UNITED DISTRICT DISTRIC-4.1T-.3 OF CASE NO JANE DOE NO vs JEFFREY E-5PSTEIN Defendant Related PLAINTIFFS JANE DOES MEMORANDUM IN RESPONS-4.5E1.3 TO RUL-3.7E APPEAL 2550Plaintiffs Jane Does Plaintif8.1fs by and through undersigne counsel file this Mem7.9o.1randum7.9 in Response to Defendant?s Rule A ppeal of the Magistrate Judge?s Orders DE and DE directing Defendant to produce his tax returns as follows Introductio5.6n Defendant appeals th5.6e Magistrate Judge?s Ord5.5e-.7rs DE and DE Defendant to produce incom8.1e-.9 tax returns and related form8.1s schedules He fails however to dem8.8onstrate4.8 that the Ma4.8gistr4a-.2te4.8 udge?s decision as to tax returns is clearly erroneous4.4 or con5.2t-2rary to law The applicab5.9le case law establish5.9e-.3s that the tax retu5.9rns are not protec4.7ted discover3.9y5.9 by the Fifth privilege un der the act of production doctrine or alternativ ely that they fall within the records5.1?-.3 ex5.9cepti on to the Fifth Am8.6endm8.6ent privilege The tax returns are in5.9disputab5.9ly in these cases particularly as to Plain5.4t3.2iff?s claim8.5s-.1 punitiv5.7e damages and given the Def3.7e-.5ndant?s4.9 inv5.7o.7cation the Amendm8.5ent Case Document Entered on FLSD Docket Page of blanket fashion to all requests f4o1r net wor4t-1.2h d6i-1.2scovery,6 th6ere is a co6mpelling n6e4.8ed f4o1r th6is discovery Even if Plaintiffs could not dem8o.2nstrate a compelling need for the tax returns in discovery under applicable Elev5.4enth Circuit pr ecedent and reported cases in this District Plaintiffs would be entitled to this discovery under the broad relevance standard of Fed Civ Finally there is no basis to delay this discove5ry6.2 as the tax6.2 returns relevan6.2t-1 to punitiv6e which is an im8.8portan6t-1.2 cur4r-1e4.8n1t is sue in these ca4.4ses For the4.4 rea4.4s4.8ons set f3.6o.6rth herein Plaintiff?s request that the Magistrate Judge?s Orders as to Defendant?s tax returns be affir-6.7m8.1ed and that Defendant be ordered to produce the tax return di scovery requested by Plaintiffs Argument I HAS B-3.6URDEN SHOW THAT MAGISTRATE ORDER IS RRONE-3OUS OR CONTRARY TO LAW seeking reversal of the Magi strate Judge?s Order as to discovery of tax returns it is the Defendant?s burden to show that the order is cl early erroneous or contra ry to law?.6 U.S.C Absent such a showing the Magistra te Judge?s decision sha ll not be disturbed Emm8.3i-1.7sive Energy Corp Novatac Inc WL S.D Fla In the instant)7.5 appeal Defendant has not shown that the Magist rate Judge?s Order to produce tax returns is clearly erroneous or contrary to law II ACT OF PRODUCTION TAX RE-4.2TURNS IS NOT 2750PROTECTED BY FIFTH AMENDMENT PRI-6.3V1.7ILEGE Plaintif8.6fs served the following docum8.4en request in discovery to which Defe-5.8ndant asserted th6.1e Fifth Am8.9endm8.9ent privilege Request No All F7.4e0dera5l and State income tax r4.2e0turn6.2s includ6.2ing6.2 all and schedules for tax years The Magistrate Judge rejected th Defendant?s privilege assertion as to tax returns pp In so holding th Magistrate Judge applied the act of production doctrine set forth in Case Document Entered on FLSD Docket Page of Fisher United U.S and United States Hubbell U.S As noted by the Magi strate Judge Defendant cannot reasonably and in good faith argue that producing these documents to Plain tiff he will be incrim8.3inating him8.3s-.3elf Order Yet Defendant argues just that In Hubbell the Suprem7.5e Court made express reference to tax returns in discussing docum7.7ents that cannot be protected by the F6i-2.4fth privilege under the act of production doctrine The fact that incrim8.4inating evidence be the byproduct of obedience to a regulatory requirem8.2e-.8nt such as filing an income-6.3 tax return m8.1a-.9intaining required records or reporting an accident does not such6.6 required conduct with the te4.2stimonial privilege U.S at U.S at footnotes om8.3itted em8.3phasis supplied Accord United Hammes F.3d 7th Cir we reject defendant?s com7.8pulsory self incrim8.5ination claim8.5 because th5.7e go5.7vernm8.5e-.5nt ma use vo5.8lu5.8ntarily filed5.8 tax retu5.8rns5 agains5t defendant without violating the Fifth Am8.5endm8.5ent See also Garner United States S.Ct U.S holding that disclosu res in tax returns are not com8.8p1elled incrim8.4inations and be used as evidence in crim7.6inal prosecution Ebay Inc Digital Point Solutions,5.8 WL N.D Cal holdi ng that a person ca nnot incrim8.5inate him8.2s-.4elf by t-6.8u.4rning over a docum8.2ent already in the governm8.2e-.8nt?s possession Federal Savings and Loan Ins Corp Hardee Supp N.D Fla holding that personal incom8.4e-.5 tax return5.5s and supportin5.5g.5 schedules are no5.5t pro5.5t ected the act of pro5.1duction do5.1ctrine under Fisher an altern5.7ative4.5 to the Fi fth Am7.9endm7.9ent privilege does not apply because the act of producing docum8.5ents is not testim8.5oni al and communicative courts have invoked the required records ex5.4ception to th act of production doctrine See Federal Saving Loan Ins Corp Rodrigues Supp N.D Cal required records exception is Case Document Entered on FLSD Docket Page of distinct basis to deny Fifth Am8.5endm8.5ent privil ege alternative to the foregone conclusion?-6.2 rationale under Fisher The required reco5.5rds exception de5.1f4.3eats the5.1 Am9.1endm9.1ent pr4.3ivilege where because of the public aspect of the required records the ind5.7i-1.5vidual adm its little of significance by their production and by doing business in an area where the governm8.2e-.8nt requires record an be deem8.6ed to have waiv5.8ed the F7i-1.4fth privilege as to the production of those records In re Grand Jury Subpoena F.3d 8th Cir 2635Defendant contends that the required reco rds exception does not apply to tax returns because they cannot be accessed the public This is wrong however as the required5.1 records5.2?-.2 ex6ception requ6ires on6ly th6at there be public aspects to the doc um8.9ents at issu6.1e Id Num8.2e-.8rous courts that have addressed this precise issue have found that tax returns have public aspects4.4?-1 See Rodrigues Supp at citing cases acco)5.1rd Doe United States F.2d 2d Cir Accordingly the req5.9uired reco5.9rd5.9s exception5.9 applies the production of tax returns In Rodrigues the Court denied the Fifth privilege for the act of producing tax returns under the required records excep tion noting that records filed with a public body pursuant to a valid regulatory sche ha-6.1ve been held to have public aspects Id at Accordingly the fact that federal tax returns cannot be accessed by the general public does not aid the Defendant Accord Resolution Trust Corp Lopez Supp D.D.C there are two alternativ grounds for holding that Defenda asse4.9rtion6.1 the privilege to production of tax returns is invalid the tax returns are in the Defendant further appears to argue that the equired records exception should be lim8.1ited to highly regulated business e.g physicians citing In re Dr John Doe F.R.D S.D.N.Y In Dr John Doe however the Court held contra ry to Defendant?s assertion and consistent with the case la cited herein stating we agr ee that of these records e.g and other tax form8.3s may indeed fall wi thin the req5.7u.7ired record5.7s exception.5.7 Id at ordering that Dr Doe com8p.2ly with subpoena for Case Document Entered on FLSD Docket Page of possession of the governm8e-1nt their existence is a foregone conclusion and there is no risk of im8.1p.3licit authentication by De-5.9fendant?s production of these docum8.6ents or tax returns fall within the required re4.7cords ex5.9ce4.7ption to th act of production doct rine and are thus not protected by the Fifth A7.6m8.2endmen Under either of these gr ounds the Defendant?s tax returns are not privileged and m8u.2st be produced in discovery II IS NO HEIGHTENED BURDEN DISCOVERY TAX RE-4.1TURNS 2650.9Defendant asserts that there is a heighten ed burden on a party seeking discovery tax returns requiring that party to show not only re levance but also that a com8.8p1elling need for the tax retu5.8rns exists becau5.8s5e-.4 the information containe therein is not otherwis available Appeal However in the Eleventh Circuit this heightened burden has been rejected The Eleventh Circuit does not require a showing of com8.7p.9elling need before tax inform8.7ation obtained by a party in disc overy Bellosa Universa Tile Restora4.6tion,5.8 Inc WL S.D Fla citing Maddow Procter Co F.3d 11th Cir accord U.S Certain Real Property F.Supp 2d Platypus W)9.7ear Inc Clarke Modet Co S.D Fla Pr eferred Care Partners Holding Corp Hum8a-1na Inc WL S.D Fla Rusk in Co Greenheck Fan Corp S.D Fla Signi ficantly in both P6r-2.2eferred Care and Ruskin the Court affir-6.4m8.4ed the decision a Magistrate Judge re jecting a higher standa rd for production of tax returns holding that despite an argu5.8able sp5.8lit author3.8ity the Magistrate Judge?s decision was not contrary to law Id Likewis4.7e-.7 the Mag5.5i3.3strate Judge?s decision in this case com8.3p.5elling Defendant relies upon Pendlebur Starbucks Coffee Co S.D Fla and Dunkin Donuts Inc Mary?s Donuts Inc WL S.D Fla in which the Court applied the higher stan dard These cases do not cons opinion in Maddow and the federal judges in this Dist rict over the past five years since Pendlebury have consistently reject ed the compelling need standard for production of tax return5.9s See cases cited above Case Document Entered on FLSD Docket Page of production of tax returns is consiste nt with authority in this District and the Eleventh Circuit and thus should be affirm8.6ed 1335EVIDENCE OF DEFENDANT?S FINANCIAL AND HISTORY IS REL-3.8E1.2VANT 2750PUNITIVE-3.3 DAMAGE-3.3S.9 AMONG OTHER ISSUES 2625Defendant does not go so far as to contend th at the discovery of hi tax returns is not relevant under Fed.R.Civ.P Defendant only argues that the Ma gistrate Judge did not address the relevancy standard in her Or der Appeal As a result Defendant does nothing to show that the Magistrate Judge?s Or der as to tax returns is clearly erroneous or contrary to law In any even5.9t it is abun5.9dantly that t?s financial status and history are relevant to punitiv6.2e da5m9a0ges am9ong other4.2 thes5.4e5 cases,6.2 and in th6.2is rega5rd the5 Def4.2e0ndant?s5.4 tax6.2 returns are pertinent and discove rable Tennant Charlton So.2d Fla holding that pa4.6rty obtain tax re4.6turns5 purpos5es net worth discov5.8ery on is5su5.8e punitiv5.8e dam8.6a-.4ges See also State O?Malley 3d Mo App i is well settled that when a seeks5 punitive against a def3.8e4.6ndant evid5.8ence the4.6 financial status is both relev6.2a0nt and6.2 adm9i-1ssible5?0 Inters)5.4ta te Narrow F6.2a-1.2brics Inc Century USA Inc M.D N.C holding that tax returns ar relevant to the jury?s determ8.7inatio5.9n of the am8.7ount of pun5.9itiv5.9e dam8.7a-.3ges award5.5 Lavino Co Universal Health Services In5.4c WL E.D Pa m7.8ost co urts that have considered this issue th5.9at a seeking punitiv dam8.6a-.4ges discove4.6ry inf3.8o.8rm8.6ation perta4.6i-1.4ning to a defendant?s net worth 2556.7Defendant further argues that he should not have to produ ce his tax returns until it becom8.3e-.7s apparent that punitive will be an issue Appeal,5.5 This argum)8.3ent ignores4.6 Florida law on punitiv5.4e dam8.2a-.8ges It is well estab5.3lished5.3 that punitive dam8.1a-.9ges are always reco5.8verable in intentional to6rt ca4.8ses whe4.8r-1e m8.8a-.2lice is one of the essential elem7.8ents of Case Document Entered on FLSD Docket Page of tort Ciam8.1ar Marcay Inc Monteiro Da Costa So.2d Fla 3d DCA em8.4phasis supplied In Florida it is clear th at an act of4 intention6a-.2l assault a4.8nd battery comm8.2itted without legal jus4.6tificatio5.4n supplie of Joab Inc Thrall So.2d Fla 3d DCA Therefore it is clear in th is intentional tort case that punitive dam8.1a-.9ges are an issue As this Court knows Defendant Ep stein is alleged to have perpetrated a plan and schem8.2e-.8 to sexually m8.2o.4lest dozens of underage teenage girls assuming that the com8.6p.8elling need stand5.8a-.4rd were ap5.8plicab5.8le for discovery of tax return6.3s clea5.1rly in this ther4.3e is a com8.3p.5elling need De-5.7fendant has provided no net worth discovery asserting a blanke Fifth privilege Defendant nonetheless contends that there ex5.7ists an alternative not to discovery the necessary inform8ation but thro5.2ugh his offe-6r to to a net worth in th6e nine f4i-1.2gures Of course a stipulation requires the consent of the par4.1ties and there no agreement in th6.1is case on the Defendant?s net worth Defendant cannot unilaterally by fiat claim8.1 a certain net worth for purposes of trial The law is well established that a jury de termine punitive by ex acting from8.3 the defendant?s8.5 pocketbook5.5 a sum8.3 of m8.3oney which accord5.5ing to f8.5i-1.7nancial ability,5.5 will hurt but not Defendant?s reliance Gallin a Comm8.4erce and Industry Ins WL M.D Fla is m)8.4i-6.6splaced Gallina is an insurance bad faith case and does not involve a claim8.5 of punitiv6e against an6 in6tentional tortf4eas5.2or the4.5 pre4.5s-.1ent case4.5 it would no sense to have a different stage punitive dam8a-1ges discovery or trial The burden to id5.3entify an altern5.3ative source the inf3.6o.6rmation lie4.4s with the res4.8i-1.6sting party.?4.5 Inter3.6s-.2ta4.4te Narrow Fabrics WL at Here Epstein?s blanket Fifth privilege assertion to all net worth discovery kes it clear that th5.8ere is5 a com8.6p.8elling need any net worth discovery not protected by the Fifth privilege Defendant relies upon Myers Central Florida Investm8.1e-.9nt Inc F.3d 11th Cir for its stipulation argum)8.3ent In Myers however the district court heard testimony regarding each of the de-6fendant?s net worth Th ere was no unila4.8tera4.8l statem8.8ent of4 net worth in Myers as Defendant wishes to create in the ins4.7t-1.7ant cas4.7e To the extent that Defendant relies4.7 upon the Court?s holding in Myers regarding the reasonableness of the tria5.1l awa5r-.8d of punitiv5.8e the issue r3.8easonablene4.6ss is by the and circum8.5stances of the cas4.9e and the in Myers of this issue has no relevance here Id Case Document Entered on FLSD Docket Page of bankrupt Joab Inc Thrall So.2d Fla 3d DCA em7.8phasis supplied Plaintiffs are therefore entitled to discovery on the Defendant?s re net worth so th5.8at th5.8e ju5.8ry will be in a position6 to an award that will hurt any event it seem8.2s beyond dispute that Defendant?s tax returns are relevant and discoverable either under a straight relevance test under Fed.R.Civ.P or a heightened com8.1p.3elling need standard Conclusion 2645Based on the foregoing the Magistrate Judge?s Orders as to Defe ndant?s production of tax returns in response to Plaintiffs docum8.2ent request no are not clearly erroneous and not contrary to law a result the Magistrate udge?s Orders as to production of tax returns should be affirm8.7ed Plaintiffs respect fully request that the docum8.2ents responsive to P6.4l-2aintiffs docum8ent request no be ordered to be produced forthwith Dated May 9001Respectfully5.5 subm8.3itted By Stuart Merm8.6elstein5.8 Stuart Merm8.3elstein Bar No ssm8.5 sexabuseattorney.5.7c-.5om Horowitz FL Bar No ahorowitz 6.3s-.4exabuseattorney.com MERMELSTEIN HOROW9.1I-1.7TZ P.A Attorney4.5s fo5.7r Plaintiffs Biscayne Blvd Suite Miam8.3i Florida Tel Fax Case Document Entered on FLSD Docket Page of CERTIFICATE OF hereby certify that on May I electr onically filed the foregoing docum7.9ent with the Clerk of the Court using CM/ECF I also cer tify that the foregoing docum8.4ent is being served this day5.8 to a4.6ll pa4.6rties on the att ach6.3ed Service in the m9.1a.1nner sp via tr3.6ansm8.4ission of Notices of Electronic Filing generated by CM/E CF or in other authorized m8.3a-.7nner those parties who are not authorized to receiv electronically Notices of Electronic F6.4i-2ling Merm8.2elstein Case Document Entered on FLSD Docket Page of SERVI-7.5CE LIST DOE vs JEFFREY EPSTEIN United States District Court Southern District of Jack Alan Goldberger jgoldberger agwpa.com Robert Critton Esq rcritton bclclaw.com Bradley Edwards bedwards rra-law.com Isidro Manu5.9el Garc4.7ia isidrog6.2a0rc5ia5 bellsou6.2th.6.2n1.2et Jack Patr4ick Hill jph searcylaw.com Katherin6e W4.8a-.2rthen Ez4.8ell KEzell podhurst.com Michael Pike MPike bclclaw.com Paul Cassell cassellp law.utah.edu Richard Horace W9.5illits lawyerwillits aol.com Robert Josefsberg rjosefsberg podhurst.com Case Document Entered on FLSD Docket Page of
