017-09.pdf

Case 9:10-cv-81111-WPD Document 17-9 Entered on FLSD Docket 11/11/2010 Page 1 of 37 Case 9:08-cv-80119-KAM Document 477 Entered on FLSD Docket 02/26/2010 Page 1 of 24
JANE DOE NO. 2,
Plaintiff,
VS.
JEFFREY EPSTEIN,
Defendant.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CIV-80119-MARRA/JOHNSON
_______________ /
Related cases:
08-80232, 08-08380, 08-80381, 08-80994,
08-80993, 08-80811, 08-80893, 09-80469,
09-80591,09-80656,09-80802,09-81092
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DEFENDANT'S, MOTION FOR RECONSIDERATION AND/OR REQUEST FOR
RULE 4 REVIEW AND APPEAL OF PORTIONS OF THE MAGISTRATE'S ORDER
DATED FEBRUARY 4, 2010 (DE 462), WITH INCORPORATED OBJECTIONS AND
MEMORANDUM OF LAW
Defendant, Jeffrey Epstein (hereinafter "Epstein"), by and through his undersigned
attorneys, hereby files his Motion for Reconsideration and/or for Request Rule 4 Review and
Appeal of Portions of the Magistrate's Order (DE 462) pursuant to Rule 60, Fed.R.Civ.P. Rule 4,
Rule 4(c) and Fed. R. Civ. P. 53(e). In support, Epstein states:
I. Procedural Background
Plaintiff's Motion to Compel is filed at DE (194). Defendant's Response in Opposition is
filed at DE (339), and the arguments set forth therein are incorporated herein by reference as if
completely set forth herein as each apply to request numbers 10, 12 and 13.
Significantly, these cases have been consolidated for discovery. Therefore, consistent
rulings must apply. In making those rulings, this Court must continue to recognize that the
allegations in the related cases cannot be forgotten. (Jig., see DE 242, 293, and 462).

Production of information in one case could provide a link in the chain of evidence used to
prosecute Epstein for a crime or provide an indirect link to incriminating evidence in another
case and in another jurisdiction. Id. and infra.
The Request for Production and the responses thereto are attached as Composite Exhibit
"A".
II. The Fifth Amendment
The Fifth Amendment serves as a guarantee against testimonial compulsion and provides,
in relevant part, that "[n]o person ... shall be compelled in any Criminal Case to be a witness
against himself." (DE 242, p.5); see also Edwin v. Price, 778 F.2d 668, 669 (11th Cir. 1985)
(citing Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). The privilege is accorded liberal
construction in favor of the right and extends not only to answers that would support a criminal
conviction, but extends also to those answers which would furnish a link in the chain of evidence
needed to prosecute the claimant for a crime. See Hoffman v. United States, 341 U.S. 479, 486
(1951 ). Information is protected by the privilege not only if it would support a criminal
conviction, but also in those instances where "the responses would merely 'provide a lead or
clue' to evidence having a tendency to incriminate." See United States v. Neff, 315 F.2d 1235,
1239 (9th Cir.), cert denied, 447 U.S. 925 (1980); Blau v. United States, 340 U.S. 159 (1950);
SEC v Leach, 156 F.Supp.2d 491,494 (E.D. PA. 2001).
Moreover, the act of production itself may implicitly communicate statements and, for
this reason, the Fifth Amendment privilege also encompasses the circumstances where the act of
producing documents in response to a subpoena or production request has a compelled
testimonial aspect. See United States v. Hubbell, 530 U.S. 27, 35-36 (2000). Thus, where the
existence or location of the requested documents are unknown, or where production would
"implicitly authenticate" the requested documents, the act of producing responsive documents is
considered testimonial and is protected by the Fifth Amendment. See In re Grand Jury
Subpoena, 1 F.3d 87, 93 (2nd Cir. 1993); Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1263 (9th Cir.
2000)(the "privilege" against self-incrimination does not depend upon the likelihood, but upon
the possibility of prosecution and also covers those circumstances where the disclosures would
not be directly incriminating, but could provide an indirect link to incriminating evidence).
III. The Requests For Production, Argument And Memorandum Of Law
a. Requests Numbers 7, 9 and 10
Request No. 7: All discovery information obtained by you or your
attorneys as a result of the exchange of discovery in the State criminal case
against you or the Federal investigation against you.
Request No. 9: Any documents or other evidentiary materials provided to
local, state, or federal law enforcement investigators or local, state or federal
prosecutors investigating your sexual activities with minors.
Request No. 10: All correspondence between you and your attorneys and
state or federal law enforcement or prosecutors (includes, but not limited to,
letters to and from the State Attorney's office or any agents thereof).
Response to Request Numbers 7, 9 and 10: Defendant is asserting specific
legal objections to the production request as well as his U.S. constitutional
privileges. I intend to produce all relevant documents regarding this lawsuit,
however, my attorneys have counseled me that at the present time I cannot select,
authenticate, and produce documents relevant to this lawsuit and I must accept
this advice or risk losing my Sixth Amendment right to effective representation.
Accordingly, I assert my federal constitutional rights under the Fifth, Sixth, and
Fourteenth Amendments as guaranteed by the United States Constitution.
Drawing an adverse inference under these circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and
would therefore violate the Constitution. In addition to and without waiving his
constitutional privileges, the information sought is privileged and confidential,
and inadmissible pursuant to the terms of the deferred prosecution agreement,
Fed. Rule of Evidence 410 and 408, and §90.410, Fla. Stat. Further, the request
may include information subject to work product or an attorney-client privilege.
In light of the Court's Order and the Reply which further defines exactly what Plaintiff
seeks (DE 354, p. 3), Epstein is now permitted to cautiously elaborate on his responses.
As to Request Number 7, Epstein and his attorneys do not have any "discovery
information" provided to them by the federal government.
As to Request Number 9, Epstein has not been given any evidentiary materials or
evidentiary documents by the federal government.
Request No. IO contravenes the critical public policy of encouraging the resolution of
criminal prosecutions without trial and the concomitant understanding that defendants will be
considerably more likely to engage in full and frank discussions with the government if they
need not fear that statements they or their counsel make to government prosecutors will be used
against them to their detriment. The critical importance of plea bargaining to the criminal justice
system has long been recognized. "[W]hatever might be the situation in an ideal world, the fact is
that the guilty plea and the often concomitant plea bargain are important components of this
country's criminal justice system. Properly administered, they can benefit all concerned."
Bordenkircher v. Hayes, 434 U.S. 357, 361-62 (1978), quoting Blackledge v. Allison, 431 U.S.
63, 71 (1977). To encourage defendants to participate in the plea negotiation process, rules have
developed to prohibit admission into evidence against the defendant of any and all statements he
or his counsel acting on his behalf makes to government prosecutors during the plea negotiation
process. This confidentiality protection is embodied in both Fed. R. Evid. 410 and Fed. R. Crim.
P. 11 (f). While these rules by their express terms refer only to admissibility of evidence, the
purposes and policies underlying these rules in instructive in this context, in which a civil
plaintiff seeks discovery of documents falling within the scope of these two rules.
Rule 410 was created to promote active plea negotiations and plea bargains, which our
Supreme Court has acknowledged are "important components of this country's criminal
justice system." ... Our Court of Appeals has held that "in order for plea bargaining to
work effectively and fairly, a defendant must be free to negotiate without fear that this
statements will later be used against him." ... Indeed, absent the protection of Rule 410,
"the possibility of self-incrimination would discourage defendants from being completely
candid and open during plea negotiations."
S.E.C. v. Johnson, 534 F.Supp.2d 63, 66-67 (D.D.C. 2008), quoting United States v. Davis, 617
F.2d 677,683 (D.C.Cir. 1980). See, M,, United States v. Mezzanatto, 513 U.S. 196,205,207
(l 995)(purpose of the rules is to encourage plea bargaining, and rules "creat[ e ], in effect, a
privilege of the defendant," quoting 2 J. Weinstein & M. Berger, Weinstein's Evidence i)410[05]
at 410-43 (1994)); United States v. Barrow, 400 F.3d 109, 116 (2d Cir. 2005)("The underlying
purpose of Rule 410 is to promote plea negotiations by permitting defendants to talk to
prosecutors without sacrificing their ability to defend themselves if no disposition agreement is
reached"); Fed. R. Crim. P. I I, Advisory Committee Notes, 1979 Amendment ("the purpose of
Fed. R. Ev. 410 and Fed. R. Crim. P. 1 l(e)(6) [now Rule 1 l(f)] is to promote the unrestrained
candor which produces effective plea discussions").
Additional illustration of the high degree of confidentially accorded settlement
negotiations is found in Fed. R. Evid. 408, which precludes the introduction into evidence
communications made during settlement negotiations. The purposes underlying Rule 408 are
essentially the same as those underlying Rules ll(f) and 410: "to encourage non-litigious
solutions to disputes." Reichenbach v. Smith, 528 F.2d 1072, 1074 (I Ith Cir. 1976). See, M-,
Stockman v. Oakcrest Dental Center, P. C., 480 F.3d 791, 805 (6th Cir. 2007)("the purpose
underlying Rule 408 ... is the promotion of the public policy favoring the compromise and
settlement of disputes that would otherwise be discouraged with the admission of such
evidence"); Bankcard America, Inc. v. Universal Bancard Systems, Inc., 203 F.3d 477, 483 (7th
Cir. 2000)("Because settlement talks might be chilled if such discussions could later be used as
admissions of liability at trial, the rule's purpose is to encourage settlements"); In re A.H. Robins
Co., Inc., 197 B.R. 568, 572 (E.D.Va. 1994)("Rule 408 aims to foster settlement discussions in
an individual lawsuit, and therefore insulates the particular parties to a settlement discussion
from possible adverse consequences of their frank and open statements"). So crucial is this
policy of confidentiality to the functioning of our federal court system that some courts have held
that communications falling within the parameters of Rule 408 are covered by a settlement
privilege which insulates them not just from admission into evidence but from discovery as well.
See, M, Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 979-983 (6th
Cir. 2003).
Given the powerful and long-standing policy of according confidentiality to settlement
negotiations in both the civil and criminal context, civil plaintiffs should, at a minimum, be
required to demonstrate real and concrete need for the material. They should not be permitted to
rummage through such sensitive documents based on nothing more than a vague and contentless
statement that the materials are "likely to lead to the discovery of other admissible evidence."
Motion to Compel at 12 n.3, which is all that plaintiff offers as to Request No. 10. This is
particularly so given the reality that parties often take positions or offer potential compromise
solutions during plea negotiations which are inconsistent with the litigation strategy they will
pursue if the case goes to trial. As one court has explained in the civil context:
There exists a strong public interest in favor of secrecy of matters discussed by parties
during settlement negotiations .... The ability to negotiate and settle a case without trial
fosters a more efficient, more cost-effective, and significantly less burdened judicial
system. . . . Parties must be able to abandon their adversarial tendencies to some degree.
They must be able to make hypothetical concessions, offer creative quid pro quos, and
generally make statements that would otherwise belie their litigation efforts.
Goodyear Tire, 332 F.3d at 980. The same is no less true in the plea negotiation context. The free
availability in discovery to civil plaintiffs of communications made during the plea negotiation
process has profound potential to chill frank and open communications during that process so
crucial to the functioning of the criminal justice system in any criminal case which has potential
to become a civil or regulatory matter as well. Such defendants will be loath to be fully
forthcoming during plea discussions or commw1ications and indeed, if the potential civil or
regulatory consequences are sufficiently severe, may decline to enter into plea negotiations at all,
if they must fear that their communications will be made available to civil plaintiffs in discovery,
thus entirely defeating both the purpose and spirit of Rules 410 and 11 ( f).
In addition, the communications made during the plea negotiation process contain fact
and opinion attorney work product of both Mr. Epstein's attorneys and government attorneys.
Particularly given the strong public policy in favor of confidentiality of plea/settlement
negotiations, the disclosure of such information should be treated as falling within the selective
waiver provisions of Fed. R. Evid. 502 and not be treated as an open-ended waiver of the
attorney-client and work product privileges.
The correspondence in question contained what would constitute paradigm opinion work
product with the single caveat that the opinions of each counsel, Epstein's and the United States
Attorney's were exchanged with each other pursuant to the overall expectation that they were
safeguarded from disclosure by the policies of confidentiality that protect communications
during settlement and plea negotiations. The requested communications include the views of
Doe v. Epstein 08-CV80119
Page No. 8
Epstein's counsel in the criminal case regarding why a federal prosecution was inappropriate,
why the federal statutes did not fit the alleged offense conduct, why certain of the alleged victims
were not credible. It also includes Epstein's counsel's views on the limits and inapplicability of
certain elements of 18 U.S.C. §2255, one of the principal causes of action in the Jane Doe cases.
This opinion work product should not be disclosed when it was incorporated into heartland plea
negotiations that are accorded protection under the federal rules of evidence. It is the disclosure
of such legal opinions - and not just their admissibility - that should be protected from a civil
discovery request that lacked any statement as to why this information was even necessary to the
fair litigation of the civil cases.
Concomitantly, to the extent that the request is now limited to communications from the
Government to Epstein, see DE 54, pgs 3 and 8, the narrowed request implicate the same
concerns for the opinions, the work product, and the expectation of privacy of the United States
Attorney or Assistant United States Attorney who authored the many letters received by counsel
for Epstein. As such, to the extent that the Court is considering affirming any part of the
Magistrate-Judge's opinion allowing request 10 that would result in the required disclosure of
communications from the Government counsel to Epstein, that notice be provided to the United
States Attorney so they may intervene to protect their opinion work product, assert their rights to
confidentiality under FRE 408 and 410, and assert where appropriate their interests in grand jury
secrecy and in the privacy rights of their witness who in at least one document are identified.
The defendant requests that if the Court were considering allowing the disclosure of any portion
of the communications sent by Epstein to the Government which are within the original request
for production but apparently not plaintiffs latest filing, DE 354, pg 3, the Court first consider
permitting the defendant to provide a privilege log that would identify specific portions of the
correspondence that contains the opinion work product of counsel for Epstein
Here, the information requested involves negotiations with the USAO and its
investigation. If the USAO cannot be compelled to release its investigation(s) and related work product, how can Epstein be compelled to disclose same in violation of his constitutional rights?
He cannot. Rules ll(f), 408, and 410 all counsel strongly against the discoverability of such
documents. The court, is requested to reverse the Magistrate-Judge's order as to paragraph 10.
Alternatively, the Court is requested to permit a privilege log that would be filed by Epstein's
counsel - and if they so desire the Government - particularizing the prejudice to their work
product and to the values otherwise protected by FRE 408 and 410 on a document by document
basis
Epstein also continues to maintain that the requested correspondence is protected under
the Fifth Amendment, as it could furnish a link in the chain of evidence needed to prosecute him
for a crime or provide the federal government with information that provides a lead or clue to
evidence having a tendency to incriminate Epstein. See infra; Hoffman v. United States, 341
U.S. at 486; United States v. Neff, 315 F.2d at 1239; Blau v. United States, 340 U.S. at 159; and
SEC v Leach, 156 F.Supp.2d at 494.
As this court has recognized, the threat of criminal prosecution is real and present as
Epstein remains under the scrutiny of the USAO, which is explained and/or acknowledged in the
Court's Orders (DE 242 and 462). As this Court knows, Epstein entered into a Non-Prosecution
Agreement ("NP A") with the USAO for the Federal Southern District of Florida. However, the
NP A does not provide Epstein with any protection from criminal investigation or prosecution in
other than in the Southern District of Florida. As the court has acknowledged in its orders ( e.g.,
DE 462), complaints in these related matters allege that Epstein both resided in and allegedly
engaged in illegal sexual conduct in districts outside the Southern District of Florida, and that he
allegedly lured economically disadvantaged girls to homes other than in Palm Beach. Thus, the
fact that there exists a NP A does not mean that Epstein is free from a reasonable fear of future
criminal prosecution. In fact, this court acknowledged that "[t]he danger Epstein faces by being
forced to testify in this case is substantial and real, and not merely trifling or imaginary as
required." (DE 242, p. I 0).
As such, in the event Epstein is required to produce information provided to him by the
federal government - or provided by Epstein to the Government - that information could
provide a link in the chain of evidence needed to prosecute Epstein of a crime outside the
protections of the NP A. Given the nature of the allegations, to wit, a scheme and plan of sexual
misconduct, this court should find it entirely reasonable for Epstein to assert his Fifth
Amendment privilege as to request Number I 0, especially since it is broad enough to encompass
information that could violate Epstein's Fifth Amendment Privileges. Hubbell, supra. In
responding to the request, Epstein would be compelled admit that such documents exist, admit
that the documents were in his possession or control, and were authentic. In other words, the
very act of production of the category of documents requested would implicitly communicate
"statements of fact." Hubbell, supra; Hoffman, supra.
Moreover, the production of such information may lead to the identity of witnesses that could
testify against Epstein and those that may have knowledge or are in possession of evidence that
could be used against Epstein in another district. This court has already ruled that Epstein can
properly invoke his Fifth Amendment right to not identify a person who may have a photograph
or physical evidence pertaining to the alleged events. (DE 242). For these reasons, Epstein's
justified concern with regard to answering the above request and the resulting waiver of his Fifth
Amendment Privilege in this regard and/or providing self-incriminating information is
substantial, real and not merely imaginative.
Third Party Privacy Rights And Judge Jeffrey's Colbath's Order
The Magistrate's Order does not consider the privacy rights of other alleged victims. As
this Court knows full well, attached to the NP A is a list which delineates alleged victims. Once
the NP A was made public, Judge Colbath, with the agreement of the Palm Beach Post, Brad
Edwards, Esq. and Spencer Kuvin, Esq. agreed that the "list" would remain private. As such,
Request for Production Number IO seeks information that may violate others third-party privacy
rights in that certain names may be mentioned in correspondence, including those on the "list."
As noted in Eisenstadt v. Baird, 405 U.S. 438,454, 92 S.Ct. 1029, 1038, at fn. 10 (1972):
In Stanley, 394 U.S., at 564, 89 S.Ct., at 1247, the Court stated:'(A)lso
fundamental is the right to be free, except in very limited circumstances, from
unwanted governmental intrusions into one's privacy." The makers of our
Constitution undertook to secure conditions favorable to the pursuit of happiness.
They recognized the significance of man's spiritual nature, of his feelings and of
his intellect. They knew that only a part of the pain, pleasure and satisfactions of
life are to be found in material things. They sought to protect Americans in their
beliefs, their thoughts, their emotions, and their sensations. They conferred, as
against the Government, the right to be let alone-the most comprehensive of rights
and the right most valued by civilized man.' [Citations omitted].
The fundamental right of privacy is not only guaranteed under by the Fourteenth
Amendment of the United States Constitution, but also under the Constitution of the State of
Florida, Art. I, Sect. 23. As summarized by the Florida Supreme Court in Shaktman v. State, 553
So.2d 148, I 50-51 (Fla. 1989):
The right of privacy, assured to Florida's citizens, demands that individuals be
free from uninvited observation of or interference in those aspects of their lives
which fall within the ambit of this zone of privacy unless the intrusion is
warranted by the necessity of a compelling state interest. In an opinion which
predated the adoption of section 23, the First District aptly characterized the
nature of this right.
A fundamental aspect of personhood's integrity is the power to control what we
shall reveal about our intimate selves, to whom, and for what purpose.
Bryon, Harless, Schaffer, Reid & Assocs., Inc. v. State ex rel, Schellenberg. 360
So.2d 83, 92 (Fla. 1st DCA 1978), quashed and remanded on other grounds, 379
So.2d 633 (Fla.1980). Because this power is exercised in varying degrees by
differing individuals, the parameters of an individual's privacy can be dictated
only by that individual. The central concern is the inviolability of one's own
thought, person, and personal action. The inviolability of that right assures its
preeminence over "majoritarian sentiment" and thus cannot be universally defined
by consensus.
(Emphasis added).
Clearly, the nature of the question would require Epstein to produce information that may
identify third parties (including alleged victims), which would necessarily thwart such
individuals' rights to assert their constitutional right of privacy as guaranteed under the United
States and Florida Constitutions. See generally Eisenstadt v. Baird, supra at 454-455 (the right
encompasses privacy in one's sexual matters and is not limited to the marital relationship). The
Magistrate's Order did not address this issue.
Federal law provides crime victims with rights similar to those afforded by the Florida
constitution which includes, but is not limited to, "the right to reasonable, accurate, and timely
notice of any pubic court ... proceeding involving the crime .... ," "the right not to be excluded
from any public court proceeding .... ," and "the right to be heard." 15 Fla. Jur.2d Crim.Proc.
§ I 839; Fla. Stat. 960.0021. Based upon the foregoing, any alleged victim that may be identified
in any of the requested information must first be notified, which means that this court must, at
the very least, conduct an in camera inspection of any and all information to determine which
alleged victim must be placed on notice that their identity may be revealed or redact their names
in camera. See also Fla. Stat. §794.03, §794.024 and §794.026. The right to privacy
encompasses at least two different kinds of interests, the individual interests of disclosing
personal matters and the interest in independence in making certain kinds of important decisions.
Favalora v. Sidaway, 966 So.2d 895 (Fla. 4th DCA 2008).
Accordingly, based on the facts and circumstances of this case, and under applicable law,
Defendant's assertion of the protections afforded under the 5th, 6th, and 14th Amendments of the
United States Constitution are required to be upheld. In addition, this Court must address the
privacy rights of others as outlined above.
b. Request Number 12
Request No. 12: Personal tax returns for all years from 2002 through the
present.
Response to Request Numbers : Defendant is asserting specific legal objections
to the production request as well as his U.S. constitutional privileges. I intend to
produce all relevant documents regarding this lawsuit, however, my attorneys
have counseled me that at the present time I cannot select, authenticate, and
produce documents relevant to this lawsuit without waiving my Fifth Amendment
constitutional rights and I must accept this advice or risk losing my Sixth
Amendment right to effective representation. Accordingly, I assert my federal
constitutional rights under the Fifth, Sixth, and Fourteenth Amendments as
guaranteed by the United States Constitution. Drawing an adverse inference
under these circumstances would unconstitutionally burden my exercise of my
constitutional rights, would be umeasonable, and would therefore violate the
Constitution; overly broad.
As set forth in more detail in DE 282 and 283, which were provided to the court in
camera, Epstein cannot provide answers/responses to questions relating to his financial history
and condition without waiving his Fifth, Sixth, and Fourteenth Amendments as guaranteed by
the United States Constitution, which includes his tax returns. Asking for Epstein's personal tax
returns is financial in nature and it is confidential, proprietary and seeks information much of
which is neither relevant to the subject matter of the pending action nor does it appear to be
reasonably calculated to lead to the discovery of admissible evidence. Importantly, the
Magistrate did not make a ruling on relevancy as to the personal tax returns, and the Plaintiff has
not met the burden of establishing a "compelling need" for the tax returns.
Producing the specified information, in full, would result in testimonial disclosures that
would communicate statements of fact and would require Epstein to produce the returns and
thereby "stipulate" to their genuiness, their existence, his control of the records, and their
authenticity as his executed tax returns even though his possession of such records are by no
means a foregone conclusion. Again, the information sought relates to potential federal claims
of violations. See DE 282 and 283, in camera. Production would therefore constitute a
testimonial admission of the genuineness, the existence, and Epstein's control of such records,
and thus presents a real and substantial danger of self-incrimination in this case, in other related
cases and as well in areas that could result in criminal prosecution. See generally Hoffman v
United States, 341 U.S. at 486; United States v. Hubbell, 530 U.S. at 36 and United States v.
Apfelbaum, 445 U.S. at 128.
The Court's order seems to hone in on the "required records" exception for the
proposition that, as a matter of law, Epstein's personal tax returns must be produced because
they are allegedly a mandatory part of a civil regulatory scheme and have assumed some public
aspect. (DE 462, p.12) However, "required records" are ordinarily records collected by highly
regulated business (e.g., physicians) wherein the records themselves have assumed public aspects
which render them analogous to public documents. See In re Dr. John Doe, 97 F.R.D. 640, 641-
643 (S.D.N.Y. 1982). Usually, these documents are known to more than the filer and the agency
in which the document(s) were filed (i.e., known to other persons of the general public). Id.
Even though the IRS may have certain returns, they remain confidential under 26 U.S.C. §6103
from any disclosures and are therefore different than a regulated/public record that can be
accessed by the public. In Trudeau v. New York State Consumer Protection Bd., 237 F.R.D. 325
(N.D.N.Y. 2006), the court maintained that "[r]outine discovery of tax returns is not the rule but
rather the exception." Id at 331. The Court went on to note that [f]or nearly the past thirty-five
years, tax returns have been considered 'confidential,' pursuant to 26 U.S.C. §6103." Id. Because
of the principle of confidentiality, it further noted, "courts in the Second Circuit have found
personal financial information to be presumptively confidential or cloaked with a qualified
immunity," and must, therefore, "balance the countervailing policies of liberal discovery set
forth in the Federal Rules of Civil procedure against maintaining the confidentiality of such
documents." Id.
To achieve that balance, courts in the Second Circuit have developed a "more stringent"
standard than that set forth in the rules. To order disclosure of tax returns, a court must find that
"the requested tax information is relevant to the subject matter of the action" and that "there is a
compelling need for this information because the information contained therein is not otherwise
readily available." Id. The Magistrate's Order makes no such finding in the instant matter. In
fact, the burden of showing compelling need is on the party seeking discovery, but once a
compelling need has been found, the party whose tax return information has been requested has
the burden to "provide alternative sources for this sensitive information. Id. If the requested
information is available from alternate sources, disclosure should not be compelled. Potential
alternate sources to which the court pointed were gathering the information through deposition or
disclosure in an affidavit by the requested party of net worth, wealth, and income. Id. at 331-32.
See Barton v. Cascade Regional Blood Services, 2007 WL 2288035 (W.D.Wash. 2007)("Tax
returns are confidential communications between the taxpayer and the government [ citing
§6103] and although not privileged from discovery there is a recognized policy against
unnecessary public disclosure ..... The Court finds no compelling need which overcomes this
recognized policy"). Courts have broadly construed these provisions to embody a general
federal policy against indiscriminate disclosure of tax returns from any source. Federal Sav. &
Loan Ins. Corp. v. Krueger, 55 F.R.D. 514-15 (N.D. Ill. 1972)("it is the opinion of this court that
[§6103] reflect[s] a valid public policy against disclosure of income tax returns. This policy is
grounded in the interest of the government in full disclosure of all the taxpayer's income which
thereby maximizes revenue. To indiscriminately compel a taxpayer to disclose this information
merely because he has become a party to a lawsuit would undermine this policy"); see also
Premium Service Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. l 975)(would
have been appropriate for district court to quash subpoena for tax returns based on the "primacy"
of the "public policy against unnecessary disclosure [ of tax returns] arises from the need, if tax
laws are to function properly, to encourage taxpayers to file complete and accurate returns").
In Pendlebury v. Starbucks Coffee Co., 2005 WL 2105024 at *2 (S.D. Fla. 2005), the
court agreed that "[i]ncome tax returns are highly sensitive documents" and that courts should be
reluctant to order disclosure during discovery. Citing, Natural Gas Pipeline Co. of Am. v.
Energy Gathering, Inc., 2 F.3d 1397, 1411 (5th Cir. 1993); DeMasi v. Weiss, Inc., 669 F.2d 114,
119-20 (3d Cir. 1982)(noting existence of public policy against disclosure of tax returns);
Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975). The court
in Pendlebury agreed that parties seeking the production of tax returns must demonstrate ( 1)
relevance of the tax returns to the subject matter of the dispute and (2) a compelling need for the
tax returns exists because the information contained therein is not otherwise available. Id. at *2;
see also Dunkin Donuts, Inc. v. Mary's Donuts, Inc., 2001 WL 34079319 (S.D. Fla. 2001);
Cooper v. Hallgarten & Co., 34 F.R.D. 482, 483-84 (S.D.N.Y. 1964). Thus, before the Court can
order production of the requested returns in this matter, the Plaintiff must satisfy the "relevance"
and "compelling need" standards. The Magistrate's Order fails to address the "relevancy"
standard and Plaintiff fails to provide same with supporting argument and case law, and the
Plaintiff fails to delineate any "compelling need" or availability of networth from other sources
(e.g., a stipulation as to net worth, which is certainly an alternative means). To the extent that
the Court determines that the tax returns are relevant and that there is a compelling need for at
least their disclosure of Epstein's wealth for punitive damage purposes, Epstein would agree to
stipulate, through his attorneys, that he has a net worth of over $50,000,000. Such a stipulation
more than satisfies any necessity for the disclosure of the tax returns or any additional net worth
information.
This court already ruled in DE 462 that Epstein is not required to produce his financial
history information to the extent same seeks to identify Epstein's assets, where such assets are
located and whether such assets have been transferred. Id. Moreover, the names and addresses
of his accounts, financial planners and money managers were also sustained pursuant to the Fifth
Amendment. Id. Therefore, to the extent this court orders production of tax returns and to the
extent Epstein's personal tax returns contain such information, same should be redacted and
subject to heightened confidentiality. However, this can only be done subsequent to an in
camera hearing wherein this court can make a ruling on relevancy, production, redaction and
confidentiality; but only after the Plaintiff shows a compelling need.
Furthermore, Epstein's complicated business transactions have no relevancy to this
lawsuit and, therefore, evidence of same should not be produced. The Fifth Amendment is a safe
harbor for all citizens, including those who are innocent of any underlying offense. This request,
if answered, may result in compelled production and/or testimonial communications from
Epstein regarding his financial status and history and would require him to waive his right to
decline to respond to other inquiries related to the same subject matter. Responding to this and
other related inquiries would have the potential to provide a link in a chain of information and/or
leads to other evidence or witnesses that would have the specific risk of furthering an
investigation against him and therefore are protected from compulsion by Epstein's
constitutional privilege.
Accordingly, any compelled testimony that provides a "lead or clue to a source of
evidence of such [a] crime" is protected by Fifth Amendment. SEC v Leach, 156 F.Supp.2d at
494. Questions seeking "testimony" regarding names of witnesses, leads to phone or travel
records, or financial records that would provide leads to tax or money laundering or unlicensed
money transmittal investigations are protected. See also Hoffman v United States, 341 U.S. 479,
486 (1951 )("the right against self-incrimination may be invoked if the answer would furnish a
link in the chain of evidence needed to prosecute for a crime").
c. Request Number 13
Request No. 13: A photocopy of your passport, including any supplemental
pages reflecting travel to locations outside the 50 United States between 2002 and
2008, including any documents or records regarding plane tickets, hotel receipts,
or transportation arrangements.
Response: Defendant asserts his U.S. constitutional privileges. I intend to
produce all relevant documents regarding this lawsuit, however, my attorneys
have counseled me that at the present time I cannot select, authenticate, and
produce documents relevant to this lawsuit without risking waiver of my Fifth
Amendment rights and I must accept this advice or risk losing my Sixth
Amendment right to effective representation. Accordingly, I assert my federal
constitutional rights under the Fifth, Sixth, and Fourteenth Amendments as
guaranteed by the United States Constitution. Drawing an adverse inference
under these circumstances would unconstitutionally burden my exercise of my
constitutional rights, would be unreasonable, and would therefore violate the
Constitution. In addition to and without waiving his constitutional protections
and privileges, the scope of information is so overbroad that it seeks information
that is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence; compiling such information over a six year period would be
unduly burdensome and time consuming.
As to Request Number 13, Defendant provided this court with sufficient argument at DE
282 and DE 283 detailing why the production of information showing Epstein's whereabouts
could provide a link in the chain of evidence regarding: (a) Epstein's air travel within the United
States and Foreign Territories; (b) Epstein's communications with others relating to or referring
to females coming into the United States from other countries; and (c) Epstein's personal
calendars and schedules. Given that the essential proof of an allegation of 18 U.S.C. 2423(b)
would include travel records, schedules regarding trips and locations, flight records, calendars,
and transportation arrangements, the court found that Epstein had made a more particularized
showing because producing such information "could reveal the availability to him and/or use by
him of interstate facilities and thus would constitute a link in the chain of evidence that could
potentially expose [Epstein] to the dangers of self incrimination." (DE 293, p.6) See infra,
regarding private aircraft.
The Magistrate's Order (DE 462) provides that Epstein's Fifth Amendment privilege
does not extend to his passport because its existence is known to the government or is a
"foregone conclusion." Id. at p. 11. First, the magistrate's order presupposes that Epstein has all
his passports from 2002 up through to the current date and that the government has an exact copy
of same. Second, the Order presupposes that U.S. Customs and Border Patrol ("CPB") keeps a
record and/or has maintained records of Epstein's travel and whereabouts from 2002 up through
to the current date. Third, assuming Epstein traveled internationally, the Order presupposes that
the CPB has records of all of Epstein's destinations and that other countries have shared that
information with the CBP.
For instance, CBP now offers "Global Entry" to enter the United States by kiosk.
However, it is unclear whether the Global Entry kiosk records and copies the pages of a
traveler's destinations outside of the United States, or does it simply record exit from and entry
back into the United States?5 Moreover, it is unclear whether CBP maintains the Sample
Customs Declaration Form for any period of time, which form sets out (i.e., if filled out) the
countries visited by a traveler.6 This Court cannot Compel Epstein to produce information in
violation of his Fifth Amendment by simply stating that Epstein's passport is "known to the
government" or is a "forgone conclusion." In fact, from the websites listed herein, any CBP
documents or forms filled out by a traveler take on a complete different form when compared to
an original passport, which is initially issued with blank pages. This Court would be hard pressed to find that the CBP has an exact copy of every page of every traveler's passport.
Obviously, this would create more document management than CBP anticipates on its website.
Moreover, pursuant to 19 C.F.R. § 122.2, pilots of private aircraft are required to
electronically transmit passenger and crew manifest information for all flights arriving into
and/or departing out of the United States. As this court knows, Mr. Edwards has conducted
extensive discovery, has questioned individuals as to whether Epstein owns private aircraft and
has obtained certain flight manifests. Arguably, if such a procedure were followed in Epstein's
case pursuant to 19 C.F.R. §122.2, then Epstein's passport would arguably take on a
substantially different form when compared to the information maintained by the CBP (i.e.,
information that was electronically transferred). Under that circumstance, CBP would not have
an exact copy of Epstein's passports. Accordingly, the assumptions made in the Magistrate's
Order have serious Fifth Amendment implications in that the exact information sought is not
"known to the government" and is not a "forgone conclusion" in that the government is not
likely to have an exact copy of Epstein's passports.
Again, Plaintiffs request for Epstein's passport "reflecting travel to locations outside the
50 United States between 2002 and 2008, is no different from the requests this Court has already
ruled upon and sustained Epstein's Fifth Amendment privilege in response thereto. (DE 292).
In summary, this court reasoned that:
"[i]n this and the other civil actions, Plaintiffs allege that Epstein violated certain
federal and state criminal statutes in an attempt to make claims against Epstein
ranging from sexual battery to intentional infliction of emotional distress. The
lynchpin for the exercise of federal criminal jurisdiction under 18 U.S.C.
§2422(b ), which figures in some of the complaints filed, is 'the use of any facility
or means of interstate or foreign commerce' and the analogous essential element
of 18 U.S.C. §2423(b), which also figures in some of the Complaints, is 'travel[s]
in interstate commerce or travels into the United States or ... travels in foreign
commerce.' Accordingly, requiring Epstein to provide responses. . . would in
essence be compelling him to provide assertions of fact, thereby admitting that
such documents existed and further admitting that the documents in his
possession or control were authentic.
As such, if you believe Plaintiffs footnote 4 at (DE 210), responding to this request
could very well implicate Epstein's Fifth Amendment privilege. The allegations of Epstein's use
of interstate commerce and travel and any compelled production is clearly a violation of
Epstein's Fifth Amendment rights.7 Based upon the arguments set forth in DE 283 (which is
incorporated herein), this Court sustained Epstein's Fifth Amendment Privilege. That same
ruling should apply here. (DE 293). If not, this court may be requiring Epstein to produce a log
of his travels, which this Court already sustained under the Fifth Amendment.
Plaintiff must also show that the requested information is relevant to the disputed issues of
the underlying action. See Yonng Circle Garage, LLC. v. Koppel, 916 So. 2d 22 (Fla. 4th DCA
2005); see also Eguitable Life Assurance Society of the United States v. Daisy Worldwide, Inc.,
702 So. 2d 263 (Fla. 3d DCA 1997). Plaintiff has failed to meet this burden and, in doing so, has
also failed to show any substantial need for the documents.
Wherefore, Epstein respectfully requests that this Court issue and order:
a. finding that the danger Epstein faces by being forced to testify in this case
relative to the above requests is substantial and real, and not merely trifling or imaginary;
b. sustaining Epstein's Fifth Amendment Privilege as it relates to the above
requests and denying Plaintiffs Motion in that regard;
c. reversing and/or revising the Magistrate's Order (DE 462) relative to
Request Numbers 10, 12 and 13 and entering an amended order sustaining Epstein's
objections to the Magistrate's Order as to those specific requests and not requiring him to
produce information relative to same; and/or
d. remanding this appeal to the Magistrate-Judge for her reconsideration of
these portions of her order;
e. alternatively, if this court rules that any of the information requested
herein is relavent, it shall only do so after an in camera hearing and only after this court
ensures that each and every documents produced is the subject of a heightened confidentality order;
f. for such other and further relief as this Court deems just and proper.
Respectfully submitted,
By: MICHAEL J. PIKE, ESQ.
Florida Bar #617296
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 26th day of February, 2010.
By:
ROBERT D. 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)
Certificate of Service
Jane Doe No. 2 v. Jeffrey Epstein
Case No. 08-CV-80119-MARRA/JOHNSON
Stuart S. Mermelstein, Esq.
Adam D. Horowitz, Esq.
Mermelstein & Horowitz, P.A.
18205 Biscayne Boulevard
Suite 2218
Miami, FL 3 3160
305-931-2200
Fax: 305-931-0877
ssm@sexabuseattomey.com
Farmer, Jaffe, Weissing, Edwards, Fistos &
Lehrman, PL
425 N. Andrews Avenue
Suite 2
Fort Lauderdale, FL 33301
Phone:954-524-2820
Fax: 954-524-2822
brad@pathtoiustice.com
Counsel for Plaintiff in Related Case No. 08-
ahorowitz@sexabuseattorney.com
Counsel for Plaintiffs
In related Cases Nos. 08-80069, 08-80119, 08-
80232, 08-80380, 08-80381, 08-80993, 08-
80994
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 £stein
80893
Paul G. Cassell, Esq.
Pro Hae Vice
332 South 1400 E, Room 101
Salt Lake City, UT 84112
801-585-5202
801-585-6833 Fax
cassellp@law.utah.edu
Co-counsel for Plaintiff Jane Doe
Isidro M. Garcia, Esq.
Garcia Law Firm, P.A.
224 Datura Street, Suite 900
West Palm Beach, FL 33401
561-832-7732
561-832-7137 F
isidrogarcia@bellsouth.net
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
305 358-2800
Fax: 305 358-2382
rjosefsberg@J,podhurst.com
kezell@podhurst.com
Counsel/or Plaintiffs in Related Case
Case 9:08-cv-80119-KAM Document 477-1 Entered on FLSD Docket 02/26/2010 Page 1 of
13
Case 9:10-cv-81111-WPD Document 17-9 Entered on FLSD Docket 11/11/2010 Page 25 of 37
JANE DOE,
Plaintiff
vs.
JEFFREY EPSTEIN,
Defendant
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 08-CV-80893-MARRA/JOHNSON
PLAINTIFF'S FIRST REQUEST FOR PRODUCTION TO DEFENDANT
COMES NOW the Plaintiff, JANE DOE, by and through her undersigned counsel,
pursuant to Fed.R.Civ.P. 34 and S.D. Fla. 26.10., and requests the Defendant, Jeffrey Epstein, to
produce the original or best copy of the items listed hereinbelow, at the offices of the Plaintiff's
undersigned counsel, for inspection and/or copying within thirty (30) days of service.
PRELIMINARY STA 'fEMENT
1. These requests for production are deemed continuing. Pursuant to Rule 26( e) of
the Federal Rules of Civil Procedure and applicable law, if any information sought by said
requests for production is not learned until after they are answered, or if any answers for any
reason should later become incorrect, there shall be a continuing duty on the party answering
said requests to supplement or change answers previously submitted.
DEFINITIONS AND INSTRUCTIONS
I. Communication. The term "communication" means the transmittal of information (in
the form of facts, ideas, inquiries or otherwise).
2. Document. The term "document" is defined to be synonymous in meaning and equal in
scope to the usage of this term in Federal Rule of Civil Procedure 34(a), including, without
limitation, electronic or computerized data compilations. A draft or non-identical copy is a
separate document within the meaning of this term.
3. Identify (with respect to person). When referring to a person, "to identify" means to
give, to the extent known, the person's full name, present or last known address, and when
referring to a natural person, additionally, the present or last known place of employment. Once
a person has been identified in accordance with this subparagraph, only the name of the person
need be listed in response to subsequent discovery requesting the identification of that person.
4. Identify (with respect to documents). When referring to documents, "to identify"
means to give, to the extent known, the (i) type of documents; (ii) general subject matter; (iii)
date of the document; and (iv) author(s), addressee(s) and recipient(s).
5. Parties. The terms "plaintiff" and "defendant" as. well as a party's full or abbreviated
name or a pronoun referring to a party means the party and, where applicable, its officers,
directors, employees, partners, corporate parent, subsidiaries or affiliates. This definition is not
intended to impose a discovery obligation on any person who is not a party to the litigation.
6. Person. The term "person" is defined as any natural person or any business, legal or
governmental entity or association.
7. Concerning. The term "concerning" means relating to, referring to, describing,
evidencing or constituting.
8. All/Each. The terms "all" and "each" shall be construed as all and each.
9. And/Or. The connectives "and'' and "or" shall be construed either disjunctively or
conjunctively as necessary to bring within the scope of the discovery request all responses that
might otherwise be construed to be outside of its scope.
10. Number. The use of the singular form of any word includes the plural and vice versa.
11. Refer/Relate to. "Refer" or "relate to" means to make a statement about, discuss,
describe, reflect, constitute, identify, deal with, consist of, establish, comprise, list, evidence,
substantiate or in any way pertain, in whole to in part, to the subject.
12. As used herein the singular shall include the plural, the plural shall include the singular,
and the masculine, feminine and neuter shall include each of the other genders.
DOCUMENTS REQUESTED
1. Copies of all telephone records in your or your attorneys' possession from 2002 -
2005 that in any way relate to you (including all phone Jines owned by you or that were used to
contact girls for the purposes of scheduling massages for you).
2. All massage appointment books, diaries, computer calendars or scheduling
entries, scheduling books or any other wdting or correspondence that contains the names of any
of the girls that were called, contacted, scheduled, or who otherwise went to your home located
at 358 El Brillo Way, Palm Beach, Florida, for the purpose of giving you a massage.
3. Any and all documentation in your possession that contains Plaintiffs name or
that refers to Plaintiff, directly or indirectly, (includes emails, letters, message pads, diaries,
appointment books, computer print outs).
4. Any and all photos, videos, downloaded digital prints or any other visual
depiction of Plaintiff, or of any other known or suspected minor females introduced to you,
directly or indirectly, by Plaintiff.
5. Photos of the inside of your home located at 358 El Brillo Way, Palm Beach,
Florida, that depict the room(s) where the massages took place (including massage table).
6. Any and all documentation of cancelled checks or evidence of payment to
Plaintiff of any kind and for any reason whatsoever.
7. All discovery information obtained by you or your attorneys as a result of the
exchange of discovery in the State criminal case against you or the Federal investigation against
you.
8. All financial documents evidencing asset transfers from 2005 to the present for
you personally or any company or corporation owned by you.
9. Any documents or other evidentiary materials provided to local, state, or federal
law enforcement investigators or local, state or federal prosecutors investigating your sexual
activities with minors.
10. All correspondence between you or your attorneys and state or federal law
enforcement or • prosecutors (includes, but is not limited to, letters to and from the State
Attorney's office or any agents thereof).
11. Any and all documents reflecting your current net worth.
12. Personal tax returns for all years from 2002 through the present.
13. A photocopy of your passport, including any supplemental pages reflecting travel
to locations outside the 50 United States between 2002 and 2008, including any documents or
records regarding plane tickets, hotel receipts, or transportation arrangements.
14. A sworn statement of your net worth (including a detailed financial statement
depicting all current assets and liabilities).
15. All financial statements or affidavits produced by you for any reason, to any
person, company, entity or corporation since 2005.
16. All medical records of Defendant Epstein from Dr. Stephan Alexander.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been provided via United States mail to the following addressees, this 2.3day of March, 2009.
Robert D. Critton, Jr., Esquire
Michael J. Pike, Esquire
Burman, Critton, Luttier & Coleman, LLP
515 North Flagler Drive
Suite 400
West Palm Beach, Florida 33401
rcrit@bclclaw.com
mpike@bclclaw.com
Jack Alan Goldberger, Esquire
Atterbury, Goldberger & Weiss, P.A.
250 Australian A venue South
Suite 1400
West Palm Beach, Florida 33401
jagesq@bellsouth.net
Michael R. Tein, Esquire
Lewis Tein, P.L.
3059 Grand Avenue
Suite 340
Coconut Grove, Florida 33133
tein@lewistein.com
By:
Respectfully Submitted,
THE LAW OFFICE OF BRAD EDWARDS &
ASSOCIATES, LLC
Brad Edwards, Esquire
Attorney for Plaintiff
Florida Bar No. 542075
2028 Harrison Street
Suite 202
Hollywood, Florida 33020
Telephone: 954-414-8033
Facsimile: 954-924-1530
E-Mail: be@bradedwardslaw.com
Paul G. Cassell
Attorney for Plaintiff
Pro Hae Vice
332 S. 1400 E.
Salt Lake City, UT 84112
Telephone: 801-585-5202
Facsimile: 801-585-6833
E-Mail: cassellp@law.utah.edu
JANE DOE,
V.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 08-CIV- 80893 - MARRA/JOHNSON
Plaintiff,
JEFFREY EPSTEIN,
Defendant.
-------------~'
DEFENDANT'S RESPONSE & OBJECTIONS TO PLAINTIFF'S
FIRST REQUEST FOR PRODUCTION (dated 03/23/09)
Defendant, JEFFREY EPSTEIN, ('EPSTEIN"), by and through his undersigned
attorneys, pursuant to Fed.R.Civ.P., 34, and S.D. Fla. 26.1.G., serves his response to
Plaintiff JANE DOE's First Request For Production, dated March 23, 2009.
Request No. 1: Copies of all telephone records in your or your attorneys'
possession from 2002 through 2005 that in any way relate to you (including all phone
lines owned by you or that were used to contact girls for the purposes of scheduling
massages for you.)
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution.
Request No. 2: All massage appointment books, diaries, computer calendars or
scheduling entities, scheduling books or any other writing or correspondence that
contains the names of any of the girls that were called, contacted, scheduled or who
otherwise went to your home located at 358 El Brillo Way, Palm Beach, Florida, for the
purpose of giving you a massage.
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution.
Request No. 3: Any and all documentation in your possession that contains
Plaintiff's name or that refers to Plaintiff, directly or indirectly, (includes e-mails, letters,
message pads, diaries, appointment books, computer print outs).
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution.
Request No. 4: Any and all photos, videos, downloaded digital prints or any other
visual depiction of Plaintiff, or of any other known or suspected minor females
introduced to you, directly or indirectly, by Plaintiff.
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution.
Request No. 5: Photos of the inside of your home located at 358 El Brillo Way,
Palm Beach, Florida, that depict the room(s) where the massages took place (including
massage table).
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution.
Request No. 6: Any and all documentation of cancelled checks or evidence of
payment to Plaintiff of any kind and for any reason whatsoever.
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution.
Request No. 7: All discovery information obtained by you or your attorneys as a
result of the exchange of discovery in the State criminal case against you or the Federal
investigation against you.
Response: Defendant is asserting specific legal objections to the production request
as well as his U.S. constitutional privileges. I intend to produce all relevant documents
regarding this lawsuit, however, my attorneys have counseled me that at the present
time I cannot select, authenticate, and produce documents relevant to this lawsuit and I
must accept this advice or risk losing my Sixth Amendment right to effective
representation. Accordingly, I assert my federal constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments as guaranteed by the United States Constitution.
Drawing an adverse inference under these circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and would
therefore violate the Constitution. In addition to and without waiving his constitutional
privileges, the information sought is privileged and confidential, and inadmissible
pursuant to the terms of the deferred prosecution agreement, Fed. Rule of Evidence
410 and 408, and §90.410, Fla. Stat. Further, the request may include information
subject to work product or an attorney-client privilege.
Request No. 8: All financial documents evidencing asset transfers from 2005 to the
present for you personally or any company or corporation owned by you.
Response: Defendant is asserting specific legal objections to the production request
as well as his U.S. constitutional privileges. I intend to produce all relevant documents
regarding this lawsuit, however, my attorneys have counseled me that at the present
time I cannot select, authenticate, and produce documents relevant to this lawsuit and I
must accept this advice or risk losing my Sixth Amendment right to effective
representation. Accordingly, I assert my federal constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments as guaranteed by the United States Constitution.
Drawing an adverse inference under these circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and would
therefore violate the Constitution.
Request No. 9: Any documents or other evidentiary materials provided to local,
state, or federal law enforcement investigators or local, state or federal prosecutors
investigating your sexual activities with minors.
Response: Defendant is asserting specific legal objections to the production request
as well as his U.S. constitutional privileges. I intend to produce all relevant documents
regarding this lawsuit, however, my attorneys have counseled me that at the present
time I cannot select, authenticate, and produce documents relevant to this lawsuit and I
must accept this advice or risk losing my Sixth Amendment right to effective
representation. Accordingly, I assert my federal constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments as guaranteed by the United States Constitution.
Drawing an adverse inference under these circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and would
therefore violate the Constitution. In addition to and without waiving his constitutional
privileges, the information sought is privileged and confidential, and inadmissible
pursuant to the terms of the deferred prosecution agreement, Fed. Rule of Evidence
410 and 408, and §90.410, Fla. Stat. Further, the request may include information
subject to work product or an attorney-client privilege.
Request No. 10: All correspondence between you and your attorneys and state or
federal law enforcement or prosecutors (includes, but not limited to, letters to and from
the State Attorney's office or any agents thereof).
Response: Defendant is asserting specific legal objections to the production request
as well as his U.S. constitutional privileges. I intend to produce all relevant documents
regarding this lawsuit, however, my attorneys have counseled me that at the present
time I cannot select, authenticate, and produce documents relevant to this lawsuit and I
must accept this advice or risk losing my Sixth Amendment right to effective
representation. Accordingly, I assert my federal constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments as guaranteed by the United States Constitution.
Drawing an adverse inference under these circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and would
therefore violate the Constitution. In addition to and without waiving his constitutional
privileges, the information sought is privileged and confidential, and inadmissible
pursuant to the terms of the deferred prosecution agreement, Fed. Rule of Evidence
410 and 408, and §90.410, Fla. Stat. Further, the request may include information
subject to work product or an attorney-client privilege.
Request No. 11: Any and all documents reflecting your current net worth.
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution.
Request No. 12: Personal tax returns for all years from 2002 through the present.
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution; overly broad.
Request No. 13: A photocopy of your passport, including any supplemental pages
reflecting travel to locations outside the 50 United States between 2020 and 2008,
including any documents or records regarding plane tickets, hotel receipts, or
transportation arrangements.
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution. In addition to and without
waiving his constitutional protections and privileges, the scope of information is so
overbroad that it seeks information that is neither relevant nor reasonably calculated to
lead to the discovery of admissible evidence; compiling such information over a six year
period would be unduly burdensome and time consuming.
Request No. 14: A sworn statement of your net worth (including a detailed financial
statement depicting all current assets and liabilities).
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution.
Request No. 15: All financial statements or affidavits produced by you for any
reason, to any person, company, entity or corporation since 2005.
Response: Defendant asserts his U.S. constitutional privileges. I intend to produce all
relevant documents regarding this lawsuit, however, my attorneys have counseled me
that at the present time I cannot select, authenticate, and produce documents relevant
to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to
effective representation. Accordingly, I assert my federal constitutional rights under the
Fifth, Sixth, and Fourteenth Amendments as guaranteed by the United States
Constitution. Drawing an adverse inference under these circumstances would
unconstitutionally burden my exercise of my constitutional rights, would be
unreasonable, and would therefore violate the Constitution; overly broad.
Request No. 16: All medical records of Defendant Epstein from Dr. Stephan
Alexander.
Response: Defendant is asserting specific legal objections to the production request
as well as his U.S. constitutional privileges. I intend to produce all relevant documents
regarding this lawsuit, however, my attorneys have counseled me that at the present
time I cannot select, authenticate, and produce documents relevant to this lawsuit and I
must accept this advice or risk losing my Sixth Amendment right to effective
representation. Accordingly, I assert my federal constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments as guaranteed by the United States Constitution.
Drawing an adverse inference under these circumstances would unconstitutionally
burden my exercise of my constitutional rights, would be unreasonable, and would
therefore violate the Constitution.
Certificate of Service
WE HEREBY CERTIFY that a true copy of t~regoing has been sent via U.S.
Mail and facsimile to the following addressees this clay of May, 2009.
Brad Edwards, Esq.
Rothstein Rosenfeldt Adler
401 East Las Olas Boulevard
Suite 1650
Fort Lauderdale, FL 33301
Phone:954-522-3456
Fax: 954-527-8663
bedwards@rra-law.com
Counsel for Plaintiff
Paul G. Cassell, Esq.
Pro Hae Vice
332 South 1400 E, Room 101
Salt Lake City, UT 84112
801-585-5202
801-585-6833 Fax
cassellp@law.utah.edu
Co-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
561-835-8691 Fax
jagesg@bellsouth.net
Co-Counsel for Defendant Jeffrey Epstein
Respectfully'"~
By:----+-------
ROBERT D. RITTON, JR., ESQ.
Florida Bar No. 224162
rcrit@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)