UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO 08-80381-CIV-MARRA/JOHNSON JANE DOE NO Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS 2774Plaintiff by and through undersigned counsel files this Reply Mem8o1randum8 in Support of Motion to Com8p1el Answers to Interrogatories and Production of Docum8e-1nts as follows I Introduction 2810Defendant relies upon generalization regarding th nature of4 the case and the allegations in the pleadings in justifying his assertion of the Fifth Am8endm8ent privilege in response to each and every interrogatory and docum9ent request propounded by Plaintiffs This blanket assertion of the privilege is insuf4f4i-1cient to deny Plaintif4f4s all disc overy in these cases Defendant otherwise fails to set forth any basis for denying Plaintiffs any a nd all answers to its written discovery under the psychotherapist-patient privilege the Federal Ru les of Evidence on grounds of relevance third party privacy rights or other grounds Accordi ngly Plaintiffs respectfully request an Order com9p1elling answers to interrogatories and production of docum9ents Case Document Entered on FLSD Docket Page of II Argument in Reply A 1780Defendant Has Made a Blanket 1250Assertion of the Privilege Against 1250Self-Incrimination That Is Insufficient Defendant Cannot Rely on its Blanket Objections Interrogatories on Fifth Amendment Grounds he-2 not-3 privilege to discovery under the Fifth Am8endm8ent even though he has repeated the identical objection to each of Plaintiff 2s discovery request on this ground The federal courts have noted that the term9 221blanket assertion is not lim9ited to the situation where the defendant m9akes a single response to num9erous questions United States Buaiz W9L1 E.D Tenn Rather as here where the defendant refuses to answer on fifth am8endm8ent grounds each a nd every question such repeated assertions are fairly characterized as a 223blanket assertion Id Capitol Products Corp Hernon F.2d 8th Cir 2652Accordingly it is not sufficient to support the invocation of the Fifth Am8endm8ent with nothing m9o1re than sweeping generalizations applicable to all questions that were a sked in discovery See United States Pierce F.2d 9th Cir cert denied U.S blanket refusal to answer any question is unacceptable 2675Defendant Epstein 2s Response does not set fo rth reasonable cause for a concern of self incrim9ination in response to specific interrogatories It is particularly deficient with regard to interrogatory nos identity of em9ployees who worked or cam9e to Palm9 Beach residence no Defendant 2s presence in Florida no identity of health care providers no persons providing transport services no Epstein 2s tele phone num9bers and no em9p1loyees telephone num9bers Epstein 2s references to allegations of sexual abuse exploitation and battery in the Com9p1laints in this and other civil actions agains him9,1 along with the alleged plan and schem9e of Case Document Entered on FLSD Docket Page of recruiting girls to com9e to Epstein 2s Palm9 Beach m9ansion to give him9 223m9assages fall well short of dem9onstrating that any interrogatory asked of Epstein that is relevant and within the broad scope of Fed.R.Civ.P would realistically and necessa rily f4u1rnish a link in the chain of4 evidence needed to prove a crim9e against him9.1 2725Epstein alternatively points out that there is a 223narrow exception which allows a blanket assertion of4 the privilege where the trial court de term9ines it to be legitim9ate based on the court 2s knowledge of the case and the expected testim8ony United States Goodwin F.2d 5th Cir United States Tsui F.2d 9th Cir This is not a case however where this narrow exception should apply In Tsui the Court allowed a blanket assertion of the privilege only because it was clear that the witne ss would only be questioned about the real estate transactions that were at the heart of his cr im9inal liability concerns and the proponent of the testim9ony argued only that the witness did not have a reasonable fear of prosecution Id at Such unusual circum9stances are not present in the in stant cases Because a blanket assertion of the Fif4t-1h Am9endm9ent privilege is not legitim9ate in th ese cases the Court m9u1st m9ake a 223particularized inquiry and 223only as to genuinely threateni ng questions should the witness 2s silence be sustained Goodwin F.2d at quoting United States Melchor Moreno F.2d 5th Cir 2817Defendant further asserts that Plaintiff 2s interrogatories requesting that he identify em9ployees m9ay lead to evidence tending to incrim9inate him9 because one of his em8ployees Sarah Kellen is identified in the Com9p1laint Defendant Me m8orandum8 DE This does not however support a blanket refusal to answer on Fifth Am endm9ent grounds It does not dem9onstrate how answers to these interrogatories seeking the iden tities of4 all em9ployees who were assigned or cam9e to the Palm9 Beach residence could realistically fu rnish a link in the chain of evidence needed to Case Document Entered on FLSD Docket Page of prosecute Epstein 2510Sim9ilarly the allegations of4 the Com9p1lain ts alone do not reveal the danger of self incrim9ination f4r-1om9 answers to interrogatories seek i-6ng on when Epstein was in the State of Florida who provided transportation services to Epstein his telephone num9bers his em9ployees telephone num9bers and his health care providers Discovery requests that seek background i-2nfor-2m8a-1t-2i-2on or-2 i-2nfor-2m8a-1t-2i-2on on a-1nd of for-5 which he cannot realistically or-3 be-2 be-2 not-3 Fi-3ft-3h Ame-2ndme-2n-1t-3 pr-3otection See Krause Rhodes F.Supp N.D Ohio allowing questions to be asked regarding personal backgrounds and experiences excl uding the event at issue in the pending crim9inal indictm9ent Defendant Has Not Demonstrated That the Act of 2750Producing Documents in Response to Specific Requests 2750Would be Sufficiently Testimonial and Incriminating 2779Defendant Epstein m9akes a general assertion that a response to any of Plaintiff 2s docum8ent requests would entail testim9onial self-incrim9i-1na tion Defendant 2s Response DE pp W10h1ether the act of producing a particular doc um9ent would be sufficiently testim9onial and incrim9inatory to support the Fifth Am9endm9ent pr ivilege against self-incrim9i-1nation is a 223fact dependent inquiry U7n ited S2t-1ates W10u1jkow3ski F.2d 4th Cir It is the burden of the party asserting the privilege to 223explain how the act of produ cing docum9ents would pose a real danger of incrim9ination Bear Sterns Co W10y1ler F.Supp 2d N.D Ill 2690Defendant 2s reliance on United States Hubbell U.S is inadequate In Hubbell it was apparent from9 the breadth of the description of docum9ents dem9anded in the governm9ent 2s subpoena that 223the prosecutor eeded respondent 2s assistance both to identify See Interrogatory nos Case Document Entered on FLSD Docket Page of potential sources of inform9ation a nd to produce those sources Id at In Bear Sterns the Court explained that the facts of Hubbell were unique and do not support a blanket all-encom9p1assing assertion by a witness or party that the produc tion of docum8ents would be testim8onial and incrim9inating To begin with in Hubell the incrim9inatory nature of the production of the docum8ent sought was obvious The respondent was already incarcerated as a result of one inves tigation and he was target of a second Indeed the second investiga tion was directed at whether the respondent was in com9p1liance with a plea agreem9ent-resulting from9 the first investigation-requiring hi m9 to produce inform9ation relating Whi-6t-6ewater investigation If the respondent had produced such inform9ation in response to the subpoena it would have constituted testim9ony that he had W10h1itewater inform9ation that he had not provided-it would be an adm9i-1ssion that he failed to com9p1ly with the plea agreem9ent Accordingly it wa the testim9onial aspect of the production that concerned the Court in Hubbell U.S at S.Ct at At the appe llate court level the court specifically found that respondent 2s acknowledgm9ent of4 the existence of certain records sought in th governm8e-1nt 2s subpoena would be directly incrim9inating Hubbell F.3d at Id at noted by the Court in Bear Sterns a determ9ination that the production of docum9ents would be testim9onial cannot be prem9ised on the witness 2s say so A witness is not exonerated from answering m9erely because he declares that in so doing he would incrim9inate him9self his assertion does not of itself establish the hazard of incrim9ination Id at In Bear Sterns the Court found that the defendant fa iled to m9eet his burden in asserting the privilege against self-incrim9i-1nation in respons to a request for production that included wire transfer records telephone records bank records and records pertaining to specific investm9ent firm9s Id Plaintiffs seek in their docum9ent requests am9ong other things telephone records travel records correspondence and com9m9unications and pe rsonal calendars and diaries The act of producing such records is not a crim9e See id the plaintiff notes it is not a crim9e to m9ake a Case Document Entered on FLSD Docket Page of wire transfer use the phone or possess corporate ecords Defendant Epstein has failed to m)9eet bur-5de-4n of dem10onstrating that the docum10ent reque sts m8a-1de by Plaintiffs in these cases would pose a real danger of incrim9ination As in Bear Sterns the Plaintiff 2s Motion to Com8pel Production of Docum9ents should accordingly be granted Id Defendant Epstein Fails to Demonstrate Why His 2750Invocation of the Fifth Amendment Would Not 2750Warrant an Adverse Interest In These Civil Cases 2805Defendant Epstein does not dispute the general rule that an adverse inference m9ay be drawn in a civil case from9 a defendant 2s refusal to tes tify or respond to discovery by invoking the privilege against self incrim9ination Baxter Palm9igiano U.S He instead asserts that there is a 223recognized exception that applie in a case where the adverse inference is the sole basis f4o1r the plaintif4f4 prim9a f4acie case or will cause the automatic entry of sum8m8a-1ry judgm8ent Defendant 2s Response DE pp Fede ral Trade Com9m9 Transnet W10i-1reless Corp F.Supp 2d S.D Fla This exception plainly would not apply here There are witnesses other than Defendant to th acts and conduct alleged in these cases including Plaintiffs and other victim9s See Transnet W10i-1reless F.Supp 2d at holding that the Court 223will draw adverse inf4erences where a ppropriate in reviewing a m9o1tion f4o1r sum9m9ary judgm9ent light of the m9y1riad evidence presented by plaintiff any event it would be prem9ature at this st age of the case for the Court to foreclo5s4e th5e4 u5s4e of an adverse inference from8 the Defendant 2s invoca tion of the privilege against self-incrim9i-1nation Thi-5s-4 woul-5d in a m10o2tion for sum10m10a ry judgm9ent or a m9o1tion in lim9ine Accordingly based on the foregoing Defendant 2s self-serving asser tion in his discovery responses concerning the drawing of an adverse inference is im9proper and should be rejected and stricken 280Plaintiff Is Entitled to Discovery of Health Care 500Information Requested In Interrogatory No Case Document Entered on FLSD Docket Page of 2745Defendant Epstein argues that Plaintiff 2s In terrogatory no is overbroad because it seeks inform8ation over a ten year period As to Defenda nt Epstein 2s psychological condition particularly any problem9 of a sexual nature ten years is m9o1re than reasonable Any psychosexual condition has likely existed for m9o1st or all of Defendant Epstein 2s adult life 2660Defendant Epstein next asserts Florida 2s ps ychotherapist-patient privilege under Florida Statute As set forth in Plaintiff 2s Moti on the allegations of child sexual abuse in this br-2i-2ng i-2nt-2o pl-2a-1y t-2o ps-1yc-1hot-2he of Florida Statute 105Defendant asserts that this Court is required to hold an in camera inspection of docum8ents to determ9ine as to each docum9ent whether Florida Statute is applicable See Doherty John Doe No So.2d Fla 4th DCA Plaintiff agrees that such an in camera inspection would be appropriate to evaluate whethe the docum9ents relate to allegations of4 child sexual abuse In this regard any notes or records relating to Epstein sexual interests or tendencies produced in an in camera inspection would be relevant and hould be turned over to Plaintiff as falling within the exception of Third Party Privacy Rights Are a Basis to Deny Discovery right to privacy discussed in Eisenstadt Baird U.S has nothing to do with the discovery issues in this case Eisenstadt concerns the distribution of a contraceptive device Yet Defendant relies entirely on Eisenstadt in contending that third party privacy rights provide a basis for Defendant to object to disc overy in this case The vague argum9ent and unsupported assertion raised by Defendant in this cas 223that the privacy rights of third parties are im9plicated is frivolous and m9u1st be rejected 1835Plaintiff Is Entitled In Discovery to Documents 2750Relating to Plea Agreements and Criminal Proceedings Case Document Entered on FLSD Docket Page of 2815Defendant asserts that Plaintiff should not be entitled to receive any docum8ents respo5n5s5iv5e to5 her Request nos for the sole reason that thes docum9ents would not them9selves be adm9i-1ssible under Fed.R.Evid and It is well establis hed that broad discovery under Fed.R.Civ.P should not without m8o1re be lim5ited on the basis of5 adm10issibility at trial See Fed.R.Civ.P Advisory Com9m9ittee Note Rule cove not only evidence for use at the trial but also inquiry into m9atters in them9selves inadm9i-1ssible as evidence but which will lead to the discovery of such evidence The purpose of discovery is to allow a broad search for facts the nam8e-1s of witnesses or any other m9atters which m9ay aid a party in the preparation or presentation of his case Accordingly the fact alone that plea agreem9ents and related docum9ents m9ay not be adm9i-1ssible at trial is not a basis to deny their production in discovery In Cupac Inc Mid-W10e-1st Agency Inc F.R.D S.D Ohio the Court held on these grounds that a party could obtain discovery relating to a crim9inal plea including the answers to questions asked by the prosecutor even though this inform8ation would be inadm8i-2ssible under Fed.R.Evid Any of docum10ents re sponsive to request nos could be addressed in their counsel however should have these docum9ents in discovery An In Camera Hearing May Be Appropriate To Determine 2750Whether Defendant Properly Claims Privilege In 2750Response To Interrogatories And Document Requests 2810Given the fact intensive nature of the inquiry into whether a defendant has m8e-1t his burden in asserting a privilege against self-inc rim9i-1nation som9e courts have conducted in camera ex parte hearings to determ9ine whether assertions of the privilege are valid in each instance See United Plaintiff further notes that her docum9ent request no seeks docum8ents obtained in discovery and investigation of the crim9inal cases not docum9ents pertaining to the plea agreem9ent Accordingly Rules and could not serve as a basis to object to these requests Case Document Entered on FLSD Docket Page of States Duncan F.Supp N.D Ill see also United States W9u1jkowski F.2d 4th Cir hold only that the district court m9u1st undertake a m9o1re careful exam9ination of the docum9ents in question and provide a basis for its findings To the ext ent that this Court is in doubt as to whether to uphold the Defendant 2s privil ege claim9 as to any particular docum9ent request or interrogatory then an in camera hearing would be appropriate I Conclusion 2796Based on the foregoing and for the reasons stat ed in Plaintiffs Motion to Com8p1el Answers to Interrogatories and Request for Production of Docum4e-5nts and Incorporated Mem9o2randum9 of5 Law Plaintiff requests that Defendant Epstein be ordered to answer interrogatories and produce responsive docum9ents Dated April 2750Respectfully subm8itted By Stuart Merm9elstein Stuart Merm8elstein FL Bar No ssm9 sexabuseattorney.com Adam8 Horowitz FL Bar No ahorowitz sexabuseattorney.com MERMELSTEIN HOROW8ITZ P.A Attorneys for Plaintiff Biscayne Blvd Suite Miam9i Florida Tel Fax Case Document Entered on FLSD Docket Page of CERTIFICATE OF SERVICE I hereby certify that on April I electroni cally filed the foregoi ng docum9ent w4ith the Clerk of the Court using I also certify that the foregoing docum9ent is being served this day to all parties on the attached Service List in the m9anner specified either via transm9ission of Notices of Filing generated by CM/ECF or in som9e other authorized m9anner for those parties who are not authorized to receive electr onically Notices of Electronic Filing Stuart Merm9elstein Case Document Entered on FLSD Docket Page of SERVICE LIST DOE vs JEFFREY EPSTEIN United States District Court 2Southern District of Florida Jack Alan Goldberger Esq jgoldberger agwpa.com Robert Critton Esq rcritton bclclaw.com Stuart Merm8elstein Case Document Entered on FLSD Docket Page of
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