Case Document Entered on FLSD Docket Page of Doe Epstein Page No Also Defendant has filed simultaneously with this motion a Motion To Compel directed to certain of Plaintiffs Responses to Defendants First Request To Produce also dated January and which addresses identical discovery issues Both motions should be determined at the same time Motion To Compel Answers to Interrogatories Nos and List separately the names addresses and phone numbers of all males excluding Mr Epstein with whom you have had sexual activity since age by year up through your current age Describe the nature of sexual activity the date and whether you received money or other consideration from the person List separately the names addresses and phone numbers of all males excluding your claims against Mr Epstein whom you have claimed formally or informally committed sexual assault or battery on you since age by year up through your current age Describe the nature of sexual assault or battery the date and whether you received money or other consideration from the person State the names addresses and phone numbers of all males excluding your claims against Mr Epstein whom you have claimed formally or informally committed lewd or lascivious conduct to you since age by year up through your current age Describe the lewd or lascivious conduct the date and whether you received money or other consideration from the person State the names addresses and phone numbers of all males excluding your claims against Mr Epstein whom you have claimed formally or informally committed lewd or lascivious exhibition to you since age by year up through your current age Describe the lewd or lascivious exhibition the date and whether you received money or other consideration from the person Plaintiff asserted the identical answer to each of the above stated interrogatories Answer Plaintiff objects to this interrogatory as vague overly broad unduly burdensome harassing and not reasonably calculated to lead to discovery of admissible evidence Moreover this interrogatory is outrageous offensive and apparently posed for the purpose of intimidating the victim Fed.R.Evid makes any answer to this interrogatory inadmissible and nothing in the answer could plausibly lead to discovery of admissible evidence Case Document Entered on FLSD Docket Page of Doe Epstein Page No Legal Argument Supporting Entitlement to Discovery 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 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 Rule entitled Sex Offense Cases Relevance of Alleged Victims Past Sexual Behavior or Alleged Sexual Predisposition provides in relevant part Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 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 Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 Plaintiffs sexual activity with males including whether she received any compensation or consideration therefore in interrogatory no whether she claims other males committed sexual assault or battery on her in no whether she claims other males committed lewd and lascivious conduct to her in no and whether other males committed lewd or lascivious exhibition to her in no 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 Counts I and II are brought pursuant to state law In her complaint Plaintiff alleges that 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,121 and Wherefore clauses In her answers to interrogatory no Plaintiff further states that Plaintiff has sustained mental and emotional injuries including but not limited to depressive episodes anger low self-esteem flashbacks mood swings lack of trust generally and lack of trust of men particularly of older men around her daughter lnterrog No 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 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 masturbation and touching the girls vagina nd Am Complaint Plaintiff alleges that in she then approximately years old fell into Epsteins trap and became one of his victims Plaintiff alleges that she was recruited to give Epstein a massage for monetary compensation She was brought with another girl to Epsteins Palm Beach mansion and were led up a flight of Case Document Entered on FLSD Docket Page of Doe Epstein Page No stairs by Sarah Kellen to a room with a massage table Plaintiff and the other girl were directed to remove their clothes and give Epstein a massage While on the massage table Epstein masturbated and touched both girls on their vaginas Plaintiff alleges that Epsteins actions constitute sexual assault Count I Sexual Assault and Battery The information sought is 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 as alleged in her complaint and whether she suffered injury and damages as a result of the other claimed sexual misconduct with males 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 discoverability of Plaintiffs history of sexual activity and any payment therefore See interrogatories and propounded in the Balas case and footnote herein 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 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 grant his motion to compel and 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 of this motion to compel Some of the issues were resolved Robert ritton Jr Attorney or Defendant Epstein Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 thatthe foregoing document is being served this day on all counsel of reco identified on the following Service List in the manner specified by CM/ECF on thisa ay 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 jagesg bellsouth.net Co-Counsel for Defendant Jeffrey Epstein Respectfully submi By ROBERT ITTON JR ESQ Florida Bar rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Flagler Drive Suite West Palm Beach FL Phone Fax Co-Counsel for Defendant Jeffrey Epstein
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