity to earn income in the future, and loss of the capacity to enjoy life"
,i,i2a, Comp., DE 1; see also ,i,i32, 36, 41, 46 and 50, Comp., DE 1.
5. Epstein has a constitutional due process right to defend himself and
to seek the production of information that will assist in his defense of the
allegations in the Complaint. In this case, Plaintiff's counsel intends on serving
subpoenas on Plaintiff's treating physicians and other third parties. Thus, this
motion seeks not only a denial Plaintiff's Motion to Proceed Anonymously but to
identify JANE DOE in the style of this case and to identify JANE DOE in various
third-party subpoenas for discovery purposes.
6. The undersigned's experience in "Jane Doe" lawsuits is that once a
Plaintiff is identified, other individuals come forward in the discovery phase with
information which often directly contradicts allegations as to the events and
damages. For instance, witnesses may testify that Plaintiff was paid by others
for similar sexual acts she claims Mr. Epstein forced upon her or that she willingly
participated in certain act(s) that would negate or lessen her damages. This goes
directly to Plaintiff's damage claim.
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7. Likewise, subpoenas must be issued to third-party treaters and
current and former employers, and those subpoenas will seek to obtain records
related directly to Plaintiff's claims and her damages (i.e., her claim for severe
and permanent traumatic injuries, including mental, psychological and emotional
damages and loss of self-esteem as referenced above). Cherenfant v.
Nationwide Credit. Inc., 2004 WL 5315889 (S.D. Fla. 2004)(order allowing
discovery of medical records consistent with Plaintiff's allegations in complaint).
This too goes directly to Plaintiffs damage claims. Medical providers, employers,
co-employees, etc... have direct and relevant personal knowledge and
observations regarding damages, i.e., emotional state, activities, self-esteem,
etc ....
8. Fed.R.Civ.Pro. 26 allows for broad discovery. Epstein is not
required to rely solely on Plaintiff's discovery responses in defending this case,
nor is Epstein required by any statute or law to rely only upon what Plaintiff may
produce in discovery or may obtain from her own medical treaters through her
counsel, and to then provide to Epstein only after Plaintiff has reviewed same. In
certain related state court actions involving Epstein, the undersigned offered to
serve certain subpoenas on the medical treaters and other third-parties with full
name, date of birth and Plaintiff's social security number (last four digits), but
agreed that the subpoenas filed with the clerk would be redacted. Several
attorneys agreed to this procedure in those cases. In Federal Court, subpoenas
are not filed with the clerk. Thus, in this matter, the undersigned offered to serve
the third-party subpoenas with plaintiff's full name, date of birth and social
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security number (last four digits) and would agree to redact any identifying
information on any documents filed with this court if that ultimately became
necessary.
9. Moreover, when an order from the court is attached to the
Subpoena, treaters and other third parties produce the records and show up to
the depositions with the records requested because the deponent knows what to
bring by virtue of knowing the identity of the Plaintiff.
10. Epstein's counsel intends to serve and depose witnesses duces
tecum. If Epstein is not permitted to identify JANE DOE (thus allowing her to
proceed anonymously), how will any deponent know who the parties are and
what to bring to the deposition pursuant to the duces tecum? Further, how will
Epstein be able to defend the claims. Just like the Plaintiff, Epstein is entitled to
due process. If the Court allows Jane Doe to proceed anonymously, Jane Doe
will be permitted to present her case and Epstein will be limited in his defenses.
11. While it is within the sound discretion of this court to allow a party to
proceed anonymously, Plaintiff should not attempt to utilize that discretion as a
shield from legitimate and necessary discovery. Epstein has a fundamental due
process right to conduct discovery.
b. Response In Opposition And Motion To Identify JANE DOE In Style
Of This Case
12. As discussed below, Epstein has fundamental due process right to
defend himself in this civil litigation. While JANE DOE travels under a
pseudonym, various newspaper articles identifying Epstein have been released
discussing the alleged claims against him. Allowing JANE DOE to litigate this
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matter under a pseudonym is preventing Epstein from defending this suit
including, but not limited to, preventing him from locating individuals that may
have information about this lawsuit and information about JANE DOE that may
discredit her allegations and/or lessen the monetary damages she seeks to
recover. It is the undersigned's experience that once identified, witnesses begin
to come forward. See supra.
13. In Doe v. Lepley, 185 F.R.D. 605 (D. Ct. NV 1999), a sexual
harassment case, the court reasoned that there is no express or implied right to
bring an action anonymously. Id. at 606. Moreover, Fed. R. Civ. P 10(a)
requires that the complaint include the names of the parties. Id. When Plaintiffs
are permitted to proceed anonymously, the court must employ a balancing test to
decide if the plaintiff has a substantial privacy interest that outweighs the
presumption of openness in judicial proceedings. Id., citing, Doe v. Frank, 951
F.2d 320, 323 (11th Cir. 1992)(requiring complaint to include the names of the
parties serves more than administrative convenience, it protects the public's
legitimate interests in knowing all the facts involved, including the identity of the
parties - thus denying request to proceed anonymously). The factors include:
a. whether the plaintiff is challenging governmental activity;
b. whether the party defending the suit would be prejudiced;
c. whether the plaintiff is required to disclose information of
utmost intimacy;
d. whether the plaintiff is compelled to admit an intention to
engage in illegal conduct, thereby risking criminal
prosecution;
e. whether the Plaintiff would risk suffering injury if identified;
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f. whether the interests of children are at stake; and
g. whether there are less drastic means of protecting the
legitimate interests of either party.
Doe v. Frank, 951 F.2d at 323.
Plaintiff does not fall under any of the factors. Moreover, even if she did
meet one of the factors, "(t]he fact that [a] Doe [Plaintiff] may suffer some
personal embarrassment, standing alone, does not require the granting of a
request to proceed under a pseudonym." Id; see also Doe v. Rostker, 89 F.R.D.
159 (N.D. Calif. 1981). Any substantial privacy interests JANE DOE has must
outweigh the customary and constitutionally embedded presumption of openness
to judicial proceedings. Doe v. Frank, 951 F.2d at 323; Doe v. Bergstron, 2009
WL 528623 (C.A.9(Or.))(denying request to proceed anonymously in civil action
by Plaintiff where Plaintiff's arrest, prosecution and acquittal were matters of
public record).
14. In Sweetland v. State, 535 So.2d 646 (Fla. 1
st DCA 1988), the court
reasoned that the purpose of discovery is to eliminate the likelihood of surprise
and to insure a fair opportunity to prepare for trial. Florida Rule of Civil Procedure
1.280(b)(1); see also Surf Drugs. Inc .. v. Vermette, 236 So.2d 108, 111 (Fla.
1970)(stating that the rules of discovery should be afforded broad and liberal
treatment to effectuate their purpose), citing, Hickman v. Taylor, 329 U.S. 495,
501, 507 (1947).
15. Next, the right to go to court to resolve disputes is a fundamental right.
D.R. Lakes. Inc. v. Brandsmart U.S.A. of West Palm Beach, 819 So.2d 971 (Fla. 4th
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DCA 2002). All litigants are afforded an equal opportunity. Lingle v. Dion, 776
So.2d 1073 (Fla. 4th DCA 2001). The Florida Constitution establishes the right
commonly known as access to courts. Mitchell v. Moore, 786 So.2d 521 (Fla.
2001 ). Courts shall be open to any person for the redress of any injury and justice
shall be administered without sale, denial or delay. Art. I, §21, Fla. Const.; 10A Fla.
Jur. 2d, Constitutional Law, §360.
16. If Jane Doe's name is not disclosed and identified, Mr. Epstein will not
be afforded his fundamental right to fairly litigate this dispute and prepare for trial.
Accordingly, Epstein requests that JANE DOE be identified by her legal name in the
pleadings.
c. Response In Opposition And Motion To Identify JANE DOE In Third Party Subpoenas
17. Epstein will be effectively denied his due process rights to conduct
broad, open and liberal discovery in that Plaintiffs counsel has objected to,
among other things, Epstein identifying JANE DOE in various third-party
subpoenas to her medical providers and other third parties.
18. The undersigned must serve subpoenas on medical doctors to
obtain medical information on JANE DOE's alleged psychological and physical
damages as same goes to the heart of Epstein's defenses and Plaintiff's
damages. Plaintiff is claiming emotional/psychological damages. Therefore,
Epstein is entitled to know her psychological condition(s) before and after the
alleged incident(s) she references in the Complaint. In particular, JANE DOE
alleges specific disorders as a result of Epstein's alleged conduct - suffer " ..
. physical injury, pain and suffering, emotional distress, psychological and
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psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss
of educational opportunities, loss of self-esteem, loss of dignity, invasion of her
privacy ... , and medical and psychological expenses ... , loss on income, loss
of the capacity to earn income in the future, and loss of the capacity to enjoy life."
(Emphasis Added). See supra. Epstein is also entitled to know, among other
things, whether she had any physical complaints or whether there was ever any
evidence of physical battery on JANE DOE's body from the acts she complains
of in the Complaint. The need to serve third-party subpoenas on medical doctors
is a basic discovery need related to the claims alleged by JANE DOE for which
Plaintiff's counsel refuses to compromise. Balas v. Ruzzo, 703 So.2d 1076 (Fla.
5th DCA 1997), rev. denied, 719 So.2d 286 (Fla. 1998)(discoverability of
Plaintiffs history of sexual activity is relevant to damages); United States v. Bear
Stops, 997 F.2d 451 (8th Cir. 1993)(deals with "admissibility of other acts of
sexual abuse by individuals other than the defendant to explain why a victim of
abuse exhibited behavioral manifestations of a sexually abused child.") If
Plaintiff saw a psychologist or other physician during or after the time periods she
claims she was assaulted by Epstein but either did not discuss or did discuss the
incidents (or lack thereof) would be directly relevant to her damage claims.
Plaintiff seeks physical and emotional/mental personal injury type damages, and
the Epstein must conduct his own discovery thereon. See supra. No valid
discovery objections or exemptions exist preventing necessary and reasonable
discovery. To hold otherwise prevents Mr. Epstein from preparing and defending
this matter.
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19. In defending this lawsuit, Mr. Epstein should be permitted broad
discovery, whether admissible at trial or not. Fed.R.Civ.Pro. 26 provides, in
pertinent part, that "parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action."
20. In addition, subpoenas must also be served upon various local and
state institutions in order to determine what crimes, if any, JANE DOE has
committed (i.e., crimes that involve dishonesty and/or false statement).
Obviously, this goes directly to the heart of JANE DOE's damages she claims
suffer " ... physical injury, pain and suffering, emotional distress, psychological
and psychiatric trauma, mental anguish, humiliation, confusion, embarrassment,
loss of educational opportunities, loss of self-esteem, loss of dignity, invasion of
her privacy ... , and medical and psychological expenses ... , loss on income,
loss of the capacity to earn income in the future, and loss of the capacity to enjoy
life" - caused by Epstein or other events in her life) for which a jury is entitled to
hear about at trial, and certified records must be obtained from the clerk should
JANE DOE answer certain questions regarding her crimes incorrectly.
21. Epstein is entitled to know whether Jane Doe committed and/or
was charged with any crimes. If Jane Doe was charged with crimes, Epstein is
entitled to obtain certified copies of those crimes Plaintiff may have committed for
purposes of discovery and impeachment. Questions will be asked regarding
those crimes (e.g., Have you been convicted of a crime of dishonesty or false
statement? If so, how many times? Have you been convicted of a felony? If so,
how many times?) To hold otherwise would not only prevent broad discovery but
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would ultimately result in reversible error at any trial.
II. Conclusion and Prayer for Relief
22. Epstein requests the following relief:
a. That JANE DOE's Motion to Proceed Anonymously be denied;
b. That this Court grant Epstein's Motion and that JANE DOE be
identified by her legal name in the style of this case; and
c. That Epstein be granted leave to identify JANE DOE by her
legal name in Third-Party Subpoenas (but not file them in Court
or, if required, in a redacted form).
WHEREFORE, Epstein, Jeffrey Epstein, respectfully requests that this
Court enter said order granting the relief requested above, and for such other
and further relief as this Court may deem just and proper.
tl
By: .;-,l':-z':i..q.-!'q.....~:::::....=---- ROB •• T R ON, JR., ESQ.
MICHAEL J. PIKE, ESQ.
Certificate of Service
I HEREBY CERTIFY that a true copy of the foregoing was electronically
filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record identified on the
following Service List in the manner specified by CM/ECF on this /J day of
May, 2009
Robert C. Josefsberg, Esq.
Katherine W. Ezell, Esq.
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
305 358-2800
Fax: 305 358-2382
rjosefsberg@podhurst.com
kezell@podhurst.com
Counsel for Plaintiff
Jack Alan Goldberger, Esq.
Atterbury Goldberger & Weiss, P.A.
250 Australian Avenue South
Suite 1400
West Palm Beach, FL 33401-5012
561-659-8300
Fax: 561-835-8691
jagesq@bellsouth.net
Counsel for Defendant Jeffrey Epstein
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By: ;,;:;z;i~~~:;:;-;:;-;-;:;--;::;::;; RO . CRITTON, JR., ESQ.
Florida Bar No. 224162
rcrit@bclclaw.com
MICHAEL J. PIKE, ESQ.
Florida Bar #617296
mpike@bclclaw.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)
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