Case Document Entered on FLSD Docket Page of Doe Epstein Page No resolved This motion addresses those requests on which the parties were unable to come to an agreement Also Defendant has filed simultaneously with this motion a Motion To Compel directed to certain of Plaintiffs Answers to Defendants First Set of Interrogatories also dated January and which addresses identical discovery issues Both motions should be determined at the same time Motion To Compel Response to No Individual and/or joint income tax returns and supporting documentation including and forms for and as well as all records or documentation relative to the Plaintiffs earnings for the current year Response Plaintiff objects to this request as overbroad unduly burdensome and not reasonably calculated to lead to discovery of admissible evidence Without waiving this objection Plaintiff has no responsive documents in her possession Legal Argument Supporting Entitlement to Discovery Sought in No Plaintiff does not make a relevancy objection but instead claims that the request is not reasonably calculated to lead to the discovery of admissible evidence Plaintiff also claims that the request is overbroad and unduly burdensome but fails to make any showing whatsoever how the request is overbroad or unduly burdensome as required under Rule and Local Gen Rule S.D Fla On its face the six year time period of for Plaintiffs tax returns and supporting documentation is reasonable Plaintiffs Second Amended Complaint alleges that the alleged sexual abuse and exploitation of her by Defendant occurred in 2d Am Complaint I9 Plaintiff also states without waiving her objection that she has no responsive objections in her possession Case Document Entered on FLSD Docket Page of Doe Epstein Page No In her Answers to Defendants First Set of Interrogatories dated January interrogatory no Plaintiff identifies one place of employment for a period of time of September February she states she has been otherwise unemployed See Exhibit hereto for Plaintiffs answer to interrogatory no Should Plaintiff file or has filed such a tax return for such period of employment or has received any IRS documentation from her employer Defendant is entitled to such documentation as such information is both relevant and reasonably calculated to lead to the discovery of admissible evidence requiring that Plaintiffs objections be overruled It is well settled that relevant information is discoverable even if not admissible at trial so long as the discovery is reasonably calculated to lead to the discovery of admissible evidence Rule Fed.R.Civ.P Donahay Palm Beach Tours trans Inc F.R.D S.D Fla Discoverability of such information is governed by Rule Fed.R.Civ.P pursuant to which the scope of discovery is broad Donahay supra at and cases cited therein Parties may obtain discovery regarding any matter not privileged which is relevant to the claims or defense of any party involved in the pending action Id Plaintiffs tax returns along with the requested supporting documentation for the six year period are relevant to Plaintiffs damages claims detailed below herein Such information would show Plaintiffs employment and earning history as well as provide evidence as to how Plaintiff has been able to function in her daily life before during and after the alleged incident Was she self-sufficient Was she able to get out of bed each morning and support herself What type of job did she hold Ones ability to earn a Case Document Entered on FLSD Docket Page of Doe Epstein Page No living and be self-supporting has not only a financial component but also an emotional/psychological/mental component In her Second Amended Complaint Plaintiff attempts to allege claims in Count I for Sexual Assault and Battery Count II for Intentional Infliction of Emotional Distress and in Count Ill for Coercion and Enticement to Sexual Activity in Violation of U.S.C.A and seeks damages pursuant to U.S.C a Plaintiff alleges diversity of citizenship as a basis for this Courts jurisdiction 2d Am Complaint I5 Counts I and II are brought pursuant to state law In her complaint Plaintiff alleges that she has experienced confusion shame humiliation and embarrassment and has suffered severed psychological and emotional injuries she has suffered and will continue to suffer severe and permanent traumatic injuries including mental psychological and emotional damages and severe mental anguish and pain She seeks actual Count Ill and compensatory damages 2d Am Complaint and Wherefore clauses In her answers to interrogatories no Plaintiff further states that Plaintiff has suffered severe psychological and emotional injuries including without limitation anxiety anger distorted and disrupted development restlessness distrust self destructive behaviors suicidal behavior substance abuse severe Xanax addiction beginning after her encounter with Epstein corruption of morals antisocial behaviors premature teenage pregnancy loss of normal adolescent ideals loss of innocence lnterrog No In responding to interrogatory no which asked in part for each item of damage claimed Plaintiff objected and stated that discovery is ongoing and will be supplemented in accordance with Federal Rules of Civil Procedure As discussed above the tax returns and supporting documentation will provide direct evidence as to Plaintiffs claimed damages Such information does not only go to Case Document Entered on FLSD Docket Page of Doe Epstein Page No compensatory or actual damages as alleged in the complaint but also her emotional/psychological/mental health type damages Plaintiff did not answer interrogatory no regarding her items of damages as stated above The time period will allow Defendant to compare how Plaintiff was doing in her life prior to during and after the alleged incident To the extent that Plainitff has only held the one job as identified in her answers to interrogatories Defendant is entitled to the tax documents requested Accordingly Plaintiffs objection is required to be overruled and Defendant is entitled to the documents requested to the extent they exists for each of the years Production Requests Nos All photographs movies dvds and videotapes in which you performed sexual acts or simulated sexual acts Response Plaintiff objects to this request as harassing and not reasonably calculated to lead to discovery of admissible evidence Moreover this interrogatory sic is outrageous offensive and is apparently posed for the purpose of intimidating the Plaintiff Any evidence that could conceivably be obtained through this request would not be admissible under Fed.R.Evid Without waiving this objection none to Plaintiffs knowledge All photographs movies dvds and videotapes in which you performed sexual acts or simulated sexual acts in exchange for money or other consideration Response Plaintiff objects to this request as harassing and not reasonably calculated to lead to discovery of admissible evidence Moreover this interrogatory sic is outrageous offensive and is apparently posed for the purpose of intimidating the Plaintiff Any evidence that could conceivably be obtained through this request would not be admissible under Fed.R.Evid Without waiving this objection none to Plaintiffs knowledge All documents reflecting the names and addresses of other individuals with whom you have had sexual activity from January December Case Document Entered on FLSD Docket Page of Doe Epstein Page No Response Plaintiff objects to this request as harassing and not reasonably calculated to lead to discovery of admissible evidence Moreover this interrogatory sic is outrageous offensive and is apparently posed for the purpose of intimidating the Plaintiff Any evidence that could conceivably be obtained through this request would not be admissible under Fed.R.Evid All documents reflecting the names and addresses of other individuals with whom you have had sexual activity from January through November Response Plaintiff objects to this request as harassing and not reasonably calculated to lead to discovery of admissible evidence Moreover this interrogatory sic is outrageous offensive and is apparently posed for the purpose of intimidating the Plaintiff Any evidence that could conceivably be obtained through this request would not be admissible under Fed.R.Evid As set forth above Plaintiff asserted an identical answer in response to request nos and and an identical answer to request nos and Legal Argument Supporting Entitlement to Discovery Sought in Plaintiff does not make a relevancy objection but instead claims that the requests are not reasonably calculated to lead to the discovery of admissible evidence claiming that such evidence would not be admissible under Fed.R.Evid Plaintiff further claims without making any showing in her answer and without moving for a protective order in accordance with Rule and Local Gen Rule S.D Fla that the interrogatory is harassing outrageous offensive and is apparently posed for the purpose of intimidating Plaintiff See Defendants Motion to Compel directed to Plaintiffs Answers to Defendants First Set of Interrogatories addressing identical discovery issues Both Defendants interrogatories and production requests seek information regarding Plaintiffs sexual conduct and history Plaintiff raised the same objections Case Document Entered on FLSD Docket Page of Doe Epstein Page No In her responses to nos and Plaintiff also states that Without waiving this objection none to Plaintiffs knowledge Plaintiffs response is evasive either the requested items exist or do not existed Defendant is entitled to a better response specifically indicating whether the items requested in each of the production requests nos and exist or do not exist are in the possession or control of Plaintiff or some other person that Plaintiff is able to identify and why Plaintiff qualifies her answer of none with the phrase to Plaintiffs knowledge Did such items exist and Plaintiff destroyed or deleted them As to the relevance of the information sought it is well settled that relevant information is discoverable even if not admissible at trial so long as the discovery is reasonably calculated to lead to the discovery of admissible evidence Rule Fed.R.Civ.P Donahay Palm Beach Tours trans Inc F.R.D S.D Fla Contrary to Plaintiffs assertion Rule does not automatically result in a determination that such sexual history and sexual activity/behavior information is never admissible In fact written into the Rule are the procedures to follow in determining when such information is admissible at trial The Advisory Committee Notes to Rule Fed.R.Evid makes clear that the procedures to determine admissibility of an alleged victims/plaintiffs sexual conduct or activity in civil cases does not apply to discovery of such information Rather discoverability of such information is governed by Rule Fed.R.Civ.P pursuant to which the scope of discovery is broad Donahay supra at and cases cited therein Parties may obtain discovery regarding any matter not privileged which is relevant to the claims or defense of any party involved in the pending action Id Case Document Entered on FLSD Docket Page of Doe Epstein Page No Rule entitled Sex Offense Cases Relevance of Alleged Victims Past Sexual Behavior or Alleged Sexual Predisposition provides in relevant part a Evidence generally inadmissible.--The following evidence is not admissible in any civil proceeding involving alleged sexual misconduct except as provided in subdivisions and Evidence offered to prove that any alleged victim engaged in other sexual behavior Evidence offered to prove any alleged victims sexual predisposition Exceptions In a civil case evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim Procedure to determine admissibility A party intending to offer evidence under subdivision must A file a written motion at least days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court for good cause requires a different time for filing or permits filing during trial and serve the motion on all parties and notify the alleged victim or when appropriate the alleged victims guardian or representative Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard The motion related papers and the record of the hearing must be sealed and remain under seal unless the court orders otherwise In confirming that Rule does not control the discoverability of such information the Advisory Committee Notes Amendments state The procedures set forth in subdivision do not apply to discovery of a victims past sexual conduct or predisposition in civil cases which will be continued to be governed by Fed Civ In order not to undermine the Case Document Entered on FLSD Docket Page of Doe Epstein Page No rationale of Rule however courts should enter appropriate orders pursuant to Fed Civ to protect the victim against unwarranted inquiries and to ensure confidentiality Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case and cannot be obtained except through discovery In an action for sexual harassment for instance while some evidence of the alleged victims sexual behavior and/or predisposition in the workplace may perhaps be relevant non-work place conduct will usually be irrelevant Cf Burns McGregor Electronic Industries Inc F.2d 8th Cir posing for a nude magazine outside work hours is irrelevant to issue of unwelcomeness of sexual advances at work Confidentiality orders should be presumptively granted as well Emphasis added In accordance with Rule and Rule the discovery sought regarding any photos movies dvds and videotapes as decscribed in requests nos and and Plaintiffs sexual activity with males as described in nos and including whether she received any compensation or consideration therefore are all relevant to Plaintiffs damages claims and the type of injury she claims she has suffered Defendant has no other means of obtaining such information and obtaining such information through Plaintiff will better protect the confidentiality until the Court can make a determination in accordance with the procedures under Rule whether such information will be admissible at trial See Rule quoted above Defendant will agree to an order keeping the confidentiality of the information obtained through discovery The evidence sought is relevant based on the facts and theories of this action In her Second Amended Complaint Plaintiff attempts to allege claims in Count I for Sexual Assault and Battery Count II for Intentional Infliction of Emotional Distress and in Count Ill for Coercion and Enticement to Sexual Activity in Violation of U.S.C.A and seeks damages pursuant to U.S.C a Plaintiff alleges Case Document Entered on FLSD Docket Page of Doe Epstein Page No diversity of citizenship as a basis for this Courts jurisdiction 2d Am Complaint T5 Counts I and II are brought pursuant to state law In her complaint Plaintiff alleges that she has experienced confusion shame humiliation and embarrassment and she has suffered and will continue to suffer severe and permanent traumatic injuries including mental psychological and emotional damages severe emotional distress and severe mental anguish and pain She also seeks actual Count Ill and compensatory damages for her alleged injuries 2d Am Complaint,,T,T14 and Wherefore clauses In her answers to interrogatory no Plaintiff further states that Plaintiff has suffered severe psychological and emotional injuries including without limitation anxiety anger distorted and disrupted development restlessness distrust self destructive behaviors suicidal behavior substance abuse severe Xanax addiction beginning after her encounter with Epstein corruption of morals antisocial behaviors premature teenage pregnancy loss of normal adolescent ideals loss of innocence lnterrog No In Count II Plaintiff also alleges that Epsteins willful acts of child sexual abuse resulted in mental or sexual injury that caused or were likely to cause Jane Does metal or emotional health to be significantly impaired Plaintiff also alleges that Epsteins scheme involved the use of young girls to recruit underage girls Epsteins plan and scheme reflected a particular pattern and method in the alleged recruiting of girls to come to EPSTEINs Palm Beach mansion and give him massages in exchange for money nd Am Complaint According to the complaint allegations Upon information and belief Epstein has a sexual preference and obsession for underage minor girls T9 The girl would be led up a flight of stairs to a bedroom that contained a massage table The girl would be alone with EPSTEIN Epstein would then perform one or more lewd lascivious and sexual acts including Case Document Entered on FLSD Docket Page of Doe Epstein Page No masturbation nd Am Complaint Plaintiff alleges that in when she was only years old fell into Epsteins trap and became one of his victims I9 Plaintiff alleges that she was recruited to give Epstein a massage for monetary compensation She was brought to Epsteins Palm Beach mansion and was led up a flight of stairs to a room with a massage table Plaintiff was directed by Epstein to remove their clothes and give Epstein a massage Epstein then sexually assaulted Jane during the massage In addition Epstein masturbated during the massage Epstein then paid Jane money The items sought are clearly relevant to the injuries and damages claimed by Plaintiff The nature of her claimed injuries and damages are such that Defendant is entitled to evidence which would show the nature of her relationship with males whether she has suffered other acts of sexual misconduct including exploitation and abuse as alleged in her complaint whether she suffered injury and damages as a result of the other claimed sexual misconduct with males and whether she has willingly or not willingly engaged in sexual activity that has been photographed or filmed by means of movie dvd or videotapes See United States Bear Stops F.2d th Cir Defendant charged with sexual abuse of six year old boy was entitled to admission of evidence relating to victims sexual assault by older boys to establish alternative explanation for why victim exhibited behavioral manifestations of sexually abused child In further support of Defendants motion a copy of Balas Ruzzo So.2d Fla th DCA rev denied So.2d Fla is attached hereto as Exhibit A as it is on point to the discovery issues in this action and the relevancy and Case Document Entered on FLSD Docket Page of Doe Epstein Page No discoverability of Plaintiffs history of sexual activity and any payment therefore See interrogatories and propounded in the Balas case and footnote herein Additionally and significantly in other pending state court civil actions against Defendant EPSTEIN attempting to assert similar claims and damages the Circuit Court Judges have already ruled that such information is discoverable as it is relevant to the damages claims of Plaintiff See Composite Exhibits and hereto Composite Exhibit are the Orders dated February entered in the case of A.C Epstein and Kellen Case No MB Al th Judicial Circuit In and For Palm Beach County State of Florida which granted Defendants motion to compel therein directed to discovery identical to interrogatory no above and to requests for production nos and addressed below herein In the A.C case the Plaintiff answered without objection interrogatories identical to nos and herein Composite Exhibit is a portion the transcript from a March hearing on Defendants motion to compel discovery in the case of Jane Doe II Epstein and Kellen Case No MB AF th Judicial Circuit Court In and For Palm Beach County State of Florida Again the Circuit Court Judge determined that the information sought is relevant to the issue of damages and thus discoverable WHEREFORE Defendant requests that this Court enter an order granting Defendants motion to compel overruling Plaintiffs objections and compelling Plaintiff be to produce the items sought and/or to better respond to the requests as specified In Balas Ruzzo supra the Plaintiffs alleged a multicount complaint including claims for coercion of prostitution pursuant to Fla Stat for battery for the unwanted and offensive touching of petitioners bodies false imprisonment for physically confining the petitioners against their will invasion of privacy and intentional infliction of emotional distress Case Document Entered on FLSD Docket Page of Doe Epstein Page No above Defendant further requests that this Court award his attorneys fees and costs associated with this motion in accordance with Rule Fed.R.Civ.P and applicable Local Rules Rule Certification I hereby certify that counsel for the respective parties communicated by letters in a good faith effort to resolve the discovery issues prior to the firng of this motion to compel Some of the issues were resolved Robert ritton Jr Attorney or Defendant Epstein 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 recor ito dentified on the following Service List in the manner specified by CM/ECF on this day of April Stuart Mermelstein Esq Adam Horowitz Esq Mermelstein Horowitz P.A Biscayne Boulevard Suite Miami FL Fax ssm sexabuseattorney.com ahorowitz sexabuseattorney.com Counsel for Plaintiff Jane Doe Jack Alan Goldberger Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax jagesq bellsouth.net Co-Counsel for Defendant Jeffrey Epstein Respectfully submi By ct ROBERT ITTON JR ESQ Florida Bar rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com Case Document Entered on FLSD Docket Page of Doe Epstein Page No BURMAN CRITTON LUTTIER COLEMAN Flagler Drive Suite West Palm Beach FL Phone Fax Co-Counsel for Defendant Jeffrey Epstein
