Case Document Entered on FLSD Docket Page of JANE DOE NO Plaintiff vs JEFFREY EPSTEIN Defendant UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO 08-CIV-80119-MARRA/JOHNSON Related cases DEFENDANT JEFFREY EPSTEINS RESPONSE IN OPPOSITION TO PLAINTIFFS JANE DOE MOTION TO COMPEL RESPONSE TO PLAINTIFFS REQUEST FOR PRODUCTION DE WITH INCORPORATED MEMORANDUM OF LAW Defendant JEFFREY EPSTEIN hereby files his Response in Opposition to Plaintiffs JANE DOE Motion to Compel Response to Plaintiffs Request for Production DE Consolidated Case No DE I Procedural Background Plaintiffs Motion to Compel is filed at DE The Motion to Compel was voluminous and orders had been entered by this court DE and addressing other th Amendment issues therefore the undersigned counsel endeavored to eliminate certain requests outlined in Plaintiffs Motion to Compel As a result a Joint Notice of Agreement was entered advising the court that several of the requests had been addressed by counsel alleviating the court from having to rule on same DE Defendant filed his Rule Appeal DE and his Supplementary Brief DE which address several of the th Amendment arguments applicable to the requests outlined Case Document Entered on FLSD Docket Page of Doe Epstein Page No herein Portions of DE and were provided to the court in camera pursuant to the courts order DE Therefore for the Courts ease of reference and in an attempt to maintain brevity Defendant hereby incorporates those arguments and case law as if fully set forth herein Significantly these cases have been consolidated for discovery Therefore consistent rulings should apply In making those rulings this Court must continue to recognize that the allegations in the related cases cannot be forgotten see DE and Production of information in one case could provide a link in the chain of evidence used to prosecute Epstein for a crime or provide an indirect link to incriminating evidence in another case Id and infra A The Request for Production and the responses thereto are attached as Composite Exhibit I The Requests For Production Argument And Memorandum Of Law a Request Number Request No Photos of the inside of your home located at El Brillo Way Palm Beach Florida that depict the room where the massages took place including massage table Response Defendant asserts his U.S constitutional privileges I intend to produce all relevant documents regarding this lawsuit however my attorneys have counseled me that at the present time I cannot select authenticate and produce documents relevant to this lawsuit without waiving my Fifth Amendment rights 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 umeasonable and would therefore violate the Constitution In Jane Doe No Epstein Case No the Magistrate Judge found in Epstein entered into a Non-Prosecution Agreement NPA with the United States Attorney Generals Office for the Federal Southern District of Florida USAO and the State Attorneys Case Document Entered on FLSD Docket Page of Doe Epstein Page No Office for Palm Beach County Under the terms of the NPA any criminal prosecution against Epstein is deferred as long as he abides by the certain terms and conditions contained therein If at any time the USAOs Office has reason to believe Epstein is in breach of the Agreement it need only provide Epsteins counsel with notice of the breach and then move forward with Epsteins prosecution Accordingly the undersigned would agree with Epstein that the fact there exists a NP A does not mean that Epstein is free from future criminal prosecution and that in fact the threat of prosecution is real substantial and present See August Order DE and September Omnibus Order DE and Manson United States U.S Moreover as this court knows the NPA only defers prosecution in the Southern District of Florida not other districts Therefore Epstein is confronted by a substantial and real and not merely trifling or imaginary hazard of incrimination when it comes to Plaintiffs discovery requests United States Apfelbaum U.S 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 see also Edwin Price F.2d 11th Cir citing Lefkowitz Turley U.S The privilege is accorded liberal construction in favor of the right and extends not only to answers that would 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 See Hoffman United States U.S Information is protected by the privilege not only if it would support a criminal conviction but also in those instances where the responses would merely provide a lead or clue to evidence having a tendency to incriminate See United States Neff F.2d ǹ?d 3?S?sӡ n?M S?9?T?wc?xxܭ A C㻗 z?q v??z t?WH?c ݘ?h P?ǣ?b e?ܮ??O?s?q b?G W_?XC??Ϭ?ʫ,y??wY e?:U GA uthu lJ x?C E?wS u?c vc v?U?bz pc?Yg?yg?䞿?.?E V?W u??l yT vܫC Wu?Ϥ?Y 9E?j?Yu??ϐyuw?,??E?w?w?g Q?Da:t:zwY?T;?c yg C웥 YΤ Go N?ߢ iu??N e??N?ﺻ ٮ??sU?Ժ xq r?Y _7 I Z?d VE??c W/w 8_?C?uU?Yu tqs K?T?Us we eW?E ݭn PO s?k E?/?uӮ z?L?ScDt uR e?v N?e?ć x?Y _E e?x xc xu C?U y?t a8 zx Oe?S y?O??T Qg 7x?n?c uPL u?k I tFŠ Ηw?g 8?g?U?Kc ӡ??ZO?D eo _wg N?p g?x pP Ԡǵ hu74 xs yP OV?V c??q??oѰP nf ݚq?C?C?:h?Z A?r q?r H8??pf Dt P?B??n t?E MMHS f?s Lj?K 2V??Ɯo츚ZK BU a?e KW,?J a?X Lt Vz9dF QS UC Ht?V NI fH O嚑8??w xt:C 9U v9l w?y J?Β C?N?s ʢ?D w??Q JÔe B?D y??Qf Ny?F Yuw Cr Ŧx?O)?Elxw?:?ηڸ G?WUD/?jo??t?KFC??s ˡݘ?8 jn Ξ?US q?g?Z?ۄ??y Yw?gvYe?7wU 9а?a V?v yG?_ պS utӗ!?9 n8 N?t v??뾺?F rx ӧ??nHg KXt Ç??o 7w?X S?ηoG?.?E?1?ӧY 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P?Z?i??u5?gҰ ye sw?8 h7 bz s?y r6P CÜY C?1?sLJ X?:?jh"P O?b G?I J?в OeW B??VR fI?!?X B?q E4?P D3?Y Q,z ft?T:sPd eU F?N!mm cpl C?Ҵ e?S??ڮ cL7M?긏JzI bt OHt?XjϽ?3 5K,?ȧN M?Px??ߥ ҦN Case Document Entered on FLSD Docket Page of Doe Epstein Page No 9th Cir cert denied U.S Blau United States U.S SEC Leach F.Supp.2d E.D PA Moreover the act of production itself may implicitly communicate statements and for this reason the Fifth Amendment privilege also encompasses the circumstances where the act of producing documents in response to a subpoena or production request has a compelled testimonial aspect See United States Hubbell U.S Thus where the existence or location of the requested documents are unknown or where production would implicitly authenticate the requested documents as requested by Plaintiff here the act of producing responsive documents is considered testimonial and is protected by the Fifth Amendment See In re Grand Jury Subpoenfh F.3d 2nd Cir Here Plaintiffs overly broad request seeks photos of the inside of Epsteins home Moreover it seeks to compel Epstein into implicitly admitting that there were rooms within his house where the massages took place and into selecting such rooms and even the alleged massage table Any compelled production by Epstein would violate his Fifth Amendment rights in that he is implicitly being asked to authenticate same i.e given the nature of the request Epsteins selection and production of photos would constitute compelled testimonial admissions that the massages took place in a given room on a given table etc The requested information could potentially provide a lead or clue or a link in the chain of evidence having a tendency to incriminate Epstein and would threaten to invade his privilege against being required to produce and/or testify Rudy-Glanzer Glanzer F.3d th Cir the privilege against self-incrimination does not depend upon the likelihood but upon the possibility of prosecution and also covers those circumstances where the disclosures Case Document Entered on FLSD Docket Page of Doe Epstein Page No would not be directly incriminating but could provide an indirect link to incriminating evidence In Jane Doe No Epstein the Court sustained Epsteins Fifth Amendment objections to interrogatories asking Epstein to identify all employees who performed work inside his Palm Beach residence and all other employees who came to the residence asking Epstein to identify any who gave or were asked to give him massages requesting information regarding the identity of persons who provided transportation services seeking a list of Epsteins employees telephone numbers asking Epstein to identify any persons or witnesses who have knowledge or are in possession of physical evidence pertaining to the events in question seeking information related to alleged sexual abuse or misconduct on a minor and seeking the facts on upon which Epstein relies to support pleading denials and affirmative defenses See DE If the Fifth Amendment protects Epstein from disclosing the identity of any person who has knowledge or are in possession of physical evidence i.e photographs videos written statements etc pertaining the alleged events in question it follows that Epsteins production himself of photographs of the same or related subjects would also violate his Fifth Amendment rights Stated differently if Epstein can properly invoke his Fifth Amendment right to not identify a person who may have a photograph or physical evidence pertaining to the alleged events how can Epstein be required to produce the requested photographs He cannot For these reasons Epsteins justified concern with regard to answering the above request 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 based on the facts and circumstances of this case and under applicable law Defendants assertion of the Case Document Entered on FLSD Docket Page of Doe Epstein Page No protections afforded under the and th Amendments of the United States Constitution are required to be upheld Requests Numbers and Request No All discovery information obtained by you or your attorneys as a result of the exchange of discovery in the State criminal case against you or the Federal investigation against you Request No Any documents or other evidentiary materials provided to local state or federal law enforcement investigators or local state or federal prosecutors investigating your sexual activities with minors Request No All correspondence between you and your attorneys and state or federal law enforcement or prosecutors includes but not limited to letters to and from the State Attorneys office or any agents thereof Response to Request Numbers and Defendant is asserting specific legal objections to the production request as well as his U.S constitutional privileges I intend to produce all relevant documents regarding this lawsuit however my attorneys have counseled me that at the present time I cannot select authenticate and produce documents 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 the information sought is privileged and confidential and inadmissible pursuant to the terms of the deferred prosecution agreement Fed Rule of Evidence and and Fla Stat Further the request may include information subject to work product or an attorney-client privilege As discussed in the supporting memorandum herein it is well settled that the Fifth Amendment privilege against self-incrimination also encompasses situations as here where the act of production itself involves a testimonial compulsion Hubbell supra In responding to each request Epstein would be compelled admit that such documents existed admit that the documents were in his possession or control and were authentic In other words the very act of production of the category of documents requested would implicitly communicate statements of fact Hubbell supra Hoffman supra The act of production might not only provide evidence Case Document Entered on FLSD Docket Page of Doe Epstein Page No to support a conviction but also a link in the chain of evidence for prosecution See supra Such compulsion to produce is the same as being compelled to testify The acts of Epstein in being required to produce the requested documents imply assertions of fact admitting the documents exist admitting the documents are in his possession or control and admitting the documents are authentic Again in reading each of the production requests it is clear that the very act of production of such documents could implicate Epstein of a crime See supra same argument on th Amendment applies Moreover the production of such discovery information may lead to the identity of witnesses that could testify against Epstein and those that may have knowledge or are in possession of evidence that could be used against Epstein This comt has already ruled that Epstein can properly invoke his Fifth Amendment right to not identify a person who may have a photograph or physical evidence pertaining to the alleged events DE Moroever the requested information could encompass documents identifying Epsteins whereabouts schedules calendars etc Requiring Epstein to provide responses would in essence be compelling him to provide assertions of fact that could incriminate him under U.S.C and U.S.C and other federal violations discussed in camera at DE and As stated infra the court has already ruled on this issue See DE and Epstein should not be required to produce information in any State or Federal Agencies possession especially when doing so would violate his constitutional rights Notably this court has already ruled on a similar request in whereby the Plaintiffs Jane Doe asked the following Request No The list provided to you by the U.S Attorney of individuals whom the U.S Attorney was prepared to name in an Indictment as victims of an offense by Mr Epstein enumerated in U.S.C Case Document Entered on FLSD Docket Page of Doe Epstein Page No Request No All documents referring or relating to the United States agreement with Defendant to defer federal prosecution subject to certain conditions including without limitation the operative agreement between Defendant and the United States and all amendments revisions and supplements thereto Request No All documents referring or relating to Defendants agreement with the State of Florida on his plea of guilly to violations of Florida Criminal Statutes including without limitation the operative plea agreement and any amendments revisions and supplements thereto Request No.4 All documents obtained in discovery or investigation relating to either the Florida Criminal Case or the Federal Criminal Case including without limitation documents obtained from any federal state or local law enforcement agency the State Attorneys office and the United States Attorneys office The court specifically held at of its Order at DE that defendants Motion as it relates to Production request number is granted The very act of producing documents in response to these requests is testimonial in nature in that by production Epstein would be implicitly communicating statements of fact to which the fifth Amendment privilege may be validly asserted Hubbell U.S at Not only do the subject requests involve statements of fact given the nature of the allegations against Epstein they could also serve as links in the chain of evidence needed for prosecution As such Epsteins fifth Amendment Privilege assertion as it relates to these requests is sustained That same ruling should apply to the above requests The Requests Seek Attorney-Client And Work-Product Privileged Material And Rules Aud Fed Evid And Fla Stat Preclude Production of the Material Next a reading of the particular discovery requests reveals that they encompass attorney client and work-product privileged material As this court has already ruled DE Epstein cannot be compelled to create a privilege log because that would be tantamount to compelled testimony to which Defendants constitutional protections apply Any exchange of information with federal authorities was done in the context of discussions that are in essence immunized under the provisions of FRE in order to encourage the resolution of pending investigations Case Document Entered on FLSD Docket Page of Doe Epstein Page No without trials FRE is particularly directed to communications in matters which like Epsteins did not result in a plea of guilty to any federal charge Fla Stat provides parallel protections in state criminal matters To the extent Epsteins counsel provided the authorities with any information it cannot by the terms of that rule be used in subsequent litigation as same is work-product Likewise the information received from the federal authorities if any as part of a give and take is also subject to FRE Finally the purposes of FRE provide further protection for both state and federal interchanges of information If Epstein is compelled to produce this information not only will it violate his Fifth Amendment privilege but it will also result in an open-ended waiver of his attorney-client and work-product privileges Additionally Request Numbers and all pertain to the State Criminal Proceeding and the Federal Investigation by the USAO Therefore the requests concern the negotiation and eventual entering into of a Plea and the negotiation and eventual entering into the NPA Request Numbers and are so broad that production would encompass any information assuming it exists provided by Epsteins attorneys to local state or federal prosecutors in the Southern District and/or outside of the Southern District in connection with Epsteins alleged sexual activities Likewise all the requests as worded seek production of information in connection with compromise negotiations Federal Evidence Rules and and Florida Statute prevent the production of such material The full text of Federal Evidence Rules and and Florida Statute is found at footnote and is incorporated herein Relevancy and Its Limits Rule Compromise and Offers to Compromise Case Document Entered on FLSD Docket Page of Doe Epstein Page No Clearly discovery in criminal cases is not congruent with discovery in civil cases Here the information requested involves negotiations with the State and the USAO and their investigation If the USAO cannot be compelled to release its investigation and related work-product how a Prohibited uses.--Evidence of the following is not admissible on behalf of any party when offered to prove liability for invalidity of or amount of a claim that was disputed as to validity or amount or to impeach through a prior inconsistent statement or contradiction furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim and conduct or statements made in compromise negotiations regarding the claim except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory investigative or enforcement authority Permitted uscs.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision a Examples of permissible purposes include proving a witnes bias or prejudice negating a contention of undue delay and proving an effort to obstruct a criminal investigation or prosecution CREDIT Pub.L Jan Stat Apr eff Dec I Rule Inadmissibility of Picas Plea Discussions and Related Statements Except as otherwise provided in this rule evidence of the following is not in any civil or criminal proceeding admissible against the defendant who made the plea or was a participant in the plea discussions a plea of guilty which was later withdrawn a plea ofnolo contendere any statement made in the course of any proceedings under Rule of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas or any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn However such a statement is admissible i in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it or ii in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath on the record and in the presence of counsel Florida Evidence Code Offer to plead guilty nolo contendere withdrawn picas of guilty Evidence of a plea of guilty later withdrawn a plea of nolo contendere or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding Evidence of statements made in connection with any of the pleas or offers is inadmissible except when such statements are offered in a prosecution under chapter Case Document Entered on FLSD Docket Page of Doe Epstein Page No can Epstein be compelled to disclose same in violation of his constitutional rights and his attorney-client and work-product privileges He cannot The protections afforded by these evidentiary rules provide that such documents are not subject to discovery Moreover any information exchanged by Epsteins attorneys and the State was exchanged pursuant to Fla.R.Crim.P and is therefore protected under that Rule Further the information is work-product information See id and Fla Jur.2d Criminal Law Third Party Privacy Rights Here the requests also seek information that may violate others third-party privacy rights As noted by the United States Supreme Court in Eisenstadt Baird U.S S.Ct at fn In Stanley U.S at S.Ct at the Court stated A lso fundamental is the right to be free except in very limited circumstances from unwanted governmental intrusions into ones privacy The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness They recognized the significance of mans spiritual nature of his feelings and of his intellect They knew that only a part of the pain pleasure and satisfactions of life are to be found in material things They sought to protect Americans in their beliefs their thoughts their emotions and their sensations They conferred as against the Government the right to be let alone-the most comprehensive ofrights and the right most valued by civilized man Citations omitted The fundamental right of privacy is not only guaranteed under by the Fourteenth Amendment of the United States Constitution but also under the Constitution of the State of Florida Art I Sect As summarized by the Florida Supreme Court in Shaktman State So.2d Fla The right of privacy assured to Floridas citizens demands that individuals be free from uninvited observation of or interference in those aspects of their lives which fall within the ambit of this zone of privacy unless the intrusion is warranted by the necessity of a compelling state interest In an opinion which predated the adoption of section the First District aptly characterized the nature of this right Case Document Entered on FLSD Docket Page of Doe Epstein Page No A fundamental aspect of personhoods integrity is the power to control what we shall reveal about our intimate selves to whom and for what purpose Bryon Harless Schaffer Reid Assocs Inc State ex rel Schellenberg So.2d Fla 1st DCA quashed and remanded on other grounds So.2d Because this power is exercised in varying degrees by differing individuals the parameters of an individuals privacy can be dictated only by that individual The central concern is the inviolability of ones own thought person and personal action The inviolability of that right assures its preeminence over majoritarian sentiment and thus carmot be universally defined by consensus Emphasis added Clearly the nature of the questions and production requests identified would require Epstein to produce information that may identify third parties that could also testify against him and necessarily thwart such individuals rights to assert their constitutional right of privacy as guaranteed under the United States and Florida Constitutions See generally Eisenstadt Baird supra at the right encompasses privacy in ones sexual matters and is not limited to the marital relationship Accordingly based on the facts and circumstances of this case and under applicable law Defendants assertion of the protections afforded under the th and th Amendments of the United States Constitution are required to be upheld Requests Numbers and Request No All financial documents evidencing asset transfers from to the present for you personally or any company or corporation owned by you Request No Request No present Any and all documents reflecting your current net worth Personal tax returns for all years from through the Request No A sworn statement of your net worth including a detailed financial statement depicting all current assets and liabilities Case Document Entered on FLSD Docket Page of Doe Epstein Page No Request No All financial statements or affidavits produced by you for any reason to any person company entity or corporation since Response to Request Numbers Defendant is asserting specific legal objections to the production request as well as his U.S constitutional privileges I intend to produce all relevant documents regarding this lawsuit however my attorneys have counseled me that at the present time I cannot select authenticate and produce documents relevant to this lawsuit without waiving my Fifth Amendment constitutional rightsand 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 overly broad As set forth in more detail in DE and which were provided to the court in camera Epstein cannot provide answers/responses to questions relating to his financial history and condition without waiving his Fifth Sixth and Fourteenth Amendments as guaranteed by the United States Constitution The requests are unreasonable overbroad confidential proprietary in nature and seek information that is neither relevant to the subject matter of the pending action nor does it appear to be reasonably calculated to lead to the discovery of admissible evidence The information sought is privileged and confidential and inadmissible pursuant to the terms of the NPA and Fed Rule of Evidence and and Fla Stat See supra for argument Responding to the above financial requests would require Epstein to identify information regarding matters as set forth in more detail in DE and which were provided to the Court in camera Producing the specified information would result in testimonial disclosures that would communicate statements of fact Again the information sought relates to potential federal claims of violations See DE and in camera Production would therefore constitute a testimonial admission of the genuineness the existence and Epsteins control of such records Case Document Entered on FLSD Docket Page of Doe Epstein Page No and thus presents 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 See generally Hoffman United States U.S and United States Hubbell U.S S.Ct The Fifth Amendment is a safe harbor for all citizens including those who are innocent of any underlying offense This request if answered may result in compelled production and/or testimonial communications from Epstein regarding his financial status and history and would require him to waive his right to decline to respond to other inquiries related to the same subject matter Responding to this and other related inquiries would have the potential to provide a link in a chain of information and/or leads to other evidence or witnesses that would have the specific risk of furthering an investigation against him and therefore are protected from compulsion by Epsteins constitutional privilege 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 See supra 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 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 addition to the above argument the specific information requested in request number as to personal tax returns also seeks information that is confidential and protected by federal law U.S.C Case Document Entered on FLSD Docket Page of Doe Epstein Page No To the extent Plaintiff claims she needs the requested information concermng asset transfers based on her unsupported presumption that Epstein is fraudulently transferring assets same is premature and unsupported by the law for the reasons set forth in Epsteins Memorandum of Law in Opposition to Plaintiffs Motion for Injunction Restraining Fraudulent Transfer of Assets DE Requests Numbers and Request No A photocopy of your passport including any supplemental pages reflecting travel to locations outside the United States between and including any documents or records regarding plane tickets hotel receipts or transportation arrangements Response Defendant asserts his U.S constitutional privileges I intend to produce all relevant documents regarding this lawsuit however my attorneys have counseled me that at the present time I cannot select authenticate and produce documents relevant to this lawsuit without risking waiver of my Fifth Amendment rights 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 umeasonable and would therefore violate the Constitution In addition to and without waiving his constitutional protections and privileges the scope of information is so overbroad that it seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence compiling such information over a six year period would be unduly burdensome and time consuming Request No All medical records of Defendant Epstein from Dr Stephan Alexander Response Defendant is asserting specific legal objections to the production request as well as his U.S constitutional privileges I intend to produce all relevant documents regarding this lawsuit however my attorneys have counseled me that at the present time I cannot select authenticate and produce documents 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 Case Document Entered on FLSD Docket Page of Doe Epstein Page No constitutional rights would be unreasonable and would therefore violate the Constitution As to Request Number Defendant has already provided this court with sufficient argument at DE and DE detailing why the production of information showing Epsteins whereabouts could provide a link in the chain of evidence regarding a Epsteins air travel within the United States and Foreign Territories Epsteins communications with others relating to or referring to females coming into the United States from other countries and Epsteins personal calendars and schedules Given that the essential proof of an allegation of U.S.C would include travel records schedules regarding trips and locations flight records calendars and transportation arrangements the court found that Epstein had made a more particularized showing because producing such information could reveal the availability to him and/or use by him of interstate facilities and thus would constitute a link in the chain of evidence that could potentially expose Epstein to the dangers of self incrimination DE Here Plaintiffs request for Epsteins passport reflecting travel to locations outside the United States between and including any documents or records regarding plane tickets hotel receipts or transportation arrangements is no different from the requests this Court has already ruled upon and sustained Epsteins Fifth Amendment privilege in response thereto DE In summary this court reasoned that in this and the other civil actions Plaintiffs allege that Epstein violated certain federal and state criminal statutes in an attempt to make claims against Epstein ranging from sexual battery to intentional infliction of emotional distress The lynchpin for the exercise of federal criminal jurisdiction under U.S.C which figures in some of the complaints filed is the use of any facility or means of interstate or foreign commerce and the analogous essential element of U.S.C which also figures in some of the Complaints is travels in interstate commerce or travels into the United States or travels in foreign commerce Accordingly requiring Epstein to provide responses would in Case Document Entered on FLSD Docket Page of Doe Epstein I I Page No essence be compelling him to provide assertions of fact thereby admitting that such documents existed aud further admitting that the documents in his possession or control were authentic Based upon the arguments set forth in DE which is incorporated herein this Court sustained Epsteins Fifth Amendment Privilege That same ruling should apply here as Jane Does request is identical to the requests already ruled on by this court DE As to Plaintiffs request for Epsteins medical records Dr Stephen Alexander was hired as au expert consultant by Epsteins attorneys in the underlying criminal matter Therefore auy information provided to Dr Stephen Alexander or auy information provided by the experts to Epsteins attorneys is protected by the attorney-work product and attorney-client privileges Fla Jur.2d Discovery and Depositions and Fed.R.Civ.P Fla Jur.2d Discovery and Depositions provides a party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial aud who is not expected to be called as a witness at trial only as provided in Rule of Civil Procedure governing the report of an examining physician which is not applicable in the instant matter or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means The statutory protection has been extended both to the facts known or opinions held by non-witness experts retained or specially employed by a party in anticipation of litigation aud to their identities Thus absent a showing of exceptional circtunstances a litigant is not required to disclose the names and specialties of experts retained but not expected to testify at trial Accordingly a discovery order ordering a defendant to disclose the names of any persons who have examined evaluated or reviewed the defendants records improperly compels the defendant to divulge the names of experts consulted for trial but not intended to be called to testify at trial where such information is protected by the work-product privilege aud where the state makes no showing of exceptional circumstances Id see also Carrero Engle Homes Inc So 2d Fla 4th DCA Myron By and Through Brock Doctors General Ltd So 2d Fla 4th see also Fla.Jur.2d Criminal Law Case Document Entered on FLSD Docket Page of Doe Epstein Page No In addition to the foregoing privileges in the Courts prior order DE it found that Epsteins Health Insurance Portability and Accountability Act HIPAA objections were unfounded as the requests i.e the interrogatory seek only the identification of Epsteins healthcare providers Here however a request for production is at issue not an interrogatory Therefore Epsteins HIPAA rights should be upheld Allen Woodford WL E.D Cal HIPP A institutes procedural safeguards to protect the privacy of an individuals medical information and history In the context of HIP AA Courts have recognized three methods of health care discovery assuming its relevant in civil litigation Obtaining a patient authorization that complies with the requirements and criteria tailored to the specific case of HIP AA as set forth in C.F.R Court Order which also complies with the requirements of HIP AA ensuring that the privacy and confidentiality of the information is protected and Subpoena or discovery request which again comply with the strictures of HIP AA including that the person whose records are being sought has been given proper notice See Handbook of Federal Civil Discovery And Disclosure 2d Edition Chap Sect A Health Insurance Portability and Accountability Act HIP AA Discovery of health care information in civil litigation and Graham Dacheikh So.2d at fn 2d DCA Fla Even nnder HIP AA if the records are produced during normal discovery they are typically produced in a manner that restricts the persons who may access the documents and requires their return at the end of the litigation See C.F.R Federal Rule of Evidence provides that Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence Pursuant to Rule I the scope of discovery is as follows Case Document Entered on FLSD Docket Page of Doe Epstein Page No Unless otherwise limited by court order the scope of discovery is as follows Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense--including the existence description nature custody condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter For good cause the court may order discovery of any matter relevant to the subject matter involved in the action Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence All discovery is subject to the limitations imposed by Rule Plaintiffs requests is further barred by under Fed Evid Rule and Fla.R.Evid Rule provides Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority the privilege of a witness person government State or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience However in civil actions and proceedings with respect to an element of a claim or defense as to which State law supplies the rule of decision the privilege of a witness person government State or political subdivision thereof shall be determined in accordance with State law Emphasis added Plaintiff alleges diversity jurisdiction and thus state law of Florida controls application of the privilege Plaintiff claims Count I Sexual Battery Upon a Minor Count II Cause of Action Pursuant to USC Count I Intentional Infliction of Emotional Distress Count IV Civil Remedy for Criminal Practices and Count VI Cause of Action Pursuant to Florida Statute Against Defendant Jeffrey Epstein Erie R.Co Tompkins S.Ct Accordingly the privileges recognized under state law apply to this action under Rule See Brickell Associates Q.B.E Ins Co F.R.D S.D Fla Attorney-client privilege is governed by state law in diversity actions Fla Stat provides Case Document Entered on FLSD Docket Page of Doe Epstein Page No A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications or records made for the purpose of diagnosis or treatment of the patients mental or emotional condition including alcoholism and other drug addiction between the patient and the psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist This privilege includes any diagnosis made and advice given by the psychotherapist in the course of that relationship As summarized in C.L Judd So.2d 2d DCA Fla Under the psychotherapist-patient privilege a patient has a privilege to refuse to disclose confidential information or records made for the purpose of diagnosis or treatment of mental conditions including any diagnoses made by the psychotherapist Fla Stat see Pauker Olson So.2d Fla 2d DCA The psychotherapist-patient privilege does not apply during involuntary commitment proceedings when there is a court-ordered mental examination or when the patient raises and relies on the issue of his or her mental condition in litigation as part of any claim or defense Roberson So.2d at State Famiglietti So.2d Fla 3d DCA The privilege does not allow the invasion of a patients privileged communications with his or her psychotherapist Roberson So.2d at Significantly Epstein has not placed his medical history at issue In Breeden Cook So 2d Fla 4th DCA the court quashed an order compelling production of mental health records in a medical malpractice suit involving a failed ankle surgery finding that patients mental health was irrelevant to claims asserted See also Pusateri Fernandez So 2d Fla 2d DCA quashing order directing physicians to produce patients medical record as the records were not relevant to any pending claim or defense nor were reasonably calculated to lead to the discovery of admissible evidence Fla Dept of Corrections Abril So 2d Fla noting that Florida has a long tradition of recognizing the privacy interests of patients in confidential medical records and State Cashner So 2d Fla 4th DCA holding that since the compelled disclosure of a patients medical records encroaches upon a patients right to privacy the state must demonstrate it has a compelling interest in the information contained in those records Plaintiff must also show Case Document Entered on FLSD Docket Page of Doe Epstein Page No that the requested information is relevant to the disputed issues of the underlying action See Young Circle Garage LLC Koppel So 2d Fla 4th DCA see also Equitable Life Assurance Society of the United States Daisy Worldwide Inc So 2d Fla 3d DCA Plaintiff has failed to meet this burden and in doing so has also failed to show any substantial need for the documents If this court orders production of the requested information which it should not an in camera inspection should be had to determine as to each document whether Fla Stat is applicable See DE Carson Jackson So.2d Fla th DCA and Doherty John Doe No So.2d th DCA A reading of these cases clearly establishes that Fla Stat does not provide Plaintiff with a carte blanche access to Defendants medical history especially those of non-testifying consulting experts Wherefore Epstein respectfully requests that this Court issue and order a finding that the danger Epstein faces by being forced to respond to the above requests is substantial and real and not merely trifling or imaginary sustaining Epsteins Fifth Amendment Privilege and other delineated constitutional privileges as it relates to the above requests and denying Plaintiffs Motion in that regard and for such other and further relief as this Court deems just and proper __ MICHAEL PIKE ESQ Florida Bar 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 Case Document Entered on FLSD Docket Page of Doe Epstein Page No day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this_ day of October Respectfully ed_ __ __ By __ ROBERT 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 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 Brad Edwards Esq Rothstein Rosenfeldt Adler East Las Olas Boulevard Suite Fort Lauderdale FL Phone Fax bedwards 1Ta-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 Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 isx searcylaw.com iph 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 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 riosefsberg podhurst.com kezell podhurst.com Counsel for Plaintifft in Related Cases Nos and Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax iagesg bellsouth.net Counsel for Defendant Jeffrey Epstein
