UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO 08-80736-CIV-MARRA/JOHNSON JANE DOE and JANE DOE Plaintif4.2f4.2s.4 UNITED STATES OF AMERICA Defendant HE EDIA PPOSI4.3T3.6I4.3ON A EMPORARY EAL LEA EGOTIATIONS high profile cases such as this one th ere exists an inevitable tension between the presum8.7ptive right of access to judicial ilings and the parties and intervenor?s rights to the tem8.6porary sealing of a filing in order to pr ovide the Court with a short period to determ8.8ine whether the exhibit in question requires public access or instead whether a sealing of that exhibit in whole or part is justified by good cause See e.g United States McVeigh F3d 10th Cir The a nd public are not entitled to access to all exhibits to filings or even all portions all f4.1ilings instead the court balance the interests the the public and the parties/intervenors Id at Neither tradition nor logic supports public access to inadm8.7i-1.3ssible evidence Access to inadm8.7i-1.3ssi ble evidence is not necessary to understand the suppression hearing so long as the public is able to understand the circum8.8stances that gave rise to the decision to suppress W)9.8h1ile a sealing order result only when the district court specific on the record findings and while such an order be narrowly tailored Id at quoting Press-Enterprise II US the Court is entitled to establish a Case Document Entered on FLSD Docket Page of protocol that allows for it to conduct the appropr iate weighing before not after a pleading or exhibit are filed order tem8.7porarily sealing the plea and se ttlem9e0nt negotiation letters is the only way to protect these conf4.1idential com8.9m8.9unications until the Court can determ8.7ine whether any part the correspondence should be in the public record Je ffrey Epstein and his lawyers have no control over which exhibits the plaintiffs chose to file ith pleadings in this case Mr Epstein is not the f4iling party and has no ability to f4ile a m8.8o1tion to seal before the m8.9a-.1terials are m8.9a0de part of the court record absent the Court ordering a proce dure that tem8.7porarily seals any pleading quoting from8.4 or appending any portion of the plea negotia tion letters pending a m8.7o.9tion to seal based on good cause tem8.6porary seal gives Mr Epstein and his la wyers tim8.5e to be heard before the plaintiffs all the plea and settlem8.8e-.2nt negotiations public Mr Epstein is not seeking to shift the burden of proof as the claim8.5s-.1 are looking only for an opportunity to our burden bef4o1re it is m8.8ooted by an unnecessary partial or wholesale public f4iling of4 the settlem8.8e-.2nt com8.6m8.6unications I A EMPORARY EAL I A PPROPRIATE protective order tem8.7porarily sealing conf3.9iden tial or sensitive m9.2a.2terials is distinct a closed hearing or the sealing of an entire doc ket or even a perm8.8anent sealing of a judicial docum8.4ent absent good cause A tem8.4porary seal of confidential com8.8m8.8unications is a com8.8p1letely appropriate procedural m8.8echanism8.8 perm8.8itting the Court to determ8.8ine whether good cause exists to seal a docum8.7ent without offending the public?s presum8.7ptive right to access judicial proceedings or judicial filing The court tem8.8porarily seal the docum8.8ents while the m8.8o1tion Case Document Entered on FLSD Docket Page of to seal is under consideration so that the issue is not m8.8ooted by the im8.8m8.8e-.2diate availability of the docum8.4ents In re The Knight Publishing Co F.2d 4th Cir The rationale for this seem8.7s obvious For exam8.7ple in considering whether a pleading disclosed grand jury m8.9a-.1terials the Third Circuit held that the district court did not err in initially sealing the m8.4o.6tions and proceedings because when a Cour is faced with a bona fide claim8.7 that m8.7a-.3terial was disclosed in a public filing the Court properly prevents further disclosure by tem8.9porarily sealing the m8.9a-.1terials and preserving the status quo while the parties brief4.1e-.1d the question and the Court brought them8.6 in for a hearing In re Newark Morning Ledger Co F.3d 3d Cir Sim9ilarly Reyes Freebery Fed Appx 3d Cir the Third Circuit ruled that tem8.9porarily restricting disclosure of sens itive inform9ation until a district judge determ9ines its conf4.2idential status can constitute an im9porta nt overriding interest suf4f4i-1.2cient to outweigh the presum8.5ption in favor of access to docum8.5ents in the court file Id at 124-25Because there are circum8.8stances where disclosure would ef4f4ectively nullif4y a claim8.8 of4 privilege or conf4identiality before a hearing on the m8.6e-.4rits can be held a ourt can tem9porarily seal m9a0terials to give the parties the opportunity to resolve their disputes in court without autom8.8a-.2tically destroying the confidentiality of certain inform8.6ation Id Reyes Court em8.5phasized that here the explicit purpose of the sealing order was to a llow the District Judge tim8.7e to reasoned judgm8.9ents regarding the m8.9a-.1terial?s confidential natu re and the privacy concerns of third parties Id at This purpose was an im8.5portant count ervailing interest that was sufficient to outweigh the presum8.4ption in favor of access a nd to justify a tem8.6porary sealing order Id Court concluded Accordingly we believe the te m8.8porary sealing order was justified at the tim8.8e Case Document Entered on FLSD Docket Page of it was issued Id objection to a tem8.6porary seal order is not well founded Because we have no control over what the plaintiffs are filing th only way to give Mr Epstein a m8.4eaningful opportunity to be heard is to require that th ese m8.8a-.2terials be filed under tem8.8porary seal to m9a0intain the status quo The other alternative that perm8.9its an appropriate judicial consideration of whether there is good cause to seal a docum ent would be a procedure requiring that the plaintiffs provide the Governm8.4e-.6nt and Mr Epstein ith copies letters or em8.9ails they intend to file along with any supporting pleading at leas hours in advance of filing to give Mr Epstein an opportunity to file a m8.5o.7tion to seal fi rst Presum8.4ably this filing by Mr Epstein would satisfy the claim8.7 that Mr Epstein shoul be the m8.7oving party bearing the initial burden on a m8.7o.9tion to seal but this procedure would still require that the plaintif4.3f4.3s.5 their f4.3iling tem8.8porarily under seal until the Court rules on Mr Epstein?s m8.8o1tion protective order tem8.8porarily sealing the plea and settlem8.8e-.2nt negotiations does not violate the right of access to court iles Such an order properly m9.1a.1intains the status quo and ensures that Mr Epstein?s rights are not ooted pending an opportunity to be heard on the m8.7e-.3rits Mr Epstein has no other rem8.7e-.3dy to protect against the wrongful filing and disclosure of his conf4.1idential settlem8.9e-.1nt negotiations II HERE I THER EMEDY Citing Federal Trade Comm?n Abbvie F.3d 11th Cir the contends that Mr Epstein?s concerns about abus ive filings by the plaintiffs lawyers are not a basis to issue the tem8.8porary protective order A ccording to the the Eleventh Circuit has previously rejected the argum8.9ent that concer ns about future abusive filings can support a Case Document Entered on FLSD Docket Page of tem8.4porary seal DE at This is not a fair statem8.4ent of the Court?s decision the Eleventh Circuit actually held was that in that case the concerns about abusive filings were purely speculative and not at all present in the circum8.8stances of this case Id at The Court found that there was only a sole xhibit that was publicly filed and that the exhibit had a direct bearing on the issues in the case Id The Court also found that there is not the slightest indication in this record that the docum8.5ent?s inclusion as an exhibit was a tactic by the FTC or that the docum8.5ent wa included solely for tactical purposes Id Court held that Rule sanctions and other pr ofessional sanctions could be an appropriate response to potential future abusive filings a nd em8.4phasized that Solvay does not explain why these protections would be insufficient in an appropriate case Id 2690These statem8.9ents stand in stark contrast to th facts of this case As we explained in our initial response to the Court?s order seeking justification for the tem8.8porary seal there is nothing speculative about Mr Epstein?s concerns that the plaintiffs will publicly file irrelevant conf4.1idential plea negotiation letters recent exam8.9ple is the plaintiffs atte to publicly file as an exhibit a 23-page single-spaced defense negotiation letter after quoting only five or six words from8.6 that letter in a pleading According to the plaintiffs they needed to file this entire letter in the public record to show that Mr Epstein?s lawyers pushed prosecuto rs to agree to a conf4.1identiality provision that illegally kept the non-prosecution agreem8.6ent secret from8.6 the victim8.6s DE at But the page defense letter no mention of4 a conf4identiality agreem8.8ent or any agreem8.8ent to keep the Non-Prosecution Agreem8.6ent secret Indeed th letter was authored m8.6onths before there was a Non-Prosecution Agreem8.2ent and m8.2onths befo re the Governm8.5e-.5nt decided to forego federal Case Document Entered on FLSD Docket Page of prosecution of Mr Epstein response to Mr Epstein?s objections to th is proposed public filing the plaintiffs have adm8.6itted that they do not oppose filing a redacted opy of this defense letter in the public record The victim8.4s would have no objection to only a fe pages the letter being entered into the public court file if the court believes that othe surrounding pages are not required for context DE at But this adm8.1i-1.9ssion did not co until after Mr Epstein filed his objection and showed the unnecessary nature of the plain tiffs proposed filing W9.6ithout a tem8.6porary seal in place a redacted filing of this letter never would have been an option The plaintiffs lawyers would have filed the entire letter in the public reco rd as they initially proposed to do and as they have done in the past with the governm8.4e-.6nt side of the correspondence Mr Epstein described previously and in contrast to the single exhibit at issue in Federal Trade Comm?n Abbvie plaintiffs counsel Mr Edwards used state court civil litigation with Mr Epstein to a holesale dum8.6p into the public record of all of the settlem8.7e-.3nt com8.7m8.7unications sent by the governm8.7e-.3nt to Epstein?s counsel during the federal investigation The com8.6m8.6unications were filed as an exhibit to an exhibit to a m8.8o1tion for judgm8.5ent without regard for the relevance of the governm8.5e-.5nt written com8.7m8.7unications to the issues raised in the m8.7o.9tion Epstein has a principled basis to distru st the decision-m8.6a-.4king as to what docum8.6ents the plaintif4f4s.2 will append to pleadings in this cas The concern is not speculative and it is not lim8.8ited to one docum8.8ent or a single exhibit Good cause exists to issue the additional Protective Confidentiality Order proposed by Mr Epstein Case Document Entered on FLSD Docket Page of I HE CVRA ROVIDES IGHT A CCESS A LL HE EF-4.7ENSE EGOTIATIONS contends that it would have the right to access all of Mr Epstein?s plea and settlem8.6e-.4nt negotiations in this CVRA case because the public is understandably interested in three things the evidence that the governm)8.9e-.1nt cl to have in connection with its investigation of Epstein how the governm)8.7e-.3nt chose to negotiate a just resolution based on that evidence and what the governm)8.8e-.2nt chose to com8.8m8.8unicate to the alleged victim8.8s DE at The contends that these are issues that go to the core of the fairness of our justice system8.8 and that they are m8.8a-.2tters of legitim8.8ate public concern Id CVRA claim8.2s-.4 raised by the plaintiffs provide no right of public access to all the confidential plea negotiations so that the public can question the evidence that the governm8.7e-.3nt claim8.8e-.2d to have in connection with its investig ation of Epstein or how the governm8.4e-.6nt chose to negotiate a just resolution based on that evid ence The Attorney General and United States Attorneys retain broad discretion to enf4o1rce the Nation?s crim8.8inal laws United States Armstrong U.S and whether to ne gotiate a plea or dism8.9iss charges are exclusively the prosecutor?s executive function United States Smith F.3d 11th Cir The CVRA expressly provides that Nothing in this chapter shall be construed to im9.1pair the prosecutorial discretion of the Attorn ey General or any officer under his direction U.S.C em8.1phasis added Thus wh at evidence the governm8.5e-.5nt have had and how the governm8.7e-.3nt chose to negotiate a resolu tion based on that evidence do not overcom8.6e the Case Document Entered on FLSD Docket Page of conf4identiality historically conf4erred to plea nego tiations such that all the settlem9.2e.2nt letters in this case should be public in wholesale fashion Indeed the recognizes that of course com8.6m8.6unications between defense attorneys and prosecutors are not routinely disclosed to the public in a typical crim9inal cas but argues that such com8.6m8.6unication should be publicly disclosed when they becom8.7e-.3 relevant to the fairness of our justice system8.7?s treatm8.7e-.3nt of alleged sexual assault victim8.7s DE at W9.6ithout a protocol authorizing the tem8.6porary sealing of a docum8.6ent containing such com8.6m8.6unications the weighing that even the im8.8plicitly concedes is appropriate cannot occur third stated interest wha the governm8.8e-.2nt chose to com8.8m8.8unicate to the alleged victim8.7s also does not justif3.9y a wholes ale public release all the plea and settlem9e0nt negotiations As stated above a good exam8.4ple of this is the 23-page defense letter that the plaintiffs propose to file in opposition to Profe ssor Dershowitz?s intervention This letter is com8.9p1.1letely irrelevant to what the governm8.9e-.1nt chose to com8.9m8.9unicate to the alleged victim8.9s under their CVRA claim8.5 that they were not consulted before the investigation was resolved be sure the Non-Prosecution Agreem8.5ent is a public record The and the public have access to it and to the term8.8s under whic the governm8.7e-.3nt agreed to resolve this investigation The confidential negotiations leading up to it however should not becom8.6e-.3 a public record sim8.7p.9ly because the plaintiffs chose to attach them8.8 as an exhibit to a pleading filed in this case The Court should issue the suppl em8.9ental proposed protective order and tem8.9porarily seal the settlem9e0nt negotiations a short but xed period to enable the parties and Mr Epstein to f4.2ile a particularized m9o1.2tion to seal and to en able the Court to then rule on whether any portion of the correspondence should be public Case Document Entered on FLSD Docket Page of Respectf3.8u.8lly 2750subm8.6itted 2750BLACK SREBNICK KORNSPAN 2750South 2750Biscayne 2750Boulevard Suite Miam8.5i 2750Florida Telephone Fax s/Roy Black OY LACK SQ Florida rblack royblack.com8.5 ACKIE ERCZ13.6EK SQ Florida jperczek royblack.com8.6 On 2750behalf 2750Jeffrey 2750Epstein 2750Park 2750Plaza Suite Boston Telephone Fax s/Martin W9.2e-.8inberg ARTIN EINBERG SQ Massachusetts On behalf of Jeffrey Epstein CERTIFICATE OF SERVICE HEREBY CERTIFY that a true copy of the foregoing was filed by office via CM/ECF on February s/Roy Black OY LACK SQ Case Document Entered on FLSD Docket Page of
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