016.pdf

Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 1 of 15
JANE DOE NO. 2,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 3,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 4,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. 5,
Plaintiff,
vs.
JEFFREY EPSTEIN,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CV-80119-MARRA/JOHNSON
I
CASE NO.: 08-CV-80232-MARRA/JOHNSON
I
CASE NO.: 08-CV-80380-MARRA/JOHNSON
I
CASE NO.: 08-CV-80381-MARRA/JOHNSON
Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 2 of 15
Defendant.
_____________ _____,!
JANE DOE NO. 6,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 08-CV-80994-MARRA/JOHNSON
_____________ _____,!
JANE DOE NO. 7,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 08-CV-80993-MARRA/JOHNSON
_____________ _____,/
C.M.A.,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE,
Plaintiff,
vs.
CASE NO.: 08-CV-80811-MARRA/JOHNSON
I
CASE NO.: 08-CV-80893-MARRA/JOHNSON
2
Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 3 of 15
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. II,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
JANE DOE NO. IOI,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
I
CASE NO.: 08-CV-80469-MARRA/JOHNSON
I
CASE NO.: 09-CV-80591-MARRA/JOHNSON
-------------~/
JANE DOE NO. 102,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
CASE NO.: 09-CV-80656-MARRA/JOHNSON
-------------~/
PLAINTIFFS JANE DOE NO. 101 AND JANE DOE NO. 102's
MOTION FOR AN ORDER FOR THE PRESERVATION OF EVIDENCE
AND INCORPORATED MEMORANDUM OF LAW
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 4 of 15
Plaintiffs, Jane Doe No. 101 and Jane Doe No. 102 (the "Plaintiffs"), pursuant to Rules
26, 34, and 37 of the Federal Rules of Civil Procedure, hereby move this Court for an Order for
the Preservation of Evidence directed to Defendant, Jeffrey Epstein, and, as grounds, state as
follows:
I. After investigations by the Palm Beach Police Department ("PBPD"), the Palm
Beach State Attorney's Office ("PB SAO"), the Federal Bureau of Investigation ("FBI"), and the
United States Attorney's Office for the Southern District of Florida ("USAO"), Defendant,
Jeffrey Epstein, in June 2008, entered pleas of "guilty" in the Fifteenth Judicial Circuit in Palm
Beach County, Florida, to various Florida state crimes involving the solicitation of minors for
prostitution and the procurement of minors for the purposes of prostitution.
2. As outlined in detail in the relevant complaints, beginning in or around 1998
through in or around September 2007, Defendant used his resources and his influence over
vulnerable minor children to engage in a systematic pattern of sexually exploitative behavior.
Defendant, Jeffrey Epstein, sexually abused Plaintiffs while Plaintiffs were under the age of 18
years old.
3. As a result of Defendant's sexual abuse, Plaintiffs filed their actions, alleging
multiple violations of federal statutes condemning the coercion and enticement of a minor to
engage in prostitution or sexual activity, travel with intent to engage in illicit sexual conduct, sex
trafficking of children, sexual exploitation of minor children, transport of visual depictions of a
minor engaging in sexually explicit conduct, transport of child pornography, child exploitation
enterprises, and other crimes, specifically including, but not limited to, those crimes designated
in 18 U.S.C. § 2421, § 2422(a), § 2422(b), § 2423(a), § 2423(b), § 2423(e), § 2251, § 2252, §
2252A(a)(l), and§ 2252A(g)(l).
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4. On October 25, 2005, the PBPD executed a search warrant at Defendant's Palm
Beach, Florida mansion at 358 El Brillo Way. Thus, Defendant reasonably should have known
of potential criminal prosecution and/or civil litigation since at least that date.
5. According to the PBPD Property Receipt, evidence seized during the October 25,
2005 search included phone message books, photographs of nude underage females, VHS tapes,
CDs, and school transcripts of underage girls. See PBPD Property Receipt (attached hereto as
Exhibit A). While still incarcerated, Defendant filed a Motion for Return of Property with the
Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County on July 23, 2008.
On September 5, 2008, this Court entered an Order in Jane Doe v. Jeffrey Epstein, et al., Case
No. 08-80804-CIV-MARRA/JOHNSON, directing Defendant to preserve the evidence listed in
the PBPD Property Receipt and to provide duplicates to the plaintiff should this evidence be
returned to Defendant by the State of Florida (DE# 20).
6. According to the PBPD Property Receipt, at least some of the evidence has
already been returned to Defendant, including zip CDs, 8mm videotapes, floppy disks, zip drive
disks, CPUs from various areas throughout the mansion, and phone message books. Upon
information and belief, one or more sexually explicit printed photographs of Plaintiffs and other
minor girls taken by Defendant and/or his agents when Plaintiffs were minors were confiscated
during the search and may have been returned to him. In addition, the zip CDs, 8mm videotapes,
floppy disks, zip drive disks, and CPUs that were returned to Defendant may have contained, and
may still contain, pornographic images of these and other minors. Plaintiffs respectfully request
that this Court clarify that the Order of September 5, 2008 requires returned evidence to be
preserved.
7. In addition, Plaintiffs respectfully request this Court to take judicial notice that, in
the event that such evidence includes child pornography, it is imperative for the PBPD, the FBI,
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 6 of 15
the USAO, and the PBSAO not to return any photographs that may be child pornography
(including files, electronic or otherwise) to Defendant or his counsel. Pursuant to the Adam
Walsh Protection and Safety Act, Pub. L. No. 109-248, 120 Stat. 587 (2006), any property or
material that constitutes child pornography shall remain in the care, custody, and control of either
the government or the court. Defendant has no right to seek its return. See 18 U.S.C. § 3509(m)
(2008). In addition, copying evidence that constitutes child pornography is not permissible as
long as the Government makes the property or material reasonably available to the defendant.
See 18 U.S.C. § 3509(m)(2)(A) (2008).
8. In addition to evidence related to the October 25 search, Defendant, Jeffrey
Epstein, exercises sole custody and control over specific evidence relevant and material to this
lawsuit relating to Defendant's sexual abuse of Plaintiffs, including, but not limited to,
documents, data, and tangible things, including, but not limited to, writings; records; files;
correspondence; digital or chemical process photographs (including negatives); reports;
memoranda; calendars; diaries; minutes; electronic messages; voicemail; e-mail; telephone
message records or logs; computer and network activity logs; hard drives; backup data;
removable computer storage media, such as tapes, disks, and cards; printouts; document image
files; web pages; databases; spreadsheets; software; books; ledgers; journals; orders; invoices;
bills; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts;
diagrams; graphic presentations; drawings; films; charts; video, phonographic, tape, or digital
recordings or transcripts thereof; drafts; jottings; and notes. Information that serves to identify,
locate, or link such material, such as file inventories, file folders, indices, and metadata, is also
included. Specifically, Plaintiffs consider the following evidence relevant: records of phone
communications; records of domestic and international travel, including travel in Defendant's
private airplanes; former and current employee records; tax returns; medical bills; bills regarding
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 7 of 15
any other expenses; all documents evidencing payment by Defendant of U.S. currency and/or
merchandise to each victim; any evidence stored in Defendant's storage unit; photographs of
Defendant's mansions; any diary, log, memo pad, calendar, or other writing reflecting date of
each victim's visit(s) to Defendant's mansions; any diary or document wherein each victim
wrote regarding a victim's visit to Defendant's mansions; all documents sent to or by the PBPD,
the FBI, the USAO, or the PBSAO; and all computers used by Defendant and/or his agents
and/or employees since 1998.
9. Other relevant evidence includes, but is not limited to, electronically-stored
information stored on Defendant's current and former computer systems and other media and
devices (including handheld devices, personal digital assistants, voice-messaging systems, online
repositories, and cellular telephones). Electronically-stored information should be afforded the
broadest possible meaning and includes ( by way of example and not as an exclusive list)
potentially relevant information electronically, magnetically, optically, or otherwise stored as:
I. Digital communication (e.g., e-mail, voice mail, instant messaging);
2. E-mail Server Stores (e.g., Lotus Domino .NSF and Microsoft Exchange .EDB)
3. Word-processed documents (e.g., Word and WordPerfect files and drafts);
4. Spreadsheets and tables (e.g., Excel or Lotus 123 worksheets);
5. Accounting Application Data (e.g., QuickBooks, Money, Peachtree data);
6. Image and Facsimile Files (e.g., .PDF, .TIFF, .JPG, .GIF images);
7. Sound Recordings (e.g., .W AV and .MP3 files);
8. Video and Animation (e.g., .AV! and .MOV files);
9. Databases (e.g., Access, Oracle, SQL Server data, SAP);
10. Contact and Relationship Management Data (e.g., Outlook, ACTI);
11. Calendar and Diary Application Data (e.g., Outlook PST, blog entries);
12. Online Access Data (e.g., Temporary Internet Files, History, Cookies);
13. Presentations (e.g., PowerPoint, Corel Presentations);
14. Network Access and Server Activity Logs;
15. Project Management Application Data;
16. Computer Aided Design/Drawing Files; and
17. Backup and archival files (e.g., Veritas, Zip, .GHO).
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 8 of 15
10. Plaintiffs also respectfully request this Court to order Defendant to preserve all
potentially relevant evidence, even if Defendant does not intend to produce such evidence
because he anticipates raising his Fifth Amendment privilege against self-incrimination.
11. As more fully set forth in Plaintiff Jane Doe No. 102's Complaint (DE# 1 in Case
No.: 09-CV-80656-MARRA/JOHNSON), Defendant is a designated sexual offender who
sexually exploited minor girls all over the world, including in some or all of his six mansions.
Thus, there is reason to believe that relevant evidence, including many photographs of other nude
underage females, exists in some or all of Defendant's six mansions, with all but one of his
mansions located outside the State of Florida.
12. On May 15, 2009, Plaintiffs counsel sent a letter to Defendant's counsel detailing
the numerous sources of relevant evidence in this matter (the "Preservation Letter," attached
hereto as Exhibit B). Despite requests for a written response confirming Defendant's duty to
take the necessary steps to preserve all relevant evidence, Defendant and his counsel have neither
acknowledged this letter nor confirmed their duty to preserve all relevant evidence under the
Federal Rules of Civil Procedure.
13. In the past, Defendant's counsel have asserted that a motion requesting to
preserve evidence would be moot because of an order previously entered in Jane Doe v. Jeffrey
Epstein, et al., Case No. 08-80804-CIV-MARRA/JOHNSON. Plaintiffs respectfully submit that
an enforceable order is needed in their particular cases and that the binding order needs to cover
evidence other than evidence related to the October 25, 2005 search of Defendant's Palm Beach
mansion. The sole focus of the previous order is seized evidence identified in the PBPD
Property Receipt. There is great need to preserve all evidence (physical and electronic),
especially with respect to potential evidence related to Defendant's possession, production,
and/or transportation of child pornography. In addition, there is reason to believe that relevant
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 9 of 15
evidence, including many photographs of other nude mmor girls, exist in some or all of
Defendant's six mansions and/or on some or all of his computers. Given Defendant's efforts to
gain control over evidence in the custody of the PBPD, as well as Defendant's unwillingness to
acknowledge or respond to Plaintiffs Preservation Letter, a legitimate concern remains for the
continuing existence and maintenance of the integrity of the evidence in question absent an order
preserving the evidence. This evidence, some of which is in the sole custody, dominion, and
control of Defendant, is critical and indispensable to Plaintiffs' cases.
Memorandum of Law
When there is a good faith belief that evidence may be lost, the Court has the authority to
enter an order preserving such evidence. See AT & T Mobility LLC v. Dynamic Cellular Corp.,
No. 08-20537-Civ., 2008 WL 2139518, at *2 (S.D. Fla. May 7, 2008); see also Trac/one
Wireless. Inc. v. King Trading, Inc., No. 3-08-CV-0398-B, 2008 WL 918243, at *1 (N.D. Tex.
Mar. 13, 2008) (finding "a legitimate concern for the continuing existence and maintenance of
the integrity of the evidence in question absent an order preserving the evidence"). This
evidence, some of which is in the sole custody, dominion, and control of Defendant, is critical
and indispensable to Plaintiffs' cases. The evidence that Plaintiffs seek to protect is relevant and
critical to the prosecution not only of their actions, but for the prosecution of at least ten other
filed actions against Defendant and twenty-two other as-yet-unfiled actions by Defendant's
victims listed on the USAO List. Plaintiffs' concerns outweigh any harm to Defendant that may
result from a preservation order. Given Defendant's vast wealth and demonstrated willingness to
incur expenses, Defendant will not be unduly burdened by such an order. See Trac/one Wireless,
Inc., 2008 WL 918243, at *I.
Defendant, Jeffrey Epstein, is a designated sexual offender who was convicted of
violating various Florida state crimes involving the solicitation of minors for prostitution and the
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 10 of 15
procurement of minors for the purposes of prostitution, and is currently serving his sentence
based on the charges that form the foundation of Plaintiffs' claims. Therefore, it is reasonable to
assume that both the evidence seized by the PBPD and other relevant evidence in Defendant's
custody and control is extremely harmful to Defendant's position in his civil cases. Defendant's
successful efforts to obtain the return of some of the seized property causes Plaintiffs grave
concern regarding his willingness to comply with his duty to preserve all evidence relevant to
Plaintiffs' actions. Without a protective order, Defendant, Jeffrey Epstein, may seek to destroy
records and information to thwart this lawsuit and many other lawsuits and thus perpetuate the
wrongs that the federal laws regarding the sexual exploitation of children intend to protect.
Because of the nature of the relevant violations, which include allegations of production
and transportation of child pornography, electronically-stored information is a valuable and
irreplaceable source of discovery and/or evidence in these matters. Plaintiffs anticipate that
much of the information subject to disclosure or responsive to discovery in this cause is stored on
Defendant's former computer systems and other media and devices. In addition, as previously
stated, Plaintiffs believe that crucial relevant evidence may be present in some or all of the
computers in perhaps each of his six mansions (in Palm Beach, New York City, Santa Fe,
London, Paris, and the U.S. Virgin Islands).
Finally, in the other pending Jane Doe cases with active discovery, Defendant, Jeffrey
Epstein, has objected to the production of any evidence on Fifth, Sixth, and Fourteenth
Amendment grounds. Plaintiffs Jane Doe No. 101 and Jane Doe No. 102 challenge Defendant's
objections to discovery and, more relevant to the matter at hand, request that this Court issue an
order clearly stating that Defendant has a duty to preserve all relevant evidence, regardless of
whether he intends to raise his privilege against self-incrimination. See Capricorn Power Co. v.
Siemens Westinghouse Power Corp., 220 F.R.D. 429, 434 (W.D. Pa. 2004) (A motion for a
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 11 of 15
preservation order can be granted with regard to all items of evidence that are discoverable in
accordance with the Federal Rules of Civil Procedure, without the necessity of establishing that
the evidence will necessarily be relevant and admissible at trial.)
WHEREFORE, in light of the above-stated duty to preserve all relevant evidence,
Plaintiffs, Jane Doe No. 101 and Jane Doe No. 102, move this Court to enter an Order granting
Plaintiffs Jane Doe No. 101 and Jane Doe No. 102's Motion for the Preservation of Evidence.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1.A.3
Undersigned counsel conferred with counsel for Defendant in a good faith effort to
resolve the issues raised in this motion. Despite requests for a written response acknowledging
Defendant's duty to take the necessary steps to preserve all relevant evidence to alleviate the
need for this motion, Defendant's counsel have failed to respond or acknowledge in any way
Defendant's duty to preserve all relevant evidence under the Federal Rules of Civil Procedure.
Date: May 26, 2009
11
s/Robert C. Josefsberg
Robert C. Josefsberg, Bar No. 040856
Katherine W. Ezell, Bar No. 114771
Podhurst Orseck, P.A.
City National Bank Building
25 West Flagler Street, Suite 800
Miami, Florida 33130
(305) 358-2800
(305) 358-2382 (fax)
rjosefsberg@podhurst.com
kezell@podhurst.com
Attorneys for Plaintiffs Jane Doe No. IOI
and Jane Doe No. 102
Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 12 of 15
Certificate of Service
I hereby certify that, on May 26, 2009, I electronically filed the foregoing document 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 attached Service List in the manner specified,
either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
Notices of Electronic Filing.
12
Isl Robert Josefsberg
Robert C. Josefsberg, Bar No. 040856
Katherine W. Ezell, Bar No. I 14771
Podhurst Orseck, P.A.
City National Bank Building
25 West Flagler Street, Suite 800
Miami, Florida 33130
(305) 358-2800
(305) 358-2382 (fax)
riosefsberg@podhurst.com
kezell@podhurst.com
Attorneys for Plaintiffe Jane Doe No. I OJ
and Jane Doe No. I 02
Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 13 of 15
SERVICE LIST
JANE DOE NO. 2 v. JEFFREY EPSTEIN
Case No. 08-CV-80119-MARRA/JOHNSON
United States District Court, Southern District of Florida
Robert Critton, Esq.
Michael J. Pike, Esq.
Burman, Critton, Luttier & Coleman LLP
515 North Flagler Drive, Suite 400
West Palm Beach, FL 33401
Phone: (561) 842-2820
Fax: (561) 515-3148
rcrit@bclclaw.com
mpike@bclclaw.com
Counsel.for Defendant, Jeffrey Epstein
Jack Goldberger, Esq.
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue South, Suite 1400
West Palm Beach, FL 33401
Phone: (561) 659-8300
Fax: (561) 835-8691
jagesg@bellsouth.net
Co-Counsel for Defendant, Jeffrey Epstein
Bruce E. Reinhart, Esq.
Bruce E. Reinhart, P.A.
250 South Australian A venue, Suite 1400
West Palm Beach, FL 33401
Phone: (561) 202-6360
Fax: (561) 828-0983
ecf@brucereinhartlaw.com
Counsel for Co-Defendant, Sarah Kellen
Jack Scarola, Esq.
Jack P. Hill, Esq.
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
Phone: (561) 686-6300
Fax: (561) 383-9456
isx@searcylaw.com
iph@searcylaw.com
Counsel.for PlaintiffC.MA.
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 14 of 15
Adam Horowitz, Esq.
Stuart Mermelstein, Esq.
Mermelstein & Horowitz, P.A.
18205 Biscayne Blvd., Suite 2218
Miami, FL 33160
Phone: (305) 931-2200
Fax: (305) 931-0877
ahorowitz@sexabuseattorney.com
smermelstein@sexabuseattorney.com
Counsel for Plaintiffe in Related Case Nos. 08-80069, 08-80119,08-80232, 08-80380, 08-80381,
08-80993, 08-80994
Spencer Todd Kuvin, Esq.
Theodore Jon Leopold, Esq.
Leopold Kuvin, P.A.
2925 PGA Boulevard, Suite 200
Palm Beach Gardens, FL 33410
Phone: (561) 515-1400
Fax: (561) 515-1401
skuvin@leopoldkuvin.com
tleopold(iil,leopoldkuvin.com
Counsel/or Plaintiff in Related Case No. 08-08804
Richard Willits, Esq.
Richard H. Willits, P.A.
2290 10th Ave North, Suite 404
Lake Worth, FL 33461
Phone: (561) 582-7600
Fax: (561) 588-8819
lawyerwillits@aol.com
reelrhw@hotmail.com
Counsel for Plaintiff in Related Case No. 08-8081 I
Brad Edwards, Esq.
Law Office of Brad Edwards & Associates, LLC
2028 Harrison Street, Suite 202
Hollywood, FL 33020
Phone: (954) 414-8033
Fax: (954) 924-1530
bedwards@rra-law.com
be(ivbradedwardslaw .com
Counsel for Plaintiff in Related Case No. 08-80893
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Case 9:09-cv-80656-KAM Document 16 Entered on FLSD Docket 05/26/2009 Page 15 of 15
Isidro Manuel Garcia, Esq.
Garcia Elkins & Boehringer
224 Datura Avenue, Suite 900
West Palm Beach, FL 33401
Phone: (561) 832-8033
Fax: (561) 832-7137
isidrogarcia@bellsouth.net
Counsel for Plaintiff in Related Case No. 08-80469
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