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Case 1:19-cv-10476-PGG-DCF Document 37 Filed 05/07/20 Page 1 of 5

BSF BOIES
SCHILLER
FLEXNER

Sigrid S. McCawley
Telephone: (954) 377-4223
Email: smccawley@bsfllp.com

May 7, 2020

VIA ECF

The Honorable Debra Freeman
Daniel Patrick Moynihan
United States Courthouse
500 Pearl St.
New York, NY 10007-1312

Re: Teresa Helm v. Darren K. Indyke & Richard D. Kahn, 19-10476-PGG-DCF

Dear Judge Freeman:

We write on behalf of Plaintiff Teresa Helm in the above-captioned litigation. Pursuant to
Individual Rule II.J and Local Civil Rule 37.2, Plaintiff respectfully requests a pre-motion
conference on Plaintiff’s anticipated motion to compel Defendants Darren K. Indyke and Richard
D. Kahn (1) to produce responsive documents from the Relevant Period as described in Plaintiff’s
discovery requests; (2) to produce documents responsive to Plaintiff’s requests, not simply
documents that directly mention Plaintiff’s name; and (3) to respond to Plaintiff’s interrogatories.1
The Court has made clear that discovery in this case would not be stayed pending the approval of
the claims administration program or a motion to dismiss absent a contrary order from the Court.
See Tr. of Nov. 21, 2019 Conf. at 30:10-12. Yet by failing to comply with their clear and
unequivocal discovery obligations, including not producing a single document to date, Defendants
are attempting to grant themselves a de facto stay of discovery. Defendants have provided no basis
for their delay.

I. Background

Plaintiff alleges that Jeffrey Epstein and his co-conspirators operated a decades-long
sex-trafficking scheme by which they recruited young women for sexual abuse. Compl. ¶¶ 22–
26. Plaintiff was one of those women. Epstein and his associates trafficked her from California
in 2002 and Epstein sexually assaulted her during a massage in New York. Id. ¶¶ 36–39, 46–50.
After years of suffering in silence due to fear, Plaintiff filed a complaint against Defendants on
November 12, 2019.

On January 23, 2020, the parties exchanged initial Rule 26 disclosures. Defendants’ Rule
26 Disclosures were vacuous. Defendants provided the name of one witness, Plaintiff—and
stated that they were not aware of any documents, ESI, or tangible things in their possession,
custody, or control that they would use to support their defenses. Exhibit A, Jan. 23, 2020 Initial

1 Pursuant to Individual Rule I.C., Plaintiff states that she conferred in good faith
with Defendants about the issues raised in this letter by telephone on April 27, 2020.

BOIES SCHILLER FLEXNER LLP

401 East Las Olas Boulevard, Suite 1200, Fort Lauderdale, FL 33301 | (954) 356 0011 | (954) 356 0022 | www.bsfllp.com

Case 1:19-cv-10476-PGG-DCF Document 37 Filed 05/07/20 Page 2 of 5

Disclosures of Defendants Darren K. Indyke and Richard D. Kahn. In response to Defendants’
lack of information as to what relevant documents were in their possession, custody, or control, on
January 28, 2020, Plaintiff sent them a document preservation notice and identified various email
accounts used by Jeffrey Epstein. Exhibit B, Jan. 28, 2020 Document Preservation Notice.
Defendants responded on February 3, 2020, by stating that they were abiding by all of their
discovery obligations, including their preservation obligations. Exhibit C, Feb. 3, 2020 Letter from
B. Moskowitz to S. McCawley.

On March 10, 2020, Plaintiff served 68 Requests for Production (“RFPs”) and 14
Interrogatories on Defendants (collectively, Plaintiff’s “discovery requests”). In Plaintiff’s
interrogatories, she again asked Defendants to identify potential witnesses, in addition to email
accounts used by Epstein, telephone numbers used by Epstein, and other information to aid
Plaintiff in identifying witnesses and the location of evidence necessary to prove her case. On
April 16, 2020, after Plaintiff provided Defendants a week-long extension, Defendants served
responses and objections in which they failed to respond to a single Interrogatory (aside from
identifying Plaintiff as a witness to her own abuse) and failed to produce a single document.
Exhibit D, Defendants’ Apr. 16, 2020 Objections and Responses to Plaintiff’s First Set of
Interrogatories; Exhibit E, Defendants’ Apr. 16, 2020 Objections and Responses to Plaintiff’s First
Request for Production of Documents.

On April 27, 2020, after sending Defendants a letter regarding the clear deficiencies in their
responses and objections, Plaintiff met and conferred with Defendants for an hour and a
half. See Ex. F, Apr. 20, 2020 Letter from S. McCawley to B. Moskowitz. Defendants stated that
they had not yet fully processed the ESI in their possession, had not run any searches on the ESI,
and were not in a position to provide information about the ESI, despite having received Plaintiff’s
document retention notice in January and Plaintiff’s discovery requests in March. During the meet
and confer, Plaintiff also explained her position on the relevance and necessity of each of her
discovery requests, and offered to answer any questions that Defendants had about the relevance
of any of her requests. Defendants refused to accept the Relevant Period that Plaintiff defined in
her discovery requests, and stated that they would only produce documents that reference Plaintiff.
They also stated, without providing any legal basis for their position, that they would not produce
anything relating to Epstein’s sex trafficking or abuse of other victims.

As of today, May 7, 2020, Plaintiff has yet to receive a single document or piece of
information responsive to any of her discovery requests, including the documents that specifically
reference Plaintiff that Defendants agreed to produce. The only information Defendants have
provided to Plaintiff in the course of discovery is their statement that Plaintiff is a witness in this
case. Plaintiff has produced more than 10,000 pages of documents responsive to Defendants’
discovery requests to date, and has responded to all of Defendants’ interrogatories to the best of
her ability.

II. Defendants’ Objection to the Relevant Period is Improper.

Defendants have improperly objected to the Relevant Period that Plaintiff defined in her
discovery requests as January 1, 2002 to the present. Without providing any legal basis for their

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position, Defendants contend that the relevant time period should be limited to the year of
Plaintiff’s sexual assault as alleged in the Complaint.2

Under Rule 26 of the Federal Rules of Civil Procedure, parties may obtain discovery
“regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1). “[R]elevance for the purposes of discovery is an extremely broad concept.” Melendez
v. Greiner, No. 01 CIV. 07888 SAS DF, 2003 WL 223434101, at *1 (S.D.N.Y. Oct. 23, 2003)
(Freeman, J.).

This case turns on (1) whether Jeffrey Epstein sexually trafficked and sexually assaulted
Plaintiff and (2) whether Plaintiff’s claims are timely, an affirmative defense that Defendants have
already raised in a motion to dismiss. ECF No. 27. Discovery from the Relevant Period as defined
by Plaintiff is relevant to both Plaintiff’s claims and Defendants’ statute of limitations defense,
and is reasonably calculated to lead to the discovery of admissible evidence.

Epstein’s sexual trafficking and assault of Plaintiff occurred in 2002. But Plaintiff has
reason to believe, based on publicly available documents, that Epstein and his co-conspirators
began trafficking and sexually abusing young girls and women in the same manner that he
trafficked and abused Plaintiff in the mid-1990s, and continued to do so up until the date of
Epstein’s arrest on July 8, 2019. Documents relating to the sexual trafficking and/or sexual assault
of others at any point during that period would make the fact that Epstein trafficked and sexually
assaulted Plaintiff, the key fact that Plaintiff bears the burden of proving in this case, more probable
than it would be without such evidence. See Fed. R. Evid. 401. Plaintiff also bears the burden of
proving Epstein’s intent to sexually assault her. See Cerilli v. Kezis, 16 A.D.3d 363, 364 (2d Dep’t
2005) (“The elements of battery are bodily contact, made with intent, and offensive in nature.”).
Evidence that he sexually trafficked and assaulted others would be directly relevant to proving
such intent. Such evidence would also likely be admissible at trial. See Fed. R. Evid. 415.

Further, Defendants have raised a statute of limitations defense in this matter, ECF No. 27,
and Plaintiff contends that they should be equitably estopped from doing so based on Epstein’s
misconduct. Compl. ¶ 14. Although Plaintiff disagrees with Defendants’ interpretation of the case
law, Defendants contend that to invoke equitable estoppel, Plaintiff bears the burden of proving
that Epstein’s “conduct cause[d] her to delay bringing suit,” that Epstein “made a definite
misrepresentation of fact, and had reason to believe that the Plaintiff would rely on it,” and that
“Plaintiff reasonably relied on that misrepresentation.” ECF No. 27 at 9. Documents relating to
Epstein’s misconduct after his abuse of Plaintiff could very well be relevant to equitable estoppel,
including to whether Plaintiff reasonably relied on that misconduct in staying silent about her
abuse until after Epstein’s death.

The fact that Epstein and his co-conspirators carried out a global sex-trafficking operation,
which directly injured Plaintiff, for 20 years does not mean that Plaintiff is not entitled to discovery
about that operation. Yet Defendants have taken that position and have not indicated any
willingness to change it. The Court should direct Defendants to search documents within their
possession, custody, or control from the Relevant Period as described in Plaintiff’s discovery
requests—2002 to the present.

2 This is despite the fact that Defendants themselves served discovery requests on Plaintiff
in which they defined the relevant time period as “the date on which you first learned of Decedent
through the date of your responses to these requests.”

Case 1:19-cv-10476-PGG-DCF Document 37 Filed 05/07/20 Page 4 of 5

III. Defendants Must Produce More than Documents That Explicitly Reference Plaintiff.

In addition to their blanket objection to the production of documents from any year aside
from the year during which Plaintiff was herself sexually assaulted, Defendants contend that they
will only produce one category of documents: those that specifically mention Teresa Helm.
Defendants have refused, without providing any legal basis for doing so, to produce any document
that does not directly reference Plaintiff, regardless of the year.

Defendant cannot broadly object to producing any documents that do not directly reference
Plaintiff. Documents relevant to Plaintiff’s claims and Defendants’ defenses go well beyond
documents that reference Plaintiff. The following is a small sampling of examples of relevant
documents that would not necessarily mention Plaintiff:

 As explained above, documents evidencing Epstein’s trafficking and sexual
assaults of others, although not about Plaintiff herself, are directly relevant to
whether he trafficked and sexually assaulted Plaintiff.

 Epstein’s communications with his co-conspirators are likely to evidence the
scheme by which Epstein recruited and abused Plaintiff, even if they do not
specifically mention Plaintiff. For example, documents in which Epstein and his
co-conspirators discuss recruiting young masseuses or arranging for the travel of
girls for sexual abuse would corroborate Plaintiff’s allegations.

 Documents relating to payments from Epstein to his employees are relevant to
whether Epstein paid his employees to keep them quiet, and would be relevant in
impeaching witnesses in this case.

 Documents relating to Epstein’s silencing, intimidation, and manipulation of
victims other than Plaintiff is relevant to establishing whether Plaintiff reasonably
feared Epstein, which is relevant to Defendants’ statute of limitations defense and
Plaintiff’s equitable estoppel theory.

Plaintiff explained these theories of relevance during a meet and confer call with
Defendants. Without any legal basis, and while purporting to understand Plaintiff’s position,
Defendants consistently maintained that they would not produce any document that does not
directly mention Teresa Helm. This position unwarranted, legally baseless, and unacceptable, and
Defendants have not indicated that they are willing to change it. The Court should direct
Defendants to search for documents within their possession, custody, or control and not allow
Defendants to unilaterally and arbitrarily limit their search to documents that reference Plaintiff’s
name.

IV. Defendants Must Respond to Plaintiff’s Interrogatories.

Plaintiff served 14 Interrogatories to Defendants, and Defendants failed to answer a single
one, aside from listing Plaintiff as an “individual who may have knowledge concerning the issues
in this lawsuit.” Ex. D at 2. Plaintiff asked Defendants to identify email accounts used by Epstein
or his employees or agents on his behalf—Defendants provided no answer. Id. Plaintiff asked
Defendants to identify telephone numbers used by Epstein or his employees or agents on his
behalf—Defendants provided no answer. Id. at 4. Plaintiff asked Defendants to provide a list of
Epstein’s employees in an effort to identify potential witnesses to Epstein’s abuse of Plaintiff and

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other victims—Defendants provided no answer. Id. This is despite the fact that Defendant Kahn
was Epstein’s longtime accountant and likely knows who was on Epstein’s payroll. This total
failure to answer even basic questions about the location of documents and potential witnesses is
egregious.

When asked about their failure to respond to any interrogatories, in addition to raising their
meritless objections to the Relevant Period and to producing information that does not relate
directly to Plaintiff, Defendants stated that they do not have responsive information because
Epstein is dead and Defendants do not know where to look for responsive information. Defendants
also drew a distinction between their capacities as Epstein’s lawyer and accountant, as opposed to
their capacities as executors of his Estate, and could not give Plaintiff a clear answer as to their
position on how that distinction affects their discovery obligations. For example, Defendants’
counsel could not tell Plaintiff whether Darren Indyke—Epstein’s longtime lawyer who has ties to
Epstein’s co-conspirators3—or Richard Kahn—Epstein’s longtime accountant who assisted him
for years with both personal and professional accounting work—had ever been directly asked
whether they know of any individuals who might have information about Plaintiff’s claims.

Plaintiff still has no understanding of how Defendants have attempted to fulfill their
discovery obligations, or of what documents or information are within their possession, custody,
or control. At this stage in the litigation, such opaqueness is unacceptable and a clear attempt by
Defendants to avoid their discovery obligations in the hopes that the claims administration process
comes to fruition. But Defendants cannot unilaterally decide to stay this case. The Court should
direct Defendants to respond to Plaintiff’s interrogatories.

Respectfully submitted,

/s/ Sigrid S. McCawley

Sigrid S. McCawley, Esq.

cc: Counsel of Record (via ECF)

3 According to public records, Indyke for example, helped Ghislaine Maxwell buy her
townhouse, was listed on documents relating to one of Maxwell’s nonprofits, held a power of
attorney over one of Leslie Wexner’s properties, and employed Lesley Croff as an executive
assistant for his law practice. See Julia La Roche et al., Jeffrey Epstein’s Lawyers Deeply Involved
in His Business Dealings for Decades, Documents Show, Yahoo Finance (Aug. 13, 2019),
https://finance.yahoo.com/news/jeffrey-epstein-lawyers-darren-indyke-jeffrey-schantz-
164305188.html.