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 DEFENDANTS JEFFREY EPSTEIN RESPONSE IN OPPOSITION TO PLAINTIFFS JANE DOE MOTION TO COMPEL RESPONSE TO PLAINTIFFS REQUEST FOR ADMISSIONS DE Defendant JEFFREY EPSTEIN hereby files his Response in Opposition to Plaintiffs JANE DOE Motion to Compel Response to Plaintiffs Request for Admissions dated July 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 Request outlined in Plaintiffs a 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 Case Document Entered on FLSD Docket Page of Doe Epstein Page No Defendant filed his Rule Appeal DE and his Supplementary Brief DE which address several of the th Amendment arguments applicable to the Request outlined 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 E.,g see DE and Answers Admissions/Denials to discovery Request 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 irifra Here Admissions or denials to the Request for Admissions is the equivalent of compelled testimonial disclosures affirming or denying the very existence of the evidence sought which may result in a global subject-matter waiver of Epsteins th Amendment privilege relative to the topics addressed in these and other discovery Request From the outset Plaintiff Motion to Compel incorrectly states that Epstein has only asserted objections relating to the Fifth Amendment However Epstein has asserted objections under the Fifth Sixth and Fourteenth Amendments as guaranteed by the United States Constitution See Request for Admissions and responses thereto attached as Composite Exhibit A II The Request for Admissions Argument And Memorandum Of Law a Request for Admissions Numbers Request Number Your net worth is greater than million Request Number Your net worth is great than million Case Document Entered on FLSD Docket Page of Doe Epstein Page No Request Number Your net worth is greater than million Request Number Your net worth is greater than million Request Number Your net worth is greater than billion Request Number Since being incarcerated you have directly or indirectly through the services or assistance of other person conveyed money or assets in an attempt to insulate or protect your money or assets from being captured in any civil lawsuits filed against you Request Number You own or control directly or indirectly real estate property in the Caribbean Request Number You own or control directly or indirectly real estate property in foreign countries Request Number In the last years you have transferred assets and/or money and/or financial instruments to countries outside the United States Request Number You are moving significant financial assets overseas outside of the direct territorial reach of the U.S and Florida Courts Request Number You are making asset transfers with the intent to defeat any judgment that might be entered against you in this or similar cases Request Number You currently have the ability to post a bond of million to satisfy a judgment in this case without financial or other difficulty Response To Request for Admissions Numbers In response Defendant asserts his U.S constitutional privileges as specified herein I intend to respond to all relevant discovery regarding this lawsuit however my attorneys have counseled me that I carmot provide answers to any discovery relevant to this lawsuit and I must accept this advice or risk waiving my Fifth Amendment rights as guaranteed by the United States Constitution and 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 The Fifth Amendment As set forth in more detail in DE and which were provided to the court in camera Epstein carmot admit or deny the Request for Admissions relating to his financial history Case Document Entered on FLSD Docket Page of Doe Epstein Page No and condition without waiving his Fifth Sixth and Fourteenth Amendments as guaranteed by the United States Constitution The Request 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 Fifth Amendment is a safe harbor for all citizens including those who are innocent of any underlying offense These Request for Admissions if answered may result in compelled 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 in this case the related cases and those matters outlined for the Court in DE and on camera Responding to this and other related inquiries would have the potential to provide a link in a chain of information and/or lead 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 financial assets or transactions would if answered risk waiving Epsteins constitutional privilege to decline to answer other related inquiries into his financial assets and past and current and intended future transactions thus he must respectfully decline to answer any inquiry even if the insinuation in the question is erroneous and unwarranted 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 Case Document Entered on FLSD Docket Page of Doe Epstein Page No While the Fifth Amendment states only that no person shall be compelled in any criminal case to be a witness against himself U.S Const amend there is no question that an individual is entitled to invoke the privilege against self-incrimination during a civil proceeding See Lefkowitz Turley U.S explaining that the Fifth Amendment permits an individual not to answer official questions put to him in any proceeding civil or criminal formal or informal where the answer might incriminate him And this means that a civil litigant may legitimately use the Fifth Amendment to avoid having to answer inquiries during any phase of the discovery process See Charles A Wright Arthur Miller and Richard Marcus Federal Practice and Procedure at 2d ed Courts have repeatedly held that the privilege against self-incrimination justifies a person in refusing to answer questions at a deposition or to respond to interrogatories or Request for Admissions or to produce documents footnotes omitted To the extent Plaintiff claims she needs the information concerning financial worth and/or asset transfers based on her unsupported presumption that Epstein is fraudulently transferring assets same is premature and unsupported by the Jaw for the reasons set forth in Epsteins Memorandum of Law in Opposition to Plaintiffs Motion for Injunction Restraining Fraudulent Transfer of Assets DE Responding to the above financial requests would require Epstein to admit or deny the very existence of the information sought As discussed infra if compelled to respond to Plaintiffs Request for Admissions Plaintiff will allege a subject-matter waiver of Epsteins Fifth Amendment Privilege regarding the information sought here and in other discovery requests See infra Admitting denying and/or identifying the existence of the information sought by virtue of an admission or denial is tantamount to testimonial disclosures that would communicate Case Document Entered on FLSD Docket Page of Doe Epstein Page No statements of fact Such Admissions or denials 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 See generally Hoffman United States U.S and United States Hubbell U.S S.Ct Again the information sought also relates to potential federal claims of violations See DE and in camera While these Request for Admissions appear to be general-identification type information which on their face may not appear to infringe upon Epsteins rights under the th Amendment responding to same would allow Plaintiff to argue that Epstein has waived his th Amendment privilege relative to the Request for Admissions and thus a global waiver has occurred relative to the similar requests made by Plaintiff in her Request for Production and Interrogatories dealing with Epsteins financial condition ownership of assets and alleged asset transfers Therefore Plaintiff is setting the stage to attempt to force a waiver of the th Amendment in hopes that such a waiver will then require Epstein to disclose the information sought in Plaintiffs Request for Production and Interrogatories If successful Plaintiff will then serve subpoenas on certain institutions entities and possibly individuals that Plaintiff would not know about but for Epstein being compelled to testify about same which is a direct violation of his th Amendment privilege Such an erroneous result may furnish a link in the chain of evidence needed to convict Epstein of a crime See DE and in camera Epstein cannot be required to waive his privileges under the Fifth Sixth and Fourteenth Amendments to the United States Constitution and provide compelled testimony and information that may directly or indirectly furnish Plaintiff a clue or link in the chain of evidence used to prosecute him Rudy Glanzer Glanzer F.3d at the privilege against self-incrimination does not depend upon the likelihood but upon the possibility of prosecution and also covers those circumstances Case Document Entered on FLSD Docket Page of Doe Epstein Page No where the disclosures would not be directly incriminating but could provide an indirect link to incriminating evidence Essentially Plaintiffs Request for Admissions seek to have Epstein be a witness against himself by admitting or denying that certain evidence exists assist with Plaintiffs investigation and identify areas that could result in future prosecution of Epstein The court will note that as worded the Request for Admissions seek information regarding Epsteins assets ownership of assets and transfer of assets in locations inside and outside the United States Defendant has already provided this court with sufficient argument at DE and DE detailing why the production of such information could provide a link in the chain of evidence regarding various allegations that were the subject of the investigation that resulted in the NPA Here Plaintiffs Request for Admissions regarding Epsteins financial information ownership of assets and transfers of assets inside and outside the United States 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 Plaintiff wishes to obtain this information to corroborate her request for Epsteins passport and pages attached thereto identifying the locations Epstein has traveled outside of the United States which is no different from the Request 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 essence be compelling him to provide assertions of fact Case Document Entered on FLSD Docket Page of Doe Epstein Page No The court recognizes that in light of the additional information provided in DE the court is now persuaded that Epsteins whereabouts are crucial issues in this case and other related cases and that if he is forced to reveal this information these testimonial disclosures could subsequently be used to incriminate him and/or prosecute him for a criminal offense DE Accordingly Epsteins financial information is also protected from disclosure as revealing same or admitting or denying same may require him to identify the asset transferred or other financial information which would waive his 5th Amendment privilege not to testify about all assets and his financial condition If such a subject-matter waiver occurred subsequent subpoenas for information and the corresponding information may identify his whereabouts on a particular day and time and may also lead to the identity of witnesses that may have knowledge of the alleged events Moroever the information sought relates to potential federal claims violations that are not the subject of this action and thus a waiver in this regard could expose Epstein to future criminal prosecution See DE and in camera Plaintiffs attempt to backdoor this information though Epstein by virtue of her artfully phrased Request for Admissions coupled with her Request for Production and Interrogatories must fail Clearly this court has already ruled that Epstein can properly invoke his Fifth Amendment right to not identify a person who may have information pertaining to the alleged events Stated differently Epstein cannot be compelled to provide information that would lead to the identity of witnesses that may have knowledge of the alleged events or information concerning potential federal claims violations that are not the subject of this action because it could expose Epstein to future criminal prosecution and self-incrimination See DE and in camera In sum Epstein cannot be required to be a witness against himself or provide information that may incriminate him and lead to future prosecution Case Document Entered on FLSD Docket Page of Doe Epstein Page No For these reasons Epsteins justified concern with regard to admitting and/or denying 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 protections afforded under the and 14ili Amendments of the United States Constitution are required to be upheld The Requests For Admissions Seek Attorney-Client And Work-Product Privileged Material And Rules And Fed Evid And Fla Stat Preclude Responses Next a reading of the particular discovery requests reveals that they encompass attorney client and work-product privileged material See infra 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 This requests also seek the identification of information that was exchanged with federal authorities in the context of discussions that are in essence immunized under the provisions of FRE in order to encourage the resolution of pending investigations without trials including but not limited to the potential federal claims violations provided to this court in camera DE and 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 respond to the requests for admissions or produce this information not Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 the requests may pertain to the State Criminal Proceeding and the Federal Investigation by the USAO Therefore the requests may concern information relating to the negotiation and eventual entering into of a Plea and the negotiation and eventual entering into the NP A Likewise all the requests as worded seek an admission or denial of the existence of information in connection with compromise negotiations That alone is compelled disclosure Federal Evidence Rules and and Florida Statute prevent the production or in this case the identification of such material The full text of Federal Evidence Rules and and Florida Statute is found at footnote and is incorporated herein Clearly discovery in criminal cases is not congruent with discovery in Relevancy and Its Limits Rule Compromise and Offers to Compromise 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 uses.--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 Rule Inadmissibility of Pleas 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 Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 can Epstein be compelled to disclose or identify same in violation of his constitutional rights and his attorney-client and work-product privileges He cannot 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 Epstein cannot be compelled to admit or deny the existence of same Wherefore Epstein respectfully Request that this Court issue and order a finding that the danger Epstein faces by being forced to testify in this case relative to the above Request for Admissions 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 Request for Admissions and denying Plaintiffs Motion in that regard and 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 noio contendere withdrawn pleas 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 for such other and further relief as this Court de just and proper Respect ByiuA MI EL 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 day on all coun of record identified on the following Service List in the manner specified by CM/ECF on thir day of October crit bclclaw.com MICHAEL PIK i 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 Brad Edwards Esq Rothstein Rosenfeldt Adler East Las Olas Boulevard Suite Case Document Entered on FLSD Docket Page of Doe Epstein Page No Suite Miami FL Fax ssm sexabuseattomey.com ahorowitz sexabuseattomey.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 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 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 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 Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 jagesq bellsouth.net Counsel for Defendant Jeffrey Epstein
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