UNITED DISTRICT COURT-4.8 SOUTHE-3.1RN DISTRICT OF FLORIDA JANE CAS-3.5E NO 93-CIV-MARRA/JOHNSON Plaintiff Vs JEFFREY EPST-4.5EIN et al Defendant Related Cases PLAINTIFF-4.9 JANE TO DEFE-3.7NDANT?S MOTION FOR RECONSIDERATION AND/OR REQUEST-5 FOR RULE REVIE-3.8W-2 AND AP-3.8PEAL Plaintiff Jane Doe hereby files this response to defendant Jeffrey Epstein?s Motion for Recons-5.4ider-7.4ation and/or Request for Ru le Review and Appea Portions of Magistrate?s Order dkt The motion hould be denied in its entirety As the magistrate judge c-5o1.2rrectly found defendant Epstein has no v-5a1.2lid Fifth Amendment objection to refusing to turn over materials and information already in the Government?s possession Moreover the other objections-4.7 hat he raises were never presented to the magistrate judge and in any event are without merit PROCEDURAL BACKGROUND July J-4.9ane Doe filed a st raightforward motion for production of various materials including doc-5.4uments provi ded to Epstein as part of discovery from state and federal pros-5.4ecutors in criminal cases against him his recent tax returns and his passport dkt Epst ein obtained an extension of time in whic-4.9h to respond Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO and two-and-a-half months later on October Epstein filed an objection to producing t-7.5hese items primarily on Fifth Amendment grounds dkt On October Jane Doe filed a reply in support of her moti7.1on dkt On January Jane-4.6 Doe filed a notice hat more than days had since filing of motion dkt February the magistrate judge granted in part Jane motion compel specifically ruling hat Epstein had to produce the di scovery provided to him state and federal pros-5.2ecutors his recent ta returns and his pas-5.1sport dkt The magistrate judge explained that the req uests seek production of documents the government itself gave to Epstein making the government?s prio knowledge of the documents sought an obvious a nd undeniable foregone conc-5.5lusi on As Epstein-9.2 cannot reasonably and in good fait argue that in producing hes-5.3e documents to Plaintiff he will somehow be incrim inating himself Id at 2708.4Epstein obtained extens-5.8ion of time in which to file an appea-4.6l ultimately an appeal of the magist rate decision on February some seven months after Jane initial reques had been made dkt EPST-5.1EIN POSSESSES MATE RIALS RESPONSIVE TO JANE DOE?S RE-3.7QUESTS the outset it is worth briefly addressing what appears to be an effort by Epstein to obfuscate the fact that he posse documents and other materials relevant-7.6 to the discovery requests for production Jane Doe made reques-5.7t for materials relating-9.5 to the crimi6.9nal charges against Epstein his recent tax returns and his passports The three discovery requests regarding Ep stein?s criminal charges are Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO Request No All discovery-4.8 info rmation obtained by you or your attorneys as a result of the exchange of discovery in he State criminal case against you or the Federal investigation against you Request No documents or other evidentiary materials provided to local state or federal law enforcement inv-5.4e.8stigat ors or local state or-7 federal prosecutors inve stigating your sexual activities with minors Request No All c-5.2o1rrespondence bet ween you and your attorneys and state or federal law enforcement or prosec-4.9utors includes but not limited to letters to and from the States Atto rney?s office or any agents thereof his appeal pleading to this Cour Epstein now made the following representations to Request No Epstein and his attorneys do not have discov-5.3e.9ry information provided to them by the feder al government to Request No Epstein has not been given any evidentiary materials or evidentiary docum ents by the federal gover-7.7nment Defendant?s Motion for Reconsideration and/o Reques-4.9t for Rule Review and Appeal,-7.1 dkt at hereinafter Epstein?s Appeal Jane Doe does not take these representations to mean that Epstein poss-5e1.2sses no information responsiv-5e1.2 to thes-5e requests If this were the case Epstein co uld hav-5.3e avoided months of litigation by simply explaining that to the Court and Jane Doe at the outset Rather Epstein seems to be playing s-5.2e1mantic games With regard to discovery request no Epstein represents only that he has no discovery information from the federal government not contesting the obvious fact as Jane Doe has been reliably infor-6.9m-1.9ed that he received signific-5.5ant discovery in connection with the state cri6.6m-2.6inal char-7.6ges to which he pled guilty regard to disco very request no Epstein re presents only-5.3 that he has been giv-5.2e1n evidentiar-7.9y-.9 documents by the federal gover-7.4nment again not contesting the obvious as Jane Doe has been reliabl informed that he received doc)-5.5uments and Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO other materials including corres-5.3pondenc-5.3e fr om both the state and federal authorities-5.4 working on his case If Epstein going to c-5.3ont inue to mince in this fashion Doe asks-5.2 that he clearly explain to the ourt in any reply ple ading what materials-4.8 responsive to the requests for production he possesses so that the Court may make an informed ruling ARGUME-3.5N1.7T I MAGISTRATE J-4.3UDGE PROPER LY ORDERED EPSTEIN TO PRODUCE AND OTHER MATERIAL FROM THE CRIMINAL CAS-3.6E The magis-5.5t-2.7rate judge ordered Epstein to produce materials responsiv-5e to requests no no and no all materi als relating to the criminal Epstein This order should be af-7.5firmed A Purpose of the Federal Rules of Evidence Regarding Settlement 2720Discussio-4.6n.4s Does Not Provide Basis for Resisting Discover-6.1y5.9 main argument that Epstein ma kes before the Court now against this-5.2 request for production is that it would supposedly-5.5 violat the purpose underlying the Rules of Evidence that limit the use at trial of certain evidence regarding settlement discussions This argument should be rejected for numerous reasons it is important to understand that ar-7.2gument is being rais-5.1ed against-7.3 the backdrop of a sustained and thus far successf ul effort by Epstei)6.8n to prevent Jane Doe from obtaining any documentary discovery from him re garding this case As the Court-7.5 is well aware from the pleadings in this and related cas-5.2e1s through a battery of attorneys It is also important to 5.5note that Jane Doe?s discovery req-5.5uests date 5.5back to last 5.5July Jane5.4 Doe assumes that Epstein has destroyed or otherwise dispossessed him9.1s-1.5elf of any materials responsive to the requests since that time Jane 5.5Doe also assumes that 5.5Epstein will give the discovery requ-5.7ests their r6.1easonable 5.4and ordinary understanding rather than some strained inte5.4rpretation.5.8 Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO Epstein has raised numerous objections to providing discovery to Jane Doe and other-7.4 plaintiffs Epstein has also taken the Fifth with regard to all substantive-4.2 questions-5.3 propounded to him about his sexual abus-5.3e of young girls Jane Doe?s efforts to obtai7.3n1.3 the materials in this motion are har dly the lily if she receives them they would be the first substantive materials that she has obtained fr om Ep5.5stein in this case 2565Second Epstein?s ar-7.3gument about the onfidentiality-5.5 of settlement discus-5.5s-.5ions-5.5 only pertains to Jane Doe?s dis-5.5c-.5overy equest No which seeks correspondenc-5.2e with the Government It has no application to her discovery Requests Nos and regarding documents and other ma terials provided by stat and federal prosecutors-5.2 during the criminal cases agains-5.4t Epstein Accordingly those two requests should be summarily granted Third 2395argum ent before this Court regar ding settlement discus-5s0ion confidentiality is an entirel new argument from the one that he presented to the magistrate judge the magistrate judge Epstein?s argumen was that producing the correspondence with the Government ould violate his Fifth Amendment privilege against Self-Incrimination Defendant Jeffrey Epstein?s Response in Op-4position Plaintiff?s Jane Motion to Compel Response to Plaintiff?s Request for Production dkt at hereina fter cited as Epstein?s Res ponse in Opposition?-7.6 raising Fifth Amendment act of produc tion argument It was onl at the tail-end of his memorandum that Epstein even menti oned regarding the settlement The request covers co5.3rrespondence with state5.3 or federal la5.3w enforcement or prose5.3c-1.6utors For convenience the re5.3quest will described being for corresponde5.3nce with Govern-6.5ment-6.1 Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO discussions His argument te rsely asserted that a reading of the particular discovery requests reveals-5 that they enc-5ompass at-7.2to rney-client and work-p roduct privileged material Epstein?s-5.5 Respons in Opposition at The ar-7gument then concluded with the claim that the feder al rules of evidenc-5.6e prev ent the production of such material Id at magistrate judge had no difficu in dispat-7.3ching not only the Fifth Amendment claims discussed below but al so the ar-7.1guments that Epstein presented regarding the alleged attorney-c lient and work-product privilege The magistrate judge rejected out of any c-5.2l2aim by Epstein regarding attorney-client privilege becaus-4.9e issues dis-5.6c-.6ussed wit-7.8h the Government could hardly be viewed as confidential communications between a lawy er and his client for the purpose of obtaining legal advice Omnibus Order dkt at And with regard to the Federal Rules-5.6 of Evidenc-5.3e r-7.3e.9lating to s-5.3e.9ttlement discussions the magis-5.4t-2.6rate judge noted that-7.6 the apply only to the trial not the earlie discovery phase of a civil case Id at 2320Rather than contest these uncontrovertab le propos-5.4itions before this Court Epstein advances a new set of attacks on produc-5.2ing the corresp ondenc-5.1e He now contends t-7.4hat produc-5.2tion would contravene the cr itic-5.4al public policy that allows plea-9 bargaining of criminal charges Epstein?s Appea-4.6l at He then dives into what he alleges is the purpose of the ru les and claims that thi7s-.2 purpose will be violated if he required to produce his corresp ondence wit-7.4h the Government at In support of his argument he cites a series of cases that discuss c-5.3onfidentialit-7.5y generally-5.3 but not discovery issues Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO 2664Epstein never presented this argument to the magistrate judge Nor did Epstein cite any of the supporting cases t-7.6hat he now cites to this Court to the magistrate judge.-7.4 Accordingly this Court should not consider-7 this new argument being presented to it for the first time As th6.3e Eleventh Circuit ha explained Systemic efficiencies would be frustrated and the magistrate judges role reduc ed to of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing and save its knoc-5.2kout for the second round Willia-4.6ms McNeil F.3d th Cir in any event far from being a kn ockout punch Epst ein?s argument meritless As is readily-5.1 apparent Epstei is an argum ent based on what he alleges to be good public Epstein?s A ppeal at But in approving Rules of Civil Procedure Congress has already ade a different determination about the appropriate policy to follow dur ing disc-5.4overy The Rules-5.4 of Civil Procedure permit discovery of course regarding any nonprivileged matter that is rel7.2e1.2vant to Jane Doe?s-5 claims Fed Civ emphasis added The Rules)-4.8 of Evidenc-4.8e1.4 regarding settlement discussions rules and do not create any privileges It is possible that Epstein may ultimately argue that these ru les exclu-4de certain evidenc-5.1e at trial If he makes these arguments Jane Doe will respond in due cour-7.3se But under the discovery rules relevant information need not be admissible at the trial if the discovery Both rules contain5.4s-1.5 e5.4x3.9emptions allowing such evidence to be used prove such things state of mind bias 5.5and prejudice or othe5r things apa5rt from mere liability for the matter under discu5.9ssion See e.g United-5.5 States Peed 4th Cir admitting defendant?s offer to re5.1turn missin5.1g-.3 property because 5.4appeared 5.4motivated by purpose persuading 5.5victim to criminal charges rather than to compromise 5.4civil claim The Florida)5.2 rule that Epstein cite5.5s e5.5v4en though 5.4not applicab5.5le in this fed5.5e.1ral case ar6.4e also subje5.5c-1.4t to similar exemptions Once Doe has opportun5.1i-1ty to review the materia5l-1.1s that5.4 Epst5.4ein provides,-5.5 she believes that she will be able to provide 5.5mu-5.5ltiple permissible ground5.4s for believing that the corresponde5nce falls co5mfortably wi-6.5thin the exemptions Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO appears reasonably c-5a1.2lculated to lead to the disco very of admissible evidence Fed Civ Thus discovery is cons trued broadly-5.2 to encom-7.2pass matter that bears on or that reasonably-5.2 co uld lead to another matter hat could bear on that is or may be in the case Oppenheimer Fund Inc Sanders U.S The correspondence wit the gov-5.2ernment agencies ma well point J-5.1ane Doe in the direction of admissible ev-5.6idence and herefore Epstein shou ld be compelled to provide the correspondence sought in request number 2505Fifth even if Rule and could be viewed restricting discovery civil cases they-5 are entirely inapplic able to this particular Rule is the specific rule covering plea bargaining in criminal cases It makes inadmissible against a defendant-7.2 any statement made in he course of plea disc-5.4ussions wit-7.6h an attorney for the prosecuting authority which do not result in a plea of guilty Fed Evid emphasis-5.2 added Of course in this case the dis-5.6c-.6ussions that Epstein had with prosecutors did result in a plea of guilty ther efore Rule is by its own terms-5.3 completely irrelevant to correspondence by Ep stein inv-5.3o.9lving a ultimate guilty plea 2489Rule does not cr iminal plea bargaining but is a general rule that covers settlement discussi ons in civil cases UELLER AIRD IRKPATRIC-4.7K 3d ed Federal Rule of Evidence is intended to apply to settlement negotiations in civil ca ses as indic-5.6a.6ted by the reference compromising a claim rather than a charge Plea-4.1 bargaini ng in criminal cases addressed by Federal Rule of Ev-5idence Therefore Epstein simply c-5.1annot rely-5.1 on Rule as basis for refusing to produce mate rials connected with plea bar-7.3gaining Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO all thes-5.3e reasons Epstein?s-5.3 argument th at it would contrav ene public policy to order him to produce his correspondence wit the Government should be rejected Fifth Amendment Privilege Against Self-Incrimination Does Not 2720Provide Basis for Resisting Discover-5.8y6.2 Ma terials Seen 2720Government 2613.8Epstein half-hear-7.5tedly continues to pr-7.2ess the ar-7.2gument that the magis-5.2t-2.4rate judge emphatically rejected that producing materials that the Government disclos-5.8ed during the plea disc-5.8ussions would violate-4.2 the Fifth Am endment Epstein?s Appeal at His argument to this Court is little more than a cut-and-paste of the pleading he filed wit-7.9h the agistrate judge not even bot hering with revision discuss the analysis of or cases ci7t ed by the magist rate judge magis-5.3t-2.5rate judge rejected Epstei Fifth Amendment argument because requests and seek-5.2 production of documents the government itself gave Epstein making the government?s prior kno wledge of documents sought an and undeniable foregone onclusion As such Epstein cannot reasonably and in good faith argue that in producing these doc-5.1uments to Plaintiff he will somehow be incriminating himself Omni bus Order at The magist rate judge cited as supporting authority In re Grand Jury Subpoena F.3d th Cir noting there can be no self-incrimination by production where the exi stenc-6e and location of the documents are a foregone conc lusion and the claimant adds little or nothing to the sum total of the Government?s informa tion by c-5.8onceding that he in f-8a.4ct has the documents 2540Rather than address this analys-5.4is Epst ein maintains-5.1 that producing the items could furnish a link in the chain of evi dence needed to prosecute him for a Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO Epstein?s-5.7 Appeal at This claim is remarkable bec-5.3ause Epstein is arguing that the materials at issue which started in he government?s possession are now someho-4.2w transformed and given Fifth Amendment protecti on by his mere receipt of them The Fifth Amendment does not work such alchemy is true of course that the Fifth Am endment covers situations where the act of producing documents has communicative aspects of its own whol ly aside from the contents of the pap ers produced Fisher United States U.S But this act of production doctrine has stri ngent limits It does not extend for example to a claim by a taxpayer hat he would incriminate by producing accountant?s work paper-7.6s As the Suprem Court has explained and he magistrate judge properly recognized the government?s awarenes of these documents was a foregone and therefore thei production could be required is doubtful that implicitly adm itting the existence and possession of the papers rises to lev-5.1e of testimony within the pr-7otection the Fifth Amendment The papers belon to the accountant were prepared by him and are the kind us ually prepared an acco untant working on the tax returns of his client-7.5 Surely the Government is in no way relying on the truthtelling-4.2?-2.4 of the taxpayer to prove the e-3.5x5.3istence of the documents The existence and loc-5.4a.8tion of the papers are a foregone conclusion Fisher U.S at emphasis added 2690Courts applying this foregone conclusion standard to various fact patterns have asked whether the government was aware of the doc-5.3uments existence apart any actions of the defendant Thus United Stat-7.8es Hubbell U.S rejected the Government?s argument hat it was a foregone conclu sion that the defendant possessed ordinary business records The Court noted that the government had no prior knowledge of these records Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO Whatever the scope of this foregone co nclusion rationale the facts this case plainly fall ou tside of it While in Fisher the Government already-5.2 knew that the documents were in he attorney?s pos-5.6session and could independently confirm their exist enc-4.8e and authenticity through the accountants who created hem here the Government has not shown that-7.9 it had prior knowledge of eit-7.2her the existence or whereabouts of the pages of documents ultima tely produced respondent Id at emphasis added this case of course the government?s prior knowledge of the documents that Jane Doe seeks is obvious-5.8ly and undeniably a foregone conclus-5.5i-3.3on The governm8.2ent itself gave Epstein the documents Therefore there is no plaus-5.3ible argum-7.3ent that producing these doc-5uments to Jane Doe Epstei will somehow be in criminating himself by disc-4.7losing to the government somethi ng that does-5.5 already-5.5 k-5.5now The government clearly has prior knowledge of doc ument-7.3s that it gave to Epst-7.3ein Here then as the magistrate udge properly held relying on an instructive Ninth Circuit-12.1 opinion not discussed by Epstein the exi stence and location the docum-7.1ents are a foregone conc-5.2lusion and 7.4E1.8pstein adds little or nothing the sum total of the Government?s information by conceding hat he in fact has the documents In re Grand Jury Subpoena Dated April F.3d 9th Cir D.C Circuit has recently refused to extend the act of producti7on doctrine on facts very similar to those here In United States Ponds F.3d D.C Cir federal prosecutors sought informati on abou-4.5t possible crimes committed by a defense at-7.9torney in cour se of representing a def-7.2endant in a federal The prosecutors subpoenaed the attorney to pr oduce all correspondence between him and courts and prosecutors in that case In summarily rejecting an argument that producing-9 the documents would somehow fall within the act of production doctrine of the Fifth Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO Amendment the D.C Circuit explained that the government must have known of the existence of documents because it was a party to that correspondence Id at The Circuit-7.8 further explained that the government?s subpoena ne ed not name every scrap of paper that is produced the government already had sufficient-7.3 knowledge about the case-related documents the defense attorney simply surrendering them not testifying by complying with those demands in the subpoena Id Other cases similarly reject attempts to use an of production shield to turning over documents whose existence are known to the government or is a foregone conclus-5.6i1.6on See e.g In re Grand Jury Subpoena Tecum7.7 Dated Oct F.3d 2d Cir rejecti ng act of production argument because complianc-5.2e with subpoena requiri ng production of a personal c-5.3a.9lendar would require mere surrender of the calendar and not te internal quotation omitted United-4.7 States Clark F.2d Cir 6.6a1.6ccounting records not subject to act of production protection in producing re cords the defendant would not authenticat-7.1e the documents as being his own or being accurate Securities and Exchang-9.2e Commission First Jersey Securities Inc F.2d 2d rejecting of production argument regarding bank-4.8 because every-4.8body knew that they existed Attorney11.8-Client Privilege and Work-Product Doctrines Are Not Applicable 2720Discover-6y11 2715Requests 2685Although his appeal memorandum is not enti rely clear Epstein also seems to be arguing some sort of attorney-client or work-product privilege ba rs production of the documents As the magistrate judge found in rejecting this-4.9 claim out of hand Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO Omnibus Order at any su ch argument is frivolous As the magistrate judge explained The attorney-client pr-7.4ivilege prot ects confidential com-7.4m-2.4unications between a lawy-5.5er and his c-5.5lient for the pur pose of obtaining legal advic-5.3e.8 Id There is nothing confidential about m-7a1.2terials being exch anged between Epstein and g-4.2o-4.1vernment prosecutors regardless of whether the mate rials or correspondence were being sent from the prosecutors to Epstein or from Epst ein to the prosecutors Epstein does-4.9 even acknowledge much less atte mpt to refute the magist rate judge?s reasoning ordering Epstein to produce these materials Privacy6.2 Rights of Third Part ies are Not Implicated The Magistrate6.4 2720Judge?s 2720Order a last attempt to thwart production Epstein appeals to third-party pri7.1v-.1acy rights Epstein?s Appeal at Given the extent to which Epstei n?s hired investigators have interrogated anyone even remotely onnected with this case this appeal privacy interests rings rather hollow In an event it is odd to think that the privacy rights of these third persons do not interf ere with Epstein himself a c-5.1onvicted offender reviewing t)-7.6hese materials but forbid equal viewing attorneys for a victim who was victimized by him None of the authorities cited by Epstein are remotely-5.6 Ja6.2ne 6requ6.2est 6No so6.2ught 6?all co6.2rre6.2sp6.2on 6between 6you and yo5.4ur attorney9.1s an5.4d state federal enforcem7.2ent or but not limited to letters to and the State-7.5 Attorney?s offi6.8ce any a5.5g5.5ents emp5.5ha5.5sis 6a dded5.8 In a 6cryptic hi7.1s ap5.8peal Epstei7.1n-6.2 states to the5.1 extent that 6the is now limited to commu5.3nica5.3tions from th5.3e Govern5.3men5.3t2.4 to Epstein see6.1 t9.2he 6requ6.1est9.2 impli7.4c-2.2at the 6sa5.7me 6for the5.7 opi7nio5.7n-.3s the5.7 6work prod5.1uct a5.1nd 6the expe5.1ctati6.4on of of the States Atto4.6rney 6Epstein?5.9s Ap4.6peal 6at It?s hard to 6und5.5erstand 6what E8.5p-.5stein by this se5.5nte5.5n ce Th5.3e cite5.3d do5.3cket entry DE 6has 6nothing5.3 to do 5.9with th4.9e di6.2scovery 5.9reque4.9st at this 5.9se5.1nten5ce is sim6.5p-.9ly re5.1mnant a botch5.6ed cut 6and from anoth5.6e-.4r in an5.6other ca6se 6where do6cket 6entry woul7.3d be rel7.3e0vant9.1 In any event to be Jane 6Doe not na5.7rro he5.3r re5.3q5.3uest to only 6one-half of the rel6.6e-.7vant corre5.3s-3p5.3ond5.3en5.3ce an5.3d thus t8.4he magi6.6strate5.3 judge?6.6s is not limited to one-h5.3a-.7lf of the Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO similar to the case at hand They all involv ed third parties asserting their own rights Epstein simply lacks standing to rais the interests of third partie6s-.2 of course Jane Doe counsel are aware of limits restricting use information provided in discover-7.5y to matters pertaining to the litigation Jane Doe?s counsel understands very well hat the names of minor sexual assault victioms should remain confidential and there is no intent to compromise hat the confidentiality of these girls Therefore Epstein?s argument should be reje cted summarily II MAGISTRATE J-4.2UDGE PRO PERLY ORDERED EPSTEIN TO PRODUCE Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO cases hav-5.2e found no Fifth Amendment protecti on for tax returns as magistrate judge spec-5.5ifically noted in re jecting Epstein?s argument See e.g Rajah Mukasey F.3d 2nd Cir a taxpay-5.5er?s form are required records subject to the Fifth Amendment because they ar a mandatory part of a civil regulatory-4.7 regime 2d Cir we have lit-7.6tle difficu-4.3lty-5.4 apply-5.6i1.6ng the required records exception to he forms and ordering production of forms over Fifth Amendment objection In Doe F.R.D S.D.N.Y ordering prod uction of physician?s fo rms as required records In re Grand Jury Empanelled March F.Supp ordering the production of tax r-7.3e.9turns and statements to a grand jury affd F.2d 3rd Cir We affirm hat those subpoenaed documents in the appellees possession which are requi red eit-7.9her to be kept by law or to be dis-5.7c-.7losed to public agency should be produced for the grand jurys inspection affd in part revd in part on other grounds-4.9 sub nom United States Doe U.S Nor does-5.3 Epstein contest the magistra te judge?s observation that given the Government already-5.2 possesses the tax return it can hardly be incriminating for Epstein to produce them Omnibus Order at 2575Epstein does not tarry long on these undamental problems moving quick-5.5ly to the claim that even if the Fifth Amendment does not bar producti on of the tax returns he is entitled claim the benefits of some more stringent standard for production than would otherwise apply-5.3 to discove ry Epstein?s Appeal at The authority for this claim is said to be Trudeau New York State Consumer Protection Bd F.R.D N.D.N.Y which reviews)-5.2 some decisi ons from within the Second Circuit and Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO discusses a compelling need s-5.3t-2.5andard that apparently applies in the Northern District-7.1 of New York Epstein?s Appeal 2471Epstein?s suffers from two fundam ental problems First Epstein simply-5 never argued to the magistrate judge that he was ent itled to a more stringent standard of review.-7 Rather his argum-6.8ent to the magistrate judge was exclusively a Fifth Amendment argument Epstein?s-5.1 Respons-5.3e in Opposition at Here again in the interests of judicial efficiency this Cour should not consider new arguments advanced for the first time on appeal from a magistrate judge Willia-3.9ms McNeil th Cir a district cour has discretion decline to consider-7.2 a partys-5.2 argument when that ar gument was not first presented to the magistrate judge 2547.9Second whatever may be the law in th Northern District of New York about discovery of tax returns there the law in he Eleventh Circuit is that tax returns are subject to ordinary discovery principles Although Epstein?s failure to raise the issue below prev-4.9ented Magistrate Judge Johnson from reviewing the is-4.9sue in this-4.9 case the state of the law in the El eventh Circuit was recently and carefully reviewed Magistrate Judge Hopkins in another case In Un-3.9ited States Cert ain Real Property-5 known as and Located at Polo Po Way Delray Beach Fla 145F.Supp.2d he explained that this claim of a higher standard had been rejected by Maddow Procter Gam8.4b1.6le Co Inc F.3d Despite the fact that some Courts within the Southern District of Florida have required a compelli ng need prior to orderi ng disclosure of tax records the Eleventh Circuit decli ned to adopt such a position In Maddow F.3d at the defendants equested plaintiffs tax returns-5.1 and sent an interrogatory seeking de tailed attorney fee arrangement-7.4 Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO information Although the plaintiffs obj ected to the tax return request on privilege and relevance grounds they provided and forms to document their earnings The district court found that the tax records would contain relev-5.3a-4.1nt information not contained within the s-4.7u1.4pplied forms and ordered the plaintiffs to pay three thousand dollars in attorneys fees for not complying with the discovery request See Id 27On appeal in affirming the dist-7.4ri ct courts order compelling production of the tax records the Court stated the courts-5 decis-5ion to compel discovery was not an abuse of discreti on both items of information are arguably relevant to the case Id However the Court reversed the district courts imposition of sanctions finding hat the plaintiffs were substantially justified in relying on out-of-circuit dist rict court caselaw in s-4.8upport of their-6.8 contention that a compelling need had to be shown prior to ordering disclos-5.4ure where there was no in-circu it caselaw regarding the disclosur-7.3e of tax records See Id It should be noted that wh ile the Court recogniz-5.2ed that cases requiring a compelling need to be shown prior to ordering disclos-5.4ure of tax recor-7.4d.8s existed the Elev-5enth Circuit did not adopt such approach See Id U.S Certain Real Property known as a nd Located at Polo Po inte Way Beach Fla F.S6.8upp.2d S.D.F la This Court should like-4.9wise the Elevent Circuit?s in M-8.2addow and treat th6.9e tax5.8 return information as discoverable under ordinary standards See also Shearson Lehm7.8a-9n Hutton Lam8.2b1.4ros F.R.D ordering disc-5.1losure of tax returns because information was relevant to the parties claims and defense-4.3s4.6 reasoning that the quasi-pr ivilege for tax returns had not been express-5.5l1.7y recogniz-5.5e.6d within-4.1 Circuit Weiner Bache Halsey Stuart Inc F.R.D holding that no privilege attaches to tax r-7.2e1turns and that their-7.2 discoverability turns on relevance MCI Worldcom Network Ser vs Inc Von Behren Elec Inc No at N.D.Ga May same citing Shearson Lehm7.8a-4n Hutton Inc F.R.D at Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO 2685Finally for the sake of completeness Jane Doe could easily even a more stringent standard for obtaining Epstein?s tax re turns Even court-7.2s0 in New York would order production of tax returns in discovery here it clearly appears that they are relevant to the subject matter of the acti on and a compelling need is shown becaus)-5.2e the information contained therein is not otherwise av-5.6ailable Dunkin Donuts Inc Marys Donuts Inc WL at D.Fla ci3.5ti3.5ng C3.5ooper Hallgarten Co F.R.D 2425Epstein?s returns-5.5 are clearly relevant to Jane Doe?s for numerous-5.5 reasons First a theory of Jane Doe?s is that E6.4p.6stein used his wealt-7.8h.6 and power to lure economically disadvantaged minor girl to his homes in Palm Beach,-7.8 New York-5.6 and St Thomas where they were sexu-4.6ally a ssaulted Epstein?s tax returns will establish imbalance of economic power that was at the heart of his ability to pressure them into being sexually-5.2 assaulted 2649.2Second Jane Doe seeking not only com-6.9pensatory damages but also punitive damages Epstein?s-5.3 income in recent year-7.3s is plainly-5.3 relevant to he size of the pun-4itiv-5.1e damage that the jury will need to im-7.4pose to sufficiently pu-4.1nish and insure he does not continue the same crimes in the future Indeed Epstein appears to concede that his tax r-7.4e.8turns are relevant to this issue offering to stipulate that he has a net worth of over Epstein?s-5.5 Appeal Of course this stipulation should hav-5.7e been presented in first instance to magistrate judge rather than to this Court on appeal In any event Jane Doe is entitled to argue for punitive damages based on Epstein?s-5.2 full net worth not some onservative calculation of a figure that is lower undet-7.5ermined amount Jane Doe believes in good fa ith that Epstein?s Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO net worth is substantially more t-7.2han mi llion he has been routinely-4.7 described in the media as a billio-4.4naire-4.4 and is entitled to pur sue discov-4.9e1.3ry to confi7.3rm her belief 2615Third Jane Doe?s counsel c-4.9ontinue to re ceive disturbing reports that Epstein moving all of his assets overseas in an effo rt to defeat collection of any judgment that Jane Doe and other plaintiffs may obtain As the Court is aware Jane Doe even filed motion for among other things a restraini ng order-7.4 forbidding Epstein from making fraudulent transfers of his assets dkt The Court ultimately denied that motion,-7.6 primarily on grounds that wh ile Epstein had taken the Fifth when asked about fraudulent transfers Jane Doe lacked affirmati ve evidence that such transfers were taking plac-4.9e Order dkt at Epstein?s tax r-7.4e.8turns may help to pr-7.4ovide the affirmative evidenc-5e lead to affirmative evidenc-5.1e that such fraudulent transfers are taking plac-5.4e Cf Epstein?s Appeal at conceding that his tax returns will reveal complicated business transactions 2640Fourth Jane Doe has all eged and found limited evidence suggesting that-7.1 Epstein is using modeling agencies as a means of luring young under-aged to him for sexual purpos-5.2es Epstein?s tax return may reveal the existence and location such modeling agenc-5.4ies 2705Fifth Jane Doe is c-5.2u1rrently facing Epstei n?s motion for summary judgment her count that alleges a v-5.2i2olati on of U.S.C which in turn incorpor-7.2ates sexual Jane was able to produce evidence that Epstein had fraudulent transferred the title to several of his vehicle 5.4third parties in an e5.3ffort concea5.3l ownership of these5.3 The5.3 Court concluded that these frauds were de 5.5minimis given Jane Doe?s allegation t5.7hat Epstein was a billio5.1naire Order at Ep5.1stein?s tax returns are relevant5.5 to these 5.5issues since they may s-7.5how additio4.9nal assets t5.3hat have be4.9en fraudule4.9n-.5tly titled an4.9d may shed light5.3 on true status his finances Moreover if Epste5i4.4n?s net5.4 worth is million t5.4han it woul4.4d5 appear that 5.4Epstein had obligatio5.3n to ca5.3ll th5.3is 5.4fact to the5.3 at5.7tention of th5.3e Court at th5.3e time that5.7 it ruled in favor based on the fact5.8 that he was an alleged 5.5billiona5.4ire Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO assault and child abuse statut es that requir-6.8e1.4 a federal nexus-4.8 i.e use of a means of-7 interstate communication Yet Epstein ha filed two in camera pleadings-5.4 with this Court that appear to det ail how his financial information ma be relevant to such federal nexus iss-5.2u-4es See dkt and in camera plead ings The tax r)-7.3e.9turns may help Jane Doe establish the intersta te nexus-5.3 to Epstein?s offenses second prong of the heightened test would require Jane Doe to establish that the information contained th erein in the tax returns is not otherwise available.?-7.5 Dunkin Donuts Inc Marys Donuts Inc WL at S.D Fla Here again this prong is satisfied Epstein taken the Fifth on answering among other things all financial questi ons propounded to him and has ot-7.7herwise thus-5.5 far thwarted discovery-5.2 by Jane Doe and other pl aintiffs on financial issues as well as other issues in this case See e.g dkt While it is t-6.9hat Jane Doe will be entitled to an adverse inference as to all i ssues where Epstein has elected to obstruct discovery through blanket th amendment invocat-7.6i1.8on Ja ne Doe antic-5.6ipates that-7.8 Epstein will attempt dilute the impact of such an inference at trial Therefore Jane Doe should not be left only with evidence deduced from adv erse inferences and she deserving of all corroborating do cumentation that is not blo cked by assertions of the th amendment Clearly-5.4 the tax ret-7.3u1.1rns are a way in which Jane Doe can get supporting evidenc-5e as to Epstein?s financ-5es Epstein does not argue otherwis For all these reasons the magistrate judge properly or dered to produce his r-7.6e.6cent tax returns Of course t5.6here are no 5.4Fifth Amendment concerns raised5.2 by production tax records alread5.2y9.2 in the Government?s possession,5.7 for 5.5the reasons 5.5explained earlier Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO I MAGISTRATE J-4.1UDGE PRO PERLY ORDERED EPSTEIN TO PRODUCE GOVERNMENT-I-7.6SSUED PASSPORT The magist-7.5rate judge also requir-7.3ed Epstei to produce to Jane Doe pass-5.4port a document obvious-4.9ly issued by the Governm ent Epstein ar)-7.1gued to the magistrate judge that producing passpor-7.3t might constitute a link in the c-5.4hain of evidence that could tie him to various federal crimes Ep stein?s O-7.6pposition at The magistrate judge rejected this argument for two reasons First the magistrate judge reasoned that-7.5 Epstein is required to show his Passport to Government officials-5.1 every time he travels outside the United States so the Governm ent undeniably has prior knowledge of the Passport?s existence and its whereabouts is a foregone co nclus-4.8i2.4on Omnibus Order-6.8 at citing Hubbell U.S at the ma gistrate judge conc-5luded that the passport was a required record to which the Fifth Amendment pr ivilege cannot be properly invoked Omnibus Order at citing and quoting Rajah Mukasey F.3d 2d Cir Just as a taxpayer forms are required records not subject to the Fifth Amendment because they ar a mandatory part of a civil regulatory-4.7 regime so too are the passports at issue in the cu rre6.5nt case 2594Rather than respond to the magistrate judge?s analysis and to the cited Epstein once again raises a new set of argum ents Epstein 7.5initially that he entitled to invoke a Amendment priv ilege for his passport unless Jane Doe show that the government has an exact copy of same Omnibus Order at emphasis in original Ep stein f-6.9u1.5rther contends that he Order presuppos-5.2es that the Customs and Border-7.3 Patrol has records of a ll of Epstein?s destinat ions and that other countries have shared the information with the CPB Epstein Appeal at Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO 2515Here again this Court should reject Epstein?s argument becaus-5.5e he failed to present it to the magistrate judge The Court should be parti cularly reluctant to venture into the argument that he raises because it involv-5.6es-5.6 certain evidentiary is-5.6sues about the nature of the Customs and Bo rder Patrol records evidentiary issues that were litigated below See Willia-5.1ms McNeil F.3d th Cir to require a district court to consider evidenc not previously present ed to the magistrate judge would effectively nullify the magistra te judges considerati on of the matter and would not help to relieve the workload of the distri ct c-4.9ourt internal otation 53.3omitted 2580Even if the Court decides to review Epst ein?s claim the claim is without merit The controlling case law does not require that the Government have an exact copy of the records as Epstein now ar gues but only that the exi stence of the records be a foregone as the magistrate judge found For example in the Hubbard case cited by the magistrate judge the upreme Court explained that in an earlier Fisher United States it had rejected a taxpayer?s efforts to invoke a Fifth Amendment privilege against pr oducing working papers prepar ed by the taxpayers-4.7 accountants that the IRS knew were in the possession of he taxpayers attorneys Hubbell U.S at citing Fisher United States U.S While the Government did not have an exact copy of these records or even any copy-5.8 for that matter the Supr eme Court rejected a Fifth Amendment invocation bec-5.5ause 70It is doubtful that implicitly admitti ng the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment The existence and loca tion of the papers are a foregone conclus-5.2i2on and the taxpay-5.2er adds little or n-3.4o1.7thing to the sum of Governments information by conceding that he in fact has the papers Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO Hubbell U.S at quoting Fisher United States U.S at In line with Fisher doz-4.8ens of implicitly hold that he Government need not have a copy records in order to defeat a Fifth Amendment privilege See e.g Rajah Mukasey F.3d 2d Cir rdering productio-4.3n.8 of pa ssports without requiring showing that Government had exac copy of those passports the magistrate judge hel a second reason for reject ing Epst-7.5ein?s attempt to invoke the Fifth Amendment before producing his passport is that the passport is a required record for which the Fifth Amendment is simply inapplicable The magistrate judge cited Rajah Mukasey F.3d 2d Cir which s)-4.9p-3.7ecifically held that just as a taxpayer?s forms ar required records not subject to the Fift-7.4h Amendment because they are a andatory part of a civil regula tory regime so too are the passports at issue in current case Epstein does not respond to doctrine or offer any case law in response addition to Rajah Mukasey the magistrate judge co uld also have cited authority from this Court which spec ifically adopted that case In States Garcia-Cordero F.Supp.2d S.D.Fla this Court quot)-7.4ed from and adopted Rajah conc-5.4lusion that passports are not protected by the Fifth Amendment Id at the Fifth Amendment does not protect persons either from being forced to turn over their passports quoting with approval Rajah Court went on to explain that notwithstanding the Fifth Amendment the Government may requir-7.3e disclos-5.4ure of informati6.8on where the area of i nquiry is regulatory rather than criminal where the field subject to the disclosure obligation is not permeated with criminal statutes and where there is a substantial non-pros-5.6ecutor ial interest served by the Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO reporting regime Garcia-Cordero F.Supp.2d at-8 citing Rajah Mukasey F.3d 2d See also United States McDowell F.3d 11th Fifth Amendm ent rights are generally diminished in the context of border crossings All these rationales apply here Epstein?s-5.7 passport is simply a government-issued record that he must present whenever he enters this country The only information disc-5.2losed on the passport is stamps placed on it by the Unit-8ed States-5.8 government or other governments And of course all of this information is reviewed government agents whenever Epstein cros-5.1ses a border In these circumstances there is plainly no Fifth Amendment pr ivilege for E7p1.2stein to invoke 2695Finally Epstein contends that Jane Doe ne eds to show some kind of substantial need for his passport Epstein?s Appeal at This argument was not presented to the magistrate judge and is also frivolous The discovery rules do require a request be predicated on a subs-5.3tantial need but only-5.4 that it be 7.4r-2.4easonabl calculated to lead to the discov-5.1e-3.9ry of admis-5.1sible evidence Civ As Epstein concedes Jane Doe has been pursuing discovery in this case regarding flight manifests and other-7 international travel Epstein Id at Clearly the passport is relevant to this line inquiry It is also relev ant to supporting Jane Doe?s theor that Epstein has brought minor girls into this country to satisf his sexual appetite for underage girls CONCLUS-2.3ION magistrate judge carefully cons idered Epstein?s arguments against producing certain materials and for three particular categorie criminal dis-5.3c-.3overy tax returns and a passport required that Epst ein producing them he magistrate judge Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO properly analyzed the issues and the ruling requiring Epstein to produce the materials should be affirmed 2579.2Epstein should also be directed to pr oduce the materials within three days as this Court has indicated would be the requi rement upon affirmance of the magistrate judge?s order Dkt at In the event hat Magistrate Judge Johnson?s February Or-7.1der is affir-7.1m-2.1ed on appeal Defendant will have three business days the date of this Court?s order to produce the documents at issue DATED March Respectfully Submitted Bradley Edwards Bradley Edwards-5.3 FARMER JAFFE WEISSING EDWARDS FISTOS LEHRMAN P.L North Andrews Avenue Suit-7.8e Fort Lauderdale Florida Telephone Facsimile Florida No E-mail brad pathtojustice.com and Salt 2720Lake 2720City Telephone:-7.7 Facsimile:-7.7 E-Mail 110cassellp law.utah.edu Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO CERTIFICATE OF SERVICE HEREBY-3.6 CE-3.6RTIFY that on March I electronic a-4.2lly file-4.2d the document with the Clerk of the Court using CM/ECF I also certify that the foregoing document is being served this day on all part ies on the attached Service List in the manner specified either via transmission of Notices of Electronic Filing generated by CM/ECF or in some ot-7her authorized manner for those parties who are not authorized receive electronically filed Notices of Electronic Filing.-7.5 Bradley Edwards Bradley Edwards-5.3 SERVICE LIST Jane Doe Jeffrey10.8 Epstein United States District Court Southern District of Florida Jack Alan Goldberger-7.7 Esq Jgoldberger agwpa.c-5.1o1.1m Robert Critton Esq rcritton bclcla-4.3w.com Isidro Manual Garcia isidrogarcia bells-5.2outh.net Jack Patrick Hill iph searc-5.7y-.7law.com Katherine Warthen Ezell KEzell podhurst.com Michael James Pike MPike bclclaw.com Paul Cassell cassellp law.utah.edu Richard Ho-4.5race Willits-5.7 lawyerswillits aol.com Robert Josefsberg rjosefsberg podhurst.com Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of CASE NO Adam Horowitz ahorowitz-5.6 5sexabus-5.6eattorney.com Stuart Mermelstein-4.1 ssm sexabuseattorney.com Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of
