UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO 2750CASE NO 08-CV-80119-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant JANE DOE NO 2750CASE NO 08-CV-80232-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant JANE DOE NO 2750CASE NO 08-CV-80380-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant JANE DOE NO 2750CASE NO 08-CV-80381-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant Case Document Entered on FLSD Docket Page of JANE DOE NO 2750CASE NO 08-CV-80994-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant JANE DOE NO 2750CASE NO 80993-CIV-MARRA/JOHNSON Pl-3ai-3nt-3i-3ff vs JEFFREY EPSTEIN Defendant PLAINTIFFS MEMORANDUM IN OPPOSITION TO EPSTEIN 2S MOTION TO COMP 2635Plaintiffs JANE DOES by and through their undersigned counsel hereby file this Mem9o1randum9 in Opposition to Epstein 2s Motion to Com8p1el Plaintiffs to Answer First Set of Interrogatories and for an Award of Reasonable Expenses and state as fo llows I Introduction 2810Defendant Epstein served an Interrogatory seeking to unearth explicit inf)4o1rm14a5tio6n6 o6n6 every bit of possible sexual conduct and activity in chronological order which each Jane Doe m9i-1ght have engaged in since age including the nam8e-1s and phone num8bers of all persons with whom8 they had sexual contact Plaintiffs properly objected to thes interrogatories in that discovery on Plaintiffs also object to Interrogatory nos and served on each of them8 which seek the identities and contact inf4o1rm9ation of4 any m9en whom Plaintif4f4s1 claim9 com9m9itted sexual assault or Case Document Entered on FLSD Docket Page of the sexual history of a childhood abuse victim9 is subs tantially lim9ited in federa court 223courts should presumptively issue protective orders barring discovery unless the party seeking discovery m9akes a showing that the evidence sought to be discovered ould be relevant under the facts and theories of the particular case and cannot be obtained except through discovery See Fed Evid Advisory Com8m8ittee Notes to Am8endm8ents ubdivision Defendant has m)8a-1de no such s-2howi-3ng Compe-2l-3 ove-2r-3c-2ome-2 t-3h pr-6esum9ption Accordingly Defendant 2s Motion to Com9p1el m9u1st be denied in its entirety II Argument 2504Epstein incorrectly argues that Fed.R.Evid is strictly an evidentiary rule and that Rule m)9u1st be read exclusively to determ9ine whether inform9ation about an abuse victim9 2s sexual history is discoverable The Rule Advisory Com9m9ittee Notes however instruct that Rule af4f4ects not only the adm9i-1ssibility of4 evidence at trial but m9u1st also 223inf4orm9 the discovery process Barta City and County of Honolulu F.R.D Haw The Com)9m9ittee Notes state in relevant part as follows Courts should presum9ptively issue protective orders barring discovery unless the party seeking discovery m9akes a showing that the evidence sought to be discovered would be relevant under the or-4 e-3nga-3ge-3d in lewd and lascivious conduct or exhibition against them9 Unlike interrogatory no which asks for inform8ation regarding all m9en other than Epstein ith whom9 the Plaintif4f4s1 have had sexual activity interrogatory nos are at least lim9ited to crim9inal conduct Nonetheless these interrogatories are overbroad a nd unnecessarily inf5ringe on the P3laintif5f5s1 privacy interests particularly since they seek identity and contact inf4o1rm9ation of4 m9en other than Epstein whom9 Plaintif4f4s claim9 com9m9itted sexual crim es against them9 As discussed inf4r-1a discovery on a victim9 in a case of this nature is tem9p1ered by Fed.R.Evid and as a resu lt a party is not entitled to carte blanche discovery on sexual m9atters involving the victim9 There m9u1st be a balancing of interests based on the discovery sought Here Defe ndant contends that the inform9ation it seeks in interrogatory nos is relevant to Plaintiffs dam9ages claim9s but fails to state in this regard why the perpetrator 2s identity and contact information specifically is relevant and should be discoverable This discovery should not therefore be allowed Case Document Entered on FLSD Docket Page of facts and theories of the particular case and cannot be obtained except through discovery 2671Nowhere in Defendant 2s Motion is it explai ned how or why this presum8ption should be overcom9e It is well established under Fed.R.Evid that a victim9 2s past sexual behavior is wholly irrelevant to the credibility of her testim9ony and that her prior and subsequent sexual activ6ity6 with third parties has no bearing on the issue of whether she consented to or com9p1lied with the sexual acts charged See United States Stone F.2d 5th Cir Virgin Islands Jacobs F.Supp V.I policy of rule disallowing evidence to show character of assault victim9 Dept of Professional Regulation So.2d Fla 1st DCA holding that evidence of sexual relations with a person other than an accused is not relevant 14One com9m9entator has noted that once the identity of4 persons and sim9ilarity of4 circum9stances are rem9oved 223probative value all but disappears See Ordover Admissibility of Patterns of Similar Sexual Conduct The Unlamented Death of Character for Chastity Cornell Rev The discovery at issue is not lim)9ited to sexual contact involving si m9ilar circum9stances and is therefore lacking in probative value Defendant fails in his Motion to dem9onstrate otherwise Defendant 2s argum9ent that Rule is m9erely an evidentiary rule that should be disregarded in discovery disputes has been routinely rejected in federal courts See e.g Barta City and County of Honolulu F.R.D Haw granting protective order pur suant to Rule to prevent a sexual battery and harassm9ent victim9 from8 having to disclose off-duty sexual contacts with persons other than defendant in di scovery Herron Eastern Industries Inc W9L1 N.D Fla Sept Gibbons Food Lion Inc W9L1 M.D Fla Feb P.J Herchenr oeder John Hopkins Univ Applied Physical Lab F.RD Md looking at both Rule and Rule in resolving discovery m9o1tion Sanchez Zabihi F.R.D N.M explaining that lthough the present m12o4tion ar ises in the context Case Document Entered on FLSD Docket Page of of discovery under Rule the Court m9u1st rem9ain m9i-1ndful of Rule and its im9plications Stalnaker Km8art Corp W8L Kan noting th at Rule applicable and has significance in deciding certain discovery m9o1tions 60As the above-referenced cases m8a-1ke abundan tly clear childhood sexual abuse cases are not garden-variety litigation subject to traditional broa d2 d2is1c1o2v2e1ry2 c1o2n2c1e1rn2in2g2 a1 v2ic1tim10 s1e1x2u2a1l h2is1to2ry2.2 Rule is designed to protect victim9s of sexual m9i-1sconduct from9 undue em9barrassm9ent and intrusion into their private af4f4airs See Fed R.Evid The com8m8ittee notes explain that the Rule is also intended to prevent 223sexual stereotyping that is associated with public disclosure of4 intim9ate sexual details and the infusion of sexual i nnuendo into the factfindi ng process R4u2le Advisory Com8m8ittee Notes to Am8endm8ents Com8m8on sense dictates that requiring a sexual abuse victim9 to disclose the intim9ate details sought by Epstein during the discovery process which th en would presum8ably lead to additional discovery of the victim9 2s other sexual partners would be at least as em9barrassing and intrusive during the discove ry process as it would be if the victim9 were questioned about these facts at tria if not m8ore Thus in order to carry out its purpose Rule 223m9ust inform9 the discovery process and the Cour 223m9ust im9pose certain restriction on discovery to preclude inquiry into areas which will clearly fail to satisfy the balancing te st set f6o3rth in R5u3le See Barta City and County of Honolulu F.R.D at In Barta the Court confronted this i ssue in the context of a discovery m9o1tion in a civil case F.R.D at A form9er em9ployee brought a sexual harassm9ent and battery claim9 against her form9er em9ployer and individual em9ployees Id The-5 de-5fe-5nda-5nts asked questions at deposition which delved into the plaintiff 2s sexua conduct outside the workplace Id at The Court did not allow these questions and wait until trial to determ9ine adm9i-1ssibility Id at Instead the Court sustained the plaintiff 2s objections Id The Court based its decision on Fed.R.Evid Id Case Document Entered on FLSD Docket Page of Although noting that Rule controls the adm9i-1ssib ility of evidence the Court explained that it m9u1st also apply Rule to 223im9pose certain restri ctions on discovery to preclude inquiry into areas which will clearly satisfy the balancing test of Id Thus the Court concluded that the defendants should not be perm9itted to inquire into the plaintiff 2s conduct while she was off-duty outside the workplace and which did not involve th sam9e defendants The sam9e rationale should apply here The Defendant should not be perm8itted to seek intim9ate details of Plaintiff 2s sexual conduct throughout her life particular ly if4 it did not involve sim9ilar crim9inal circum9stances such as those involving Epstein De-3fe-3nda-3nt-4 c-3o-2urt orde rs to its Motion two of which are trial court decisions These cases do not serve as precedent fo this Court and in any event they 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 m)8u1st be concerned with em9barrassm9ent to the victim9 and protection of her privacy Indeed it does not a ppear that an analogous argum9ent was m9ade in any of the state court cases relied upon by Defendant Furtherm9ore the disc overy in B3alas R3u1sso So.2d Fla 3d DCA was far narrower than that which is at issue here It was lim9ited to asking plaintiffs for their em9ploym9ent history w10hich adm9ittedly included prostitution em)9ploym9ent records electronic recording of the conduct wh ich was the subject of the com9p1laint and a description of her dam8a-1ges So.2d At no tim8e were the plaintiffs in Balas asked to disclose their entire sexually hi story beginning at age Id Thus the three state court cases cited in the Motion are not helpful to the Defendant and should not deflect attention from8 the burden placed on the party in federal court seeking discovery of a victim9 2s other sexual contacts Finally Defendant 2s request for attorney 2s fees and costs is com8pletely unwarranted The present m9o1tion and response invol ve good-faith tim10ely and well-f5ounde objections by Plaintif4f4s to Case Document Entered on FLSD Docket Page of over-reaching and harassing discovery efforts A ccordingly Defendant 2s request for award of reasonable expenses should be denied Conclusion 2783Based on the foregoing Plaintiffs respectfully request that Defendant Epstein 2s Motions to Com9p1el Plaintif4f4s to Answer First Set of4 Interr ogatories and for an Award of Reasonable Expenses be denied in their entirety Dated May 2750Respectfully subm8itted By Adam8 Horowitz Stuart Merm8elstein FL Bar No ssm9 sexabuseattorney.com Adam8 Horowitz FL Bar No ahorowitz sexabuseattorney.com MERMELSTEIN HOROW8ITZ P.A Attorneys for Plaintiffs Biscayne Blvd Suite Miam9i Florida Tel Fax Case Document Entered on FLSD Docket Page of CERTIFICATE OF SERVICE I hereby certify that on May I electronica lly filed the foregoing docum9ent with the Clerk of the Court using CM/ECF 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 Electronic Filing generated by CM/ECF or in som9e other authorized m9anner for those parties who are not authorized to receive electronically Notices of Elec tronic Filing Adam8 Horowitz 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 Adam8 Horowitz Case Document Entered on FLSD Docket Page of
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