UNITED S-5TATES DISTRICT C-4O-4URT SOUT-5HER-4N1 DISTRIC-4T OF FL-5OR-4IDA JANE CA SE NO Pl-3ai-3nti-3ff vs JEFFREY E-5PSTEIN Defendant JANE CA SE NO Pl-3ai-3nti-3ff vs JEFFREY E-5PSTEIN Defendant JANE CA SE NO Pl-3ai-3nti-3ff vs JEFFREY E-5PSTEIN Defendant JANE CA SE NO Pl-3ai-3nti-3ff vs JEFFREY E-5PSTEIN Defendant Case Document Entered on FLSD Docket Page of JANE CA SE NO Pl-3ai-3nti-3ff vs JEFFREY E-5PSTEIN Defendant JANE CASE NO 80993-CIV-MARRA/JOHNSON Pl-3ai-3nti-3ff vs JEFFREY E-5PSTEIN Defendant PLAINTIF-4FS MEMORANDUM IN OPPOSI TION TO EPSTEIN 2S MOTION TO COMPEL RESPONS-5E1 TO FIRS-5T RE QUES-4T TO PRODUCE OVERRULE OBJECTI-7O-3NS AND FOR AN AWARD OF REASONABLE EXP-5E-4NSES 2636Plaintiffs JANE DOES by and through th eir undersigned counsel hereby file this Mem9o1randum9 in Opposition6 to6 Epstein6 Mo6tion to Co5mpel Response to5 Firs5t Request to10 Produce Overrule Objections and for an Award of Reasonable Expenses and state as follows I Introductio6n 2665Defendant Epstein served a Request for Pr oduction which includes Request and requests that seek to unearth all record ings and depictions of every instance of sexual conduct and activity which each Jane Doe m8i-2gh have engaged and docum8ents evidencing the nam8e-1s and contact info6rm8ation of each sexu6al part n6er ov6er th6e pas5t-1 nine years Plain6tiffs properly objected to these Request in that discovery on the se xual history of a childhood abuse victim8 is substantially lim8ited in federal court 223courts should presu6m3ptively iss6u1e prote5ctiv6e Case Document Entered on FLSD Docket Page of orders barring discovery unless the party seeking discovery m8a-1ke a showing that the ev6idenc4e sought to be discovered would be relevant under th facts and theories of the particular case and cannot be obtained except through discovery See Fed Evid Advisory Comm8itte4e4 Notes to Am9endm9ents subdivi sion Defendant has m)8a-1de no such showing in his Motion to C8o-4m9p1el to overcom9e this presum9pti on Accordingly Defendant 2s Motion to Com8pel-7 must be denied in its entirety 2751Defendant also seeks in Request 223all ta returns and supporting docum8entation dating back to Plaintiffs properly objected to th1is harassing and burdensom8e-6 request which is not reasonab6l-2y calculated to lead to adm8i-2ssible ev6iden ce in the present sexual a buse case particularly since Plaintiffs are not m8a-1king a lost wages or lost inco6m9e clai m8 Plaintiffs have already disclosed their entire employm8ent hi story and the request at issue is far b6r4oader th6an n6ecessa5ry to determ8ine Plaintiffs employm8ent or earnings history II Argument Initially it must be brought to the Court 2s attention that E6p stein 2s request for depictions or recordings of the plaintiff engaged in sexual 9or sim8ulated sexual activ ity since the year includes m8a-6terials which are unlawful for anyone to possess particularly a registered sex offender such as Epstein The notion that a re gistered sex offender is seeking child pornography should disturb this Court as m8u ch as it irks the Plaintiffs 2325Epstein incorrectly argues that Fed.R.Evid is strictly an evid entiary rule and that Rule must be read exclusively to determ ine whether infor-6m8ation a bout an abuse victim8 2s sexual h5i-2sto5r-2y is4 dis4c-1ov5erable The Rule A7dvisory Co5mmittee Notes however,5 instruct that Rule affects not o5nly th5e ad m9i-1ssibility6 of evidence at trial bu5t m8ust also5 223inform8 the discovery process Barta City and County of Honolulu F.R.D Haw The Case Document Entered on FLSD Docket Page of Comm9ittee Notes sta5t-1e in re levant part as follows Courts should presum8ptively issue protective orders discovery unless the party seeking disc overy m8a-1kes a showing that the evidence sought to be discove red would be relevant under the facts and theories of 2the particular case a nd cannot be obtained except through discovery 2672Nowhere in Defendant 2s Motion is it explained how or why this presum8ption should be-6 overcom8e It is well established under Fed.R.E vid that a victim8 2s pa st sexual behavior is wholly irrelevant to th credibility of her test imony and that her prior 7and subsequent sexual-7 activ6ity with6 third partie5s has no be-6aring on the issue of whether she consented to or com8p1lied with the sexual acts ch6arged See United States Stone F.2d 5th Cir Virgin Islands Jacobs F.Supp V.I policy of rule disallowing evidence to6 show character of ass5a5ult victim9 Dept of Professiona Regulation So.2d 6(F2la 1st DCA holding that evidence of sexual relations with a pe rson other9 than an accused is not relev6ant One comm)9enta to6r has n6o1ted tha5t-1 once the iden6tity of4 persons5 and sim8ilarity of circum8stances are rem oved 223probative value all but disappears See Ordover Admissibility of Patterns of Similar Sexual Co nduct The U8nlamented Death of Character for Chastity Cornell Rev The di scovery at issue is not lim8ited to sexual contact involving sim8ilar circum8stances and is th erefore lacking in probative value Defendant-7 fails in his Motion to dem8onstrate otherwise Def4endant argum9ent that Rule is m9erely an evide5n1tia5ry rule that shou6ld6 be disregarded in discovery di sputes has been routinely rejected in federal courts See e.g Barta City and County of Honolulu F.R.D Ha-6w granting protective order-7 pursuant to Rule to prevent a sexual battery a nd harassm9ent victim from9 having to disclose off-duty sexual contacts with persons other than defendant in discovery Herron Eastern Case Document Entered on FLSD Docket Page of Industries Inc WL N.D Fla Sept Gibbons Food Lion Inc WL M.D Fla Feb P.J Herchenroeder ohn Hopkins Univ Applied Physical Lab F.RD Md lo oking at both Rule a nd Rule in resolving discovery motion Sanchez Zabihi F.R.D N.M explaining that-7 223although the present motion arises in the cont ext of discovery under Rule the Court m8ust rem8a-1in m8i-2ndful of Rule and its im8plications Stalnaker Km8art Corp WL Kan noting that Rule applicable and has si gnificance in deciding certain10 discovery m8o1tions 60As the above-referenced cases m8a-1ke abundantly clear childhood sexual abuse cases are not garden6-4v1arie5ty litig6ation sub6j-1ec5t to trad6itio nal broad discovery conc erning a victim8 2s sexual history Rule is desi gned to protect victim7s of sexual m9i-1sconduct from9 undue-5 em9barrassment and intr4usion in6to their p6r-1iva5t-1e5 af4f4airs See Fed R.Evid The comm8ittee notes explain that the R8u1le is al so in6tended to prevent 223sexu6al stereotyp6i4ng that is as5sociated with public disclosure of intim8ate sexual details and the infusion of sexu al innuendo into the factfinding process Rule Advisory Comm8ittee Notes to Am9endm9ent-6s Common sense dictates that requiring a sexual abuse victim 4to disclose the intimate details and recordings-6 sought by Epstein during the disc overy process which then would presum8ably lead to additional discovery of the victim 2s other sexual partners would be at least as em8barrassing and intrusive during the discovery process as it wo uld be if the victim8 we re questioned about these facts at trial if not m8ore T3hus in order to carry out its purpose Rule 223m8ust inform8 the-6 discovery process and the Court 223m8ust i-7m8pose certain restriction on discovery to preclude inquiry in6to areas which will cl early fail to satisfy the balancing test set forth in Rule See Barta City and County of Honolulu F.R.D at Case Document Entered on FLSD Docket Page of In Barta the Court con6f4ronted this issue in the context of a discovery motion in a civil case F.R.D at A for-7m8er e-6m8ployee brought a sexual harassme nt and battery claim against her for-6m8er em8pl-7oye and individual employees Id The defendants asked questions at8 deposition which delved into the plainti ff 2s sexual conduct outside the workplace Id at The Court did n5ot allow the4se ques5tions5 and wa it u6n1til tr4ia5l to determ9ine a5d-4m9i-1ssibility.6 Id Instead the Court sustained the plaintiff 2s objections Id The Court based its decision on Fed.R.Evid Id Al-7though noting that Rule controls the adm8i-2ssibility of evidence the Court explained that it must also apply Rule to 223im9p1ose certain restrictions on discovery t9o6 preclud6e in6quiry into6 areas5 which will clearly6 satisfy the balancing te st of b5 Id Thus the Court conc4luded tha4t-2 the def3e-1ndan5t-2s shou6ld n6o1t be pe5rm9itted to inqu6ire into6 the plain5tiff 2s conduct while she was off-duty outside the work6place and w8h1ich did not involve th6e sam8e-1 defendants The sam8e-1 rationale should ap p6l3y here The Defendant s5hould not b6e4 perm8itted to seek intim8a-1te details and recordings of Plaintiff 2s se xual conduct throu ghout her life Defendant attached three Florida state court orders to its Motion two of which are trial court decis5i3ons These cases do no5t serve as preced ent f4o1r this Court a5nd in any ev6ent the5y1 are not persuasive Unlike state courts federal courts m8ust focus on the interplay between Fed.R.Evid and Fed.R.Civ.P and in this regard be concerned with em9barrassment to th6e victim9 and pr otection of her privacy Indee it does not appear that an analogous argum8ent wa-6s m8a-1de in any of the state court cases relied upon by Defendant Furtherm8ore the discovery in Balas Russo So.2d Fla 3d DCA was far narrower tha5n2 that which7 is at issue h7ere It was lim9ited to asking plain7tif5f5s1 f5o2r their employm9ent history which adm8ittedly included p6r-1ostitution em)9ploym9ent records e5l-1e5ctron6ic reco6r4d1ing of4 the conduct which was the subject of the com8plaint and a descripti on of her dam8a-1ges So.2d Case Document Entered on FLSD Docket Page of At no tim8e were the plaintiffs in Balas asked to d6i-1sclos5e the5i-1r4 entir4e sexu6ally history6 beginning at age Id Thus the three s5t-1ate5 co6urt ca5ses c5i-1ted in the5 M5o1tion a5r-1e no6t helpf4u1l to the Defendant and shou5ld not deflect atten5tion5 from9 the bu6rden placed on the p6arty6 in federal court seeking discovery of a vi ctim8 2s other sexual contacts W9ith regard to Request for 223all tax returns and supporting docum8entation the Defendant has not and ca nnot show how these docum)8ents are co nceivably relevant Plaintiffs-7 are not m9aking a claim9 for lost inco6m9e-5 or wages See Exhibit Moreover Plaintiffs have disclosed their entire em9ploym9e nt-7 histo5r-2y an5d agreed5 to execute authorizatio5ns allowing5 Defendant to obtain their em8ploym8ent personnel records Given the nature of the claim involving sexual assault it is in conceivable how the tax returns and and all other 223supporting docum8entation could be relevant Cases in which the plaintiff has been ordered to produce tax return6s is lim9ited to situations invo6lvi ng stock transactions or in which the plaintiff is seeking to recover lost wages lost profits royalty paym8ents or sim8ilar relief See Bellose4 Universal T6ile Resto6r-1ation WL S.D Fla-6 June United States Certain Real Property F.Supp.2d S.D Fla The instant case involving sex ual assault is re5adily distin6guishable a5nd the m9ere filing of a lawsuit does not place all of one 2s incom9e and earnings at issue Further if it is Plaintiff 2s employm8e-1nt hi story or earnings that Defendants are seeking to discov er a request for all 223supporting docum8e-1ntation pertaining to their tax6 re5turns is ov6erbroa and far m8ore-6 burdensome than necessar-3y-1 acqui-3r-3e-2 t-3h-1is inform8ation Finally Defendant 2s request for attorney 2s fees and costs is com8pletely unwarranted The present m8o1tion and response involve good-faith tim ely and well-founded objections by Plaintiffs-6 to over-reaching and harassing discovery efforts Accordingly Defendant 2s request for award of Case Document Entered on FLSD Docket Page of reasonable expenses should be denied Conclusion 2420Based on the foregoing Plaintiffs respectfu lly request that Defendant 2s Motion to Com8pel Response to F6i-2rst Request to Produce Overrule Objections and for an Award of Reasonable Expenses be de nied in th6eir en6tirety Dated May Respectfully6 subm8itted By Adam8 Horowitz 2750Stuart Merm8elstein F7L Bar No ssm8 sexabuseattorney.com Horowitz FL Bar No ahorowitz 6sexabuseattorney.com 2750MERMELSTEIN HOROW9I-2TZ P.A 2750Attorney5s fo6r Plaintiffs Biscayne Blvd Suite 2750Miam8i Florida Case Document Entered on FLSD Docket Page of CER4T1IFI4C4ATE OF S5E6RV4ICE I hereby certify that on May I electron ically filed the foregoing docum9ent with the Clerk of the Court using CM/ECF I also cer tify that the foregoing docum8ent is being served this day6 to a5ll pa5rties on the att ach6ed Service L7i-1st in the m9anner sp ec4if4ied,6 eithe4r-1 via tr4ansm8ission of Notices of Electronic Filing generated by CM/E CF or in som8e-1 other authorized m8a-1nner for-6 those parties who are not authorized to receiv electronically Notices of Electronic F6i-2ling Ada-6m8 Horowitz Case Document Entered on FLSD Docket Page of SERVI-7CE LIST DOE vs JEFFREY EPSTEIN United States District Court Southern District of Flo5r-1id7a Jack Alan Goldberger E6s-1q jgoldberger agwpa.com Robert Critton Esq rcritton bclclaw.com Ada-6m8 Horowitz Case Document Entered on FLSD Docket Page of
