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