Case Document Entered on FLSD Docket Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO 08-CIV-80119-MARRA/JOHNSON JANE DOE NO Plaintiff vs JEFFREY EPSTEIN Defendant I Related cases I DEFENDANTS MOTION FOR RECONSIDERATION AND/OR REQUEST FOR RULE REVIEW AND APPEAL OF PORTIONS OF THE MAGISTRATES ORDER DATED AUGUST DE WITH INCORPORATED OBJECTIONS AND MEMORANDUM OF LAW Defendant Jeffrey Epstein hereinafter Epstein by and through his undersigned attorneys hereby files his Motion for Reconsideration and/or for Request Rule Review and Appeal of Portions of the Magistrates Order DE pursuant to Rule Fed.R.Civ.P Rule Rule and Fed Civ In support Epstein states I Procedural Background This court entered an order DE stating that Epstein must provide responses to interrogatory numbers and sic within days from the date of said order The same ruling was made as to request for production numbers and See DE Case Document Entered on FLSD Docket Page of However Epstein is submitting his motion for Reconsideration and/or Request for Rule Appeal and specific objections with supporting case law only as to Interrogatory Numbers and Responses will be provided as to Interrogatory Number and Request for Production numbers and II Rule Appeal and Review Rule provides in pertinent part that Any party may appeal from a Magistrate Judges Order and such party shall file with the Clerk of Court and serve on all parties written objections which shall specifically set forth the order or part thereof appealed from a concise statement of the alleged error in the Magistrate Judges ruling and statutory rule or case authority in support of the moving partys position The District Judge shall consider the appeal and shall set aside any portion of the Magistrate Judges order found to be clearly erroneous or contrary to law The District Judge may also reconsider sua sponte any matter determined by a magistrate Judge under this Rule a Interrogatory Numbers and Plaintiff served her Amended First Set of Interrogatories on Defendant and Request for Production and Epstein served his responses thereto raising his constitutional privileges and guarantees and in the alternative raising specific other applicable objections See Exhibits A and Plaintiff filed her Motion to Compel DE Epstein filed his Response to Plaintiffs Motion to Compel Answers to Interrogatories and Responses to st and nd Production of Documents and Incorporated Memorandum of Law DE The arguments set forth therein are incorporated herein by reference the Response Memorandum such that a concise statement of the Magistrates error relative to Interrogatory Numbers and may be the focus of this Motion for Reconsideration and/or Rule Appeal and Review Plaintiff filed her Reply thereto at Case Document Entered on FLSD Docket Page of DE Thereafter the Magistrate-Judge entered an order on the above at DE requiring among other things that Epstein respond to Interrogatory Numbers and Interrogatory Numbers and and the Responses thereto provide Interrogatory Number List all time periods during which Jeffrey Epstein was present in the State of Florida including for each the date he arrived and the date he departed Answer Defendant is asserting specific legal objections to the interrogatories as well as his U.S constitutional privileges I intend to respond to all relevant questions regarding this lawsuit however my attorneys have counseled me that I cannot provide answers to any questions relevant to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to effective representation Accordingly I assert my federal constitutional rights nnder the Fifth Sixth and Fourteenth Amendments as guaranteed by the United States Constitution Drawing an adverse inference under these circumstances would unconstitutionally burden my exercise of my constitutional rights would be unreasonable and would therefore violate the Constitution In addition to and without waiving his constitutional privileges Defendant also objects as the interrogatory is overbroad and seeks information that is neither relevant to the subject matter of the pending action nor does it appear reasonably calculated to lead to the discovery of admissible evidence Plaintiffs Complaint alleges a time period of in or about Plaintiffs interrogatory seeks information for a time period from January until present Interrogatory Number Identify all telephone numbers used by Epstein including cellular phones and land lines in any of his residences by stating the complete telephone number and the name of the service provider Response Defendant is asserting specific legal objections to the interrogatories as well as his U.S constitutional privileges I intend to respond to all relevant questions regarding this lawsuit however my attorneys have counseled me that I cannot provide answers to any questions relevant to this lawsuit and I must accept this advice or risk losing my Sixth Amendment right to effective representation Accordingly I assert my federal constitutional rights under the Fifth Sixth and Fourteenth Amendments as guaranteed by the United States Constitution Drawing an adverse inference under these circumstances would unconstitutionally burden my exercise of my constitutional rights would be unreasonable and would therefore violate the Constitution In addition to and without waiving his constitutional privileges Defendant Case Document Entered on FLSD Docket Page of also objects as the interrogatory is overbroad and seeks information that is neither relevant to the subject matter of the pending action nor does it appear reasonably calculated to lead to the discovery of admissible evidence Plaintiffs allegations claim a time period of in or about and involve Defendants Palm Beach residence i The Allegations In the Second Amended Complaint and The NPA The Court also considered various objections set forth in Defendants Response Memorandum See Order at DE Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of The Magistrate Judge also denied interrogatory numbers I and I because those interrogatories sought the names of Epsteins employees or their telephone numbers and thus would furnish a link in the chain of evidence needed to prosecute Epstein of a crime DE Additionally this court denied interrogatory Case Document Entered on FLSD Docket Page of numbers and because those asked Epstein to identify persons or witnesses that have knowledge of the events in question Id at In making the decision the court recognized much like this Motion for Reconsideration and/or Appeal contends that the facts alleged in the Complaints the elements needed to convict Epstein of a crime and the Courts knowledge concerning the cases at issue provide a basis for Epstein to raise the privilege based upon genuinely threatening questions which could furnish a link in the chain of evidence needed to convict Epstein of a crime DE United States Goodwin F.2d th Cir The District Court Judge Court Should Reverse or Modify The Magistrate Judges Order DE Relative to Interrogatory Numbers and Because The Specific Findings Therein Are Erroneous and Contrary to Law i Specific Objections In his Response Memorandum Epstein cites authority supporting his application of the th Amendment Privileges and other constitutional privileges in which he relies upon in objecting to Interrogatory Numbers and In addition to those arguments and objections this court should consider the arguments and objections set forth herein In short the Magistrate Judges Order requires Epstein to answer Interrogatory Numbers and based upon the finding that his objections are so general and sweeping in nature that they amount to a blanket assertion of the Fifth Amendment privilege DE Obviously Epstein objects to such a ruling and provides below detailed reasoning demonstrating the validity of Epsteins objections that answers to the subject interrogatories would realistically and necessarily furnish a link in the chain of evidence needed to prove a crime against him and would require him to Case Document Entered on FLSD Docket Page of provide self-incriminating evidence relative to this case and to the other related cases that could result in a specific hazard of self-incrimination For the reasons set forth below Epsteins justified concern with regard to answering Interrogatory Numbers and and the resulting waiver of his Fifth Amendment Privilege in this regard and/or providing self-incriminating information is substantial real and not merely imaginative Accordingly the District Court Judge should reverse and/or modify the Magistrates Order relative to Interrogatory Numbers and ii Argument and Memorandum of Law By answering Interrogatory Numbers and Epstein is being compelled to testify as to the issues and facts not only asserted in Plaintiffs Second Amended Complaint but also to facts which present a real and substantial danger of self incrimination in this case in other related cases and as well in areas that could result in criminal prosecution Again the information sought all relate to potential federal claims of violations of Here Epsteins whereabouts and telephone numbers are central issues to this case and other related cases Answers to the interrogatories will undoubtedly result in subsequent subpoenas requesting information regarding Epsteins whereabouts and his numbers for his cellular telephones and landlines in ANY of his residences which will obviously reveal the individuals Epstein spoke to and the time and place where the conversations occurred If Epsteins travel to and from Florida is identified and he is compelled to provide his telephone information that information coupled together could subsequently be used to incriminate him and it might be used to prosecute him for a criminal offense See infra In fact providing his telephone information would not only Case Document Entered on FLSD Docket Page of incriminate Epstein on the elements required to establish a criminal offense but in this case it is asking Epstein to incriminate himself by providing information that could lead to the identification of potential witnesses against him Epstein would also be providing information that would later result in documents being subpoenaed and possibly produced relative to his travel itinerary and his telephone records As such Epstein is now being asked to provide testimonial disclosures that would communicate statements of fact by admitting that he did travel to and from Florida on certain occasions and by admitting that he had certain telephone numbers and providers thereby requiring him to admit the very facts upon which Plaintiffs Second Amended Complaint is based i.e presence in Florida at the time of an allegation of misconduct or control of a particular telephone at the time of a claim that the plaintiff was recruited and will inexorably result in leads to further documents such as travel records and/or telephone records that themselves can be predictably used to bolster the criminal-related allegations against Epstein See generally Hoffman United States US U.S Hubbell U.S Case Document Entered on FLSD Docket Page of Case Document Entered on FLSD Docket Page of Significantly this Court sustained Epsteins objections to Interrogatory Number which requested information similar to Interrogatory Number i.e telephone numbers of employees of Epstein used in the course or scope of their employment including cellular phones and land lines in any of his residences by stating the complete Case Document Entered on FLSD Docket Page of telephone number and the name of the service provider DE In short the Court considered the nature of the allegations to wit a scheme and plan of sexual misconduct carried out at Epstein various residences finding it entirely reasonable for Epstein to assert that forcing him to testify as to his employees telephone numbers Interrogatory may provide a lead or clue to evidence tending to incriminate him The Magistrate Judge further reasoned that not only would such compelled testimony self-incriminate him on the elements required to establish a criminal violation and thus serve as a link in the chain of evidence needed to prosecute Epstein for a crime but in some cases serve to incriminate him by asking Epstein to identify potential witnesses against him DE That same reasoning and conclusion should have been reached with regard to Interrogatory Number In addition compelling Epstein to provide the requested information could also lead to or provide a link in the chain of evidence allowing Plaintiff or others to satisfy one or more of the elements Given the nature of the allegations to wit a scheme and plan of sexual misconduct this court should find it entirely reasonable for Epstein to assert his Fifth Amendment privilege as to Interrogatory Numbers and For instance Plaintiff Case Document Entered on FLSD Docket Page of alleges and the Magistrate Judges Order acknowledges allegations of a scheme where Epstein with the help of his assistant Sarah Kellen allegedly lured economically disadvantaged minor girls to his homes in Palm Beach New York and St Thomas with the promise of money in exchange for a massage As this Court noted in its order the fact there exists a Non-prosecution Agreement does not mean that Epstein is free from future criminal prosecution and that in fact the threat of prosecution is real substantial and present Accordingly Epsteins travel to and from Florida and the telephone numbers to his cellular telephones and landlines would provide information which is protected by the privilege i.e where the responses would merely provide a lead or clue to evidence having a tendency to incriminate United States Neff F.2d th Cir cert denied U.S Case Document Entered on FLSD Docket Page of On their face Interrogatory Numbers and may not seem to seek incriminating evidence However after review of the objections and analysis set forth herein it is clear that responding to same would violate Epsteins Fifth Amendment privilege against self incrimination Accordingly forcing Epstein to answer the interrogatories unconstitutionally places him in the position of being compelled to testify and provide information that support Plaintiffs version of the facts and which may lead to future criminal prosecution The Fifth Amendment serves as a guarantee against testimonial compulsion and provides in relevant part that no person shall be compelled in any Criminal Case to be a witness against himself DE In practice the Fifth Amendments privilege against self-incrimination permits a person not to answer official questions put to him in any other proceeding civil or criminal formal or informal where the answers might incriminate him in future criminal proceedings Edwin Price F.2d I I th Cir citing Lefkowitz Turley U.S The privilege is accorded liberal construction in favor of the right it was intended to secure Hoffman United States U.S and extends not only to answers that would in themselves support a criminal conviction but extends also to those answers which would furnish a link in the chain of evidence needed to prosecute the claimant for a crime Id Blau United States U.S Thus information is protected by the privilege not only if it would support a criminal Case Document Entered on FLSD Docket Page of conviction but also in those instances where the responses would merely provide a lead or clue to evidence having a tendency to incriminate United States Neff F.2d th Cir cert denied U.S The Fifth Amendments privilege against self-incrimination comes into play only in those instances where the witness has reasonable cause to apprehend danger from a direct answer Hoffman U.S at citing Manson United States U.S The claimant must be confronted by substantial and real and not merely trifling or imaginary hazards of incrimination United States Apfelbaum U.S Accordingly for these reasons Epsteins objections to the Magistrates Order should be sustained and this Court should enter an order reversing and/or modifying the Order allowing Epstein to assert his Fifth Amendment privilege and not requiring Epstein to provide compelled testimony that might incriminate him Based upon the underlying criminal elements of the targeted offenses answers to Interrogatory Number involving Epsteins travel to and from Florida and Interrogatory Number involving Epsteins use of his telephones could provide a lead or clue to evidence of an alleged violation of any one of the above target offenses which could result in criminal prosecution a breach of the NP A and/or self-incriminating evidence relating to this case and/or to other cases that may result in criminal prosecution Accordingly any compelled testimony that provides a lead or clue to a source of evidence of such a crime is protected by Fifth Amendment SEC Leach F.Supp.2d E.D PA Questions seeking testimony regarding names of witnesses leads to phone or travel records or financial records that would provide leads to tax or money laundering or unlicensed money transmittal investigations are protected Case Document Entered on FLSD Docket Page of See also Hoffman United States U.S the right against self incrimination may be invoked if the answer would furnish a link in the chain of evidence needed to prosecute for a crime In this instance the danger Epstein faces by being forced to testify in this case and on these subject matters is substantial and real and not merely trifling or imaginary Epstein has met his burden to sustain his th Amendment Privilege and has further established that the danger he faces by being forced to testify in this case is substantial and real and not merely trifling or imaginary as required DE Accordingly this Court should reverse and/or revise the Magistrates Order as set forth below Wherefore Epstein respectfully requests that this Court issue and order a finding that the danger Epstein faces by being forced to testify in this case relative to Interrogatory Numbers and is substantial and real and not merely trifling or imaginary sustaining Epsteins Fifth Amendment Privilege as it relates to Interrogatory Numbers and and denying Plaintiffs Motion in that regard reversing and/or revising the Magistrates Order DE relative to Interrogatory Numbers and and entering an amended order sustaining Epsteins objections to the Magistrates Order as to those specific interrogatories and not requiring him to testify as to same and/or remanding this appeal to the Magistrate-Judge for her reconsideration of these portions of her order and for such other and further relief proper By MICHA SQ Florida Bar Certificate of Service Case Document Entered on FLSD Docket Page of 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 that the foregoing document is being served this day on all counsel of record identifi following Service List in the manner specified by CM/ECF on this day of RO CRITTON JR ESQ Florida Bar No rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Flagler Drive Suite West Palm Beach FL Phone Fax Counsel for Defendant Jeffrey Epstein Certificate of Service Jane Doe No Jeffrey Epstein Case No 08-CV-80119-MARRA/JOHNSON Stuart Mermelstein Esq Adam Horowitz Esq Mermelstein Horowitz P.A Biscayne Boulevard Suite Miami FL Brad Edwards Esq Rothstein Rosenfeldt Adler East Las Olas Boulevard Suite Fort Lauderdale FL Fax bedwards rra-law.com Fax ssm sexabuseattorney.com ahorowitz sexabuseattorney.com Counsel for Plaintiffs Counsel for Plaintiff in Related Case No In related Cases Nos Paul Cassell Esq Pro Hae Vice South Room IOI Case Document Entered on FLSD Docket Page of Richard Horace Willits Esq Richard Willits P.A I th A venue North Suite Lake Worth FL Fax Counsel for Plaintiff in Related Case No reelrhw hotmail.com Jack Scarola Esq Jack Hill Esq Searcy Denney Scarola Barnhart Shipley P.A Palm Beach Lakes Boulevard West Palm Beach FL Fax jsx searcylaw.com jph searcylaw.com Counsel for Plaintiff C.MA Bruce Reinhart Esq Bruce Reinhart P.A Australian Avenue Suite West Palm Beach FL Fax ecf brucereinhartlaw.com Counsel for Defendant Sarah Kellen Theodore Leopold Esq Spencer Kuvin Esq Leopold Kuvin P.A PGA Blvd Suite Palm Beach Gardens FL Fax Counsel for Plaint/ff in Related Case No Salt Lake City UT Fax cassellp law.utah.edu Co-counsel for Plaintiff Jane Doe Isidro Garcia Esq Garcia Law Firm P.A Datura Street Suite West Palm Beach FL isidrogarcia bellsouth.net Counsel for Plaintiff in Related Case No Robert Josefsberg Esq Katherine Ezell Esq Podhurst Orseck P.A West Flagler Street Suite Miami FL Fax rjosefsberg podhurst.com kezell podhurst.com Counsel for Plaintiffs in Related Cases Nos and Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian A venue South Suite West Palm Beach FL Fax jagesq bellsouth.net Counsel for Defendant Jeffrey Epstein
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