Case Document Entered on FLSD Docket Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO 08-CV-80119-MARRA-JOHNSON JANE DOE NO Plaintiff JEFFREY EPSTEIN Defendant Related Cases DEFENDANT EPSTEINS RESPONSE IN OPPOSITION TO PLAINTIFF JANE DOES MOTION FOR MOTION FOR PROTECTIVE ORDER WITH INCORPORATED MEMORANDUM OF LAW Defendant Jeffrey Epstein Epstein by and through his undersigned counsel serves his Response In Opposition to Plaintiff Jane Does Motion for Protective Order DE the Motion With Incorporated Memorandum of Law For the courts ease of reference Plaintiff adopts the arguments set forth in Jane Doe Motion for Sanctions and Motion for Protective Order DE In support Epstein states I Introduction The purpose of Plaintiffs Motion is to among other things prevent Jeffrey Epstein from attending the depositions of the Plaintiff in this matter based upon Plaintiff and her lawyers loose interpretation of certain No-Contact Orders attached below From the outset this Court should note that Jane Doe seeks millions of dollars in personal injury damages and has not filed any affidavits supporting the proposition that Epstein should be precluded from any Case Document Entered on FLSD Docket Page of Page deposition for any reason As such she has not met the exceptional burden of proving to this court that Epstein should be excluded from her deposition Plaintiff adopts and incorporates all of Jane Doe 2-Ss argument with only one additional argument i.e that if this court allows Epstein to attend Jane Does deposition it would violate the right of a state court judge to set conditions of a state criminal judgment Without any supporting language in the No-Contact Orders Plaintiff contends that same preclude Epstein from sitting a few feet away from Jane Doe in a deposition as that would amount to contact This will be addressed infra a The No-Contact Orders The No-Contact Orders are attached as Exhibits and As the Court will recognize the relevant parts of the No-Contact Orders do not specifically state that Epstein cannot attend the depositions of the Plaintiffs that have initiated lawsuits against him seeking millions of dollars Plaintiffs counsel contends that Defendant cannot contact Plaintiffs through third-parties directly or indirectly Taken literally Defendants attorneys cannot depose the Plaintiffs in the civil actions which is obviously not what the No-Contact Orders or any Court anticipated See infra In fact Plaintiffs universally agreed at the June hearing on Defendants Motion to Stay that regular discovery could proceed See Composite Exhibit at pages For instance the court asked Plaintiffs attorneys the following questions The Court So again I just want to make sure that if the cases go forward and if Mr Epstein defends the case as someone ordinarily would defend a case being prosecuted against him or her that that in and of itself is not going to cause him to be subject to criminal prosecution Ex A The Court You agree he should be able to take the ordinary steps that a defendant in a civil action can take and not be concerned about having to be prosecuted Ex A Case Document Entered on FLSD Docket Page of Page The Court Okay But again youre in agreement with everyone else so far thats spoken on behalf of a plaintiff that defending the case in the normal course of conducting discovery and filing motions would not be a breach Ex A Mr Horowitz counsel for Jane Does Subject to your rulings of course yes Ex A The Court But youre not taking the position that other than possibly doing something in litigation which is any other discovery motion practice investigations that someone would ordinarily do in the course of defending a civil case would constitute a violation of the agreement Ex A Ms Villafana No your honor I mean civil litigation is civil litigation and being able to take discovery is part of what civil litigation is all about But Mr Epstein is entitled to take the deposition of a Plaintiff and to subpoena records etc Ex A It is clear from the transcript attached as Exhibit that each of the Plaintiffs attorneys expected and conceded that regular/traditional discovery would take place i.e discovery motion practice depositions requests for records and investigations Moreover Epstein has a constitutional due process right to confront these witnesses including Jane Doe The purpose of the notice rule found under Fla.R.Civ.Pro is clear a party has the right to attend and cross-examine all witnesses with information relevant to the litigation See infra The same applies to Fed.R.Civ.Pro In fact the Court has already ruled DE that Epstein has a right to mount a defense under the Sixth Amendment right to confront witnesses and under the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution Moreover the court recognized that the threat of criminal prosecution is real and present as Epstein remains under the scrutiny of the United States Attorneys Office USAO which is explained and acknowledged in the Courts Order DE Recognizing the foregoing the court has rightfully acknowledged Epsteins due process rights to defend himself Case Document Entered on FLSD Docket Page of Page4 and his constitutional rights to confront witnesses Thus Epstein has a Sixth Amendment right to attend the depositions under the Confrontation Clause of the Federal Constitution Christian Rhode F.3d C.A Ariz See also Coy Iowa U.S S.Ct L.Ed.2d The Clause guarantees the defendant a face-to face meeting with witnesses appearing before the trier of fact Id at S.Ct at This physical confrontation enhances the accuracy of fact finding by reducing the risk that a witness will wrongfully implicate an innocent person Maryland Craig U.S S.Ct L.Ed.2d see also Coy U.S at S.Ct at A witness may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts quoting Chafee The Blessings of Liberty The Confrontation Clause thus gives the defendant the right to be present and to confront witnesses giving testimony during a pretrial deposition where the deposition is intended for use at trial Don Nix F.2d 8th United States Benfield F.2d 8th Importantly there are no minor Plaintiffs in this matter or the related matters All are of age Moroever I McCormick on Evid th ed states in pertinent part that for two centuries common law judges and lawyers have regarded the opportunity of cross examination as an essential safeguard of the accuracy and completeness of testimony They have insisted that the opportunity is a right not a mere privilege This right is available at the taking of depositions as well as during the examination of witnesses at trial Accordingly Plaintiffs request that Epstein be prevented from attending her deposition should be denied See Anderson Snyder Conn A Helfferich Farley Conn.Sup A.2d If this Court excludes Defendant from deposition Plaintiffs deposition Case Document Entered on FLSD Docket Page of Page testimony could be stricken from the record and Plaintiff could be prevented from testifying at trial especially if Plaintiffs position is that Epstein cannot be present at said trial based upon her loose interpretation of the No-Contact Orders This would afford her attorneys an opportunity to point at an empty chair These are court proceedings that Plaintiff instituted and therefore she cannot prevent Epsteins access to the court under the cloak of her allegations Plaintiffs counsel cites Florida Rules of Juvenile Procedure Form in an effort to support Plaintiffs argument by relating an injunction against domestic violence to the No-Contact Orders In short Plaintiffs argument is that an injunction against domestic violence prevents an abusive boyfriend from walking a few feet away from the former girl friend apparently in a public place without the court entering a narrow protective order Plaintiff does not address civil proceedings in her ill-founded analogy Assume a Plaintiff obtains a temporary restraining order TRO on a Defendant or a final judgment of injunction against domestic violence IADV that specifically prevents Defendant from coming into contact with Plaintiff Plaintiff cannot utilize the TRO or the IADV to prevent Defendant from attending court proceedings See Pope Pope So.2d Fla st DCA In fact under Fla Stat a violation of a IADV must be willful and the statute does not address court proceedings as part of any such willful violation because that would obviously violate a Defendants right to access the courts the right to be heard and other fundamental due process rights Using Plaintiffs ill-founded analogy in cases where a final restraining order is in effect factors to be considered in assessing need to exclude or limit a partys participation in a deposition in a pending matrimonial action include history of domestic violence including physical abuse threats and harassment violations of restraining order past disregard of Case Document Entered on FLSD Docket Page of Page judicial process by party sought to be excluded anticipation of misconduct during deposition which would harass alarm or frighten party being deposed partys fear of party sought to be excluded mental and emotional health of parties general security concerns for safety of party being deposed good faith of party being deposed in asking to exclude other party and any other factor deemed relevant by court Mugrage Mugrage A.2d N.J even when it is not appropriate to exclude the other party from the protected partys deposition a protective order can be crafted which would allow the other party to be present under the least restrictive conditions possible In Mugrage although the wife was in fear of her husband and was in good faith in asking that he be excluded and even though she had been the victim of domestic violence in the past as well as protected by an existing order the court concluded that Mr Mugrage had respected the judicial process in the past and almost certainly would abide by the terms of any court order regulating his attendance at the deposition He has not violated past court orders and the court conclude that security concerns for her safety can be addressed in a carefully crafted protective order Therefore Ms Mugrage did not establish sufficient exceptional circumstances to justify excluding Mr Mugrage from her deposition in the matrimonial action Id at Here this court could craft an order without taking exceptional steps to exclude Epstein from deposition including having the deposition at the Palm Beach County Courthouse no speaking out load by Defendant directly to Plaintiff Defendant may confer with his counsel seat positioning and arrival and departure times See id conditions imposed in Mugrage Here Plaintiff has not met her burden establishing exceptional circumstances to preclude Epstein from attending her deposition See Ferrigno Yoder so.2d Case Document Entered on FLSD Docket Page of Page Fla 2d DCA the rules do not contemplate use as a means ofby which one party may gain a tactical advantage the right of a party to be in attendance at deposition is sacrosanct Plaintiffs Disingenuous Arguments Which She Adopts From Jane Doe 2-Ss Motion For Sanctions and Motion for Protective Order DE Plaintiff adopts the absurd and disingenuous argument in paragraph I of Jane Doe Motion By now this Court is familiar with Jeffrey Epsteins practice of intimidating and harassing his victims as well as the Plaintiffs level of fear of Jeffrey Epstein and then goes on to adopt four different motions all filed by Plaintiffs attorneys none of which assert that Epstein has undertaken any action in the civil cases that was not discussed with and approved by all Plaintiffs attorneys including Maria Villafana USAO at the June hearing with Judge Marra and as set forth in the transcript supra and also found to be appropriate as set forth in this Courts recent order DE denying Plaintiffs Motion for Protective Order DE regarding contact of third parties by private investigators retained by Defendant DE and identical pleadings Again in the recent order dealing with Plaintiffs attempt to limit investigators DE the Court stated The Court agrees with Epstein in this instance and finds that limiting Epsteins investigation of the claims asserted against him in the manner as suggested strips from Epstein the ability to mount a defense and as such would violate Epsteins Sixth Amendment right to confront witnesses and the due process clause of the Fifth and Fourteenth Amendment To restrict Epstein in the manner described would result in Epstein having to rely only on those handpicked witnesses disclosed by Plaintiffs in discovery and would thereby prejudice Epstein in mounting his defense to the claims raised against him The Court went on to state in Footnote The Court notes that in reaching the conclusion review and consideration was made of the various declarations filed by the Plaintiffs in support of their Case Document Entered on FLSD Docket Page of Page8 claim that Epsteins investigators were acting in ways which were harassing humiliating to Plaintiffs and/or otherwise designed to intimidate and finds that allegations without foundation Those declarations were made by Jane Does and Rather than allow discovery to take its normal course the Plaintiffs in this case have attempted to control exactly what the Defendant is allowed to do and when he is allowed to do it See A of DE Defendants Emergency Motion To Strike Plaintiffs Motion For Protective Order DE And Emergency Motion To Allow The Attendance Of Jeffrey Epstein At The Deposition Of Plaintiffs And Response In Opposition To Plaintiffs Jane Doe Nos Motion For Protective Order As To Jeffrey Epsteins Attendance At The Deposition Of Plaintiffs all of which Jane Doe adopts in her motion found at DE The Plaintiffs almost universally have objected to past sexual history whether consensual or by force such as molestation or rape although Jane Does through 7s psychiatrist expert Dr Kliman had Jane Does through complete detailed questionnaires including past sexual history and then interviewed them on tape about their past sexual history and its impact in the cases sub judice These documents were subpoenaed Defendant and his attorneys have reviewed them Plaintiffs argue a different standard to apply to them versus the Defendant by virtue of their allegation in their respective complaints However at this juncture they are just that allegations Almost all of these Plaintiffs have significant past psychological psychiatric sexual abuse molestation rape etc as well as criminal arrest and/or convictions completely umelated to Epstein The Court entered an order DE specifically addressing these types of issues in addressing Defendant Epsteins Emergency Motion for Independent Medical Examination and Plaintiff C.M.A.s attempt to limit the exam Jane Doe has apparently taken a Case Document Entered on FLSD Docket Page of Page position different from that already entered by this court in that she too has objected to the independent medical examination Nonetheless the Court stated in that order Plaintiff cites no case law and independent research has uncovered none to support her novel position that a Plaintiff who puts her mental emotional and psychiatric state at issue can place a limitation on the number of times defense counsel or agents retained by him can inquire into areas relevant to these issues where the subject matter involve is highly personal embarrassing sensitive or otherwise humiliating As such Plaintiffs adopted argument fails Plaintiff is seeking millions of dollars in personal injury damages for among other things physical injury pain and suffering intentional infliction of emotional distress psychological trauma mental anguish humiliation embarrassment loss of self esteem loss of dignity and invasion of privacy etc The Court noted under these circumstances where Plaintiff is seeking to recover medical expenses associated with these complex medical issues full knowledge of Plaintiffs past and present medical psychological familial and social history is essential The Court granted the Defendants Emergency Motion for Independent Medical Exam in accordance with that order Additionally Plaintiff Carolyn Andriano sought to limit the scope of her medical examination as set forth in paragraph above and further sought to assert a conditional reliance so as to prevent any and all discovery related to her current and past medical and emotional state DE Case No This Court rejected the conditional reliance DE Case No Now Jane Doe just as all the other Jane Does seeks to prevent meaningful discovery in this case by the Defendant or to dictate to the Defendant and this Court how discovery should be conducted Federal Rules of Civil Procedure be damned Plaintiff wants Case Document Entered on FLSD Docket Page of Page the Defendant to jump through all sorts of hoops in order for his attorneys to obtain routine discovery while they continue to try their cases in the media which serves only to prejudice Epsteins right to receive a fair trial Now they wish to strip him of his constitutional and due process rights to defend these cases The Defendant is being required to defend these cases on Plaintiffs terms and only when this Court or the state court judge intercedes is the Defendant allowed to proceed with what would be customary reasonable necessary and allowable discovery This Defendant is being denied his constitutional right to confront his accuser He is being denied fundamental discovery The Plaintiffs adopted assertion that the court should appoint a special master to preside at the Plaintiffs deposition and control the proceedings and for the Defendant to pay the special masters fee is not only groundless but is absurd The Plaintiffs attorneys continue to try this case against Mr Epstein in the media They are the grandstanders the first ones with the comments opinions and release of confidential information Yet they seek anonymity for their clients and complete control over discovery in this case It is this Court which exercises and directs the parties how discovery will take place not Jane Doe or any other Jane Doe nor the Defendant WHEREFORE Jeffrey Epstein moves this Court for an order denying Jane Does Motion for Protective Order entering an order allowing Epstein to appear at her deposition and to the extent Jane Doe adopted Jane Doe Motion for Sanctions denying that as well and for such other and further relief as this court deems just and be Critton Jr Mic ell Pike Attorneys for Defendant Epstein Case Document Entered on FLSD Docket Page of Page Certificate of Service 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 identified on the following Service List in the manner specified by CM/ECF on this Jd_ day of 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 Fax ssm sexabuseattorney.com ahorowitz sexabuseattorney.com Counsel for Plaintiffs In related Cases Nos Richard Horace Willits Esq Richard Willits P.A th Avenue North Suite Lake Worth FL Fax Counsel for Plaintiff in Related Case No reelrhw hotmail.com Jack Scarola Esq Brad Edwards Esq Rothstein Rosenfeldt Adler East Las Olas Boulevard Suite Fort Lauderdale FL Phone Fax bedwards rra-law.com Counsel for Plaintiff in Related Case No Paul Cassell Esq ProHac Vice South Room 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 Case Document Entered on FLSD Docket Page of Page Jack Hill Esq Searcy Denney Scarola Barnhart P.A Palm Beach Lakes Boulevard West Palm Beach FL Fax isx 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 Plaintiff in Related Case No Shipley Robert Josefsberg Esq Katherine Ezell Esq Podhurst Orseck P.A West Flagler Street Suite Miami FL Fax riosefsberg podhurst.com kezell podhurst.com Counsel for Plaintiffe in Related Cases Nos and Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax jagesg bellsouth.net Counsel for Defendant Jeffrey Epstein Counsel for Plaintiff in Related Case No skuvin riccilaw.com tleopold riccilaw.com By RO ERT CRITTON JR ESQ Florida Bar No rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Banyan Blvd Suite West Palm Beach FL Case Document Entered on FLSD Docket Page of Page Phone Fax Co-Counsel for Defendant Jeffrey Epstein
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