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 Response In Opposition To Plaintiffs Appeal And Objections To Magistrate Judges Order Entered September DE With Memorandum Of Law Defendant Jeffrey Epstein hereinafter Epstein by and through his undersigned attorneys hereby files his Response in Opposition to Plaintiffs Appeal and Objections to the Magistrate Judges Order Entered September DE with Incorporated Memorandum of Law In support Epstein states I Procedural Background The Magistrate Judge entered an order DE sustaining several of Epsteins Fifth Amendment objections and stating among other things that Epstein must supplement his Response Memorandum to Plaintiffs Motion to Compel DE On August Epstein filed his Supplementary Brief providing a more particularized showing as to why his objections under the Fifth Amendment should be sustained DE the Supplementary Brief Of even date Epstein filed his Motion for Reconsideration and Request for Rule Appeal of Portions of the Case Document Entered on FLSD Docket Page of Magistrates Order et al DE Epsteins Rule Appeal As discussed in more detail below the Magistrate Judge was provided with unredacted versions of the Supplementary Brief and Epsteins Rule Appeal in camera After Epstein provided a more particularized showing in the Supplementary Brief and his Rule Appeal as to why Epsteins objections should be sustained or reconsidered under the Fifth Amendment the Magistrate Judge entered the Omnibus Order at DE sustaining Epsteins Fifth Amendment privilege As set forth in DE and the case law cited therein the Magistrate Judge followed the appropriate procedures and law in entering DE and therefore same should be sustained and left undisturbed II The Magistrate Judge Followed The Appropriate Procedures Under the Fifth Amendment In Entering DE As Plaintiffs concede in their Rule Appeal DE the Magistrate Judges initial order at DE directed Epstein to make a particularized showing by in camera submission or otherwise demonstrating how the Fifth Amendment may validly be asserted in response to these requests DE Inconsistent with the law discussed infra and the Magistrates Order Plaintiffs claim that the Magistrate made her ruling apparently in reliance upon the substantially redacted Supplementary Brief filed by Defendant and that Defendant was required to produce documents in making his more particularized showing Plaintiffs Rule Appeal at From the outset Defendant provided the Magistrate Judge with unredacted copies of the Supplementary Brief DE and the Rule Appeal DE in camera If Epstein had not provided the information in camera but instead provided same to opposing counsel Epstein would have waived his Fifth Amendment privilege Case Document Entered on FLSD Docket Page of Epstein electronically filed those same briefs in redacted form in order to preserve his rights under the Fifth Amendment Therefore the Magistrate Judge despite Plaintiffs specious contentions did not make her rulings based upon substantially redacted briefs Blacks law Dictionary th Edition defines an in camera inspection as a trial judges private consideration of the evidence Obviously if an in camera inspection is the trial judges private consideration of the facts Plaintiff cannot argue that they are entitled to receive umedacted versions of the briefs which contain evidence that would inevitably be used to incriminate Epstein and result in Epsteins waiver of his Fifth Amendment privilege In Hoffman U.S U.S S.Ct L.Ed the Supreme Court enunciated the standard for measuring when a witness may properly claim his right against self-incrimination and thus refuse to respond to questions To sustain the privilege it need only be evident from the implications of the question in the setting in which it is asked that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence Id at S.Ct at see also DE A proper application of this standard requires that the Fifth Amendment claim be raised in response to specific questions This permits the reviewing Court to determine whether a responsive answer might lead to injurious disclosures United States Once a particularized showing has been made it is for the Court to decide whether a witness silence is justified and to require him to answer if it clearly appears to the Court that the witness asserting the privilege is mistaken as to its validity In re Morograth F.2d th Cir Here the Com1 has spoken and has considered the nature of the allegations made against Epstein along with the in camera submissions Case Document Entered on FLSD Docket Page of Malnik F.2d 5th Cir cert denied U.S S.Ct L.Ed.2d It is clear that Epstein followed not only the Courts order DE but also the well-settled law with regard to making a more particularized showing that there is reasonable cause for Epstein to believe that a direct answer or response to the requests would support a conviction or provide a link in the chain of evidence to support a conviction against Epstein See Sheldon Sheldon B.R S.D N.Y the Court in camera determined that answers to certain deposition questions would support a conviction or provide a link in the chain of evidence to support a conviction As this Court recognized Epsteins refusal to respond or produce information to each request is as required based on a specific apprehension of a compelled production and disclosure providing a link in the chain of evidence adverse to him Blau United States U.S Production would therefore constitute a testimonial admission of the genuineness the existence and Epsteins control of such records 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 Therefore Epstein is not required to produce any documents or responses to interrogatories Instead an evaluation can and was made by this Court of Epsteins unredacted in camera submissions and it was clearly evident from the implications of the interrogatories and the requests that a responsive answer to the interrogatories and the requests for production could result in injurious disclosures and compelled testimony Case Document Entered on FLSD Docket Page of which would among other things require Epstein to be a witness against himself Under the law espoused in Hoffman an explanation of why answers to the subject interrogatories and the requests for production would violate Epsteins Fifth Amendment privilege is sufficient In entering DE the Magistrate Judge considered all the facts necessary including but not limited to and the setting in which the interrogatories and the request for production were made and thus correctly entered DE As this Court ruled in DE it is evident from the requests themselves the allegations in the various complaints and the facts and circumstances surrounding these cases that to demand a more particularized showing of danger would require Epstein to surrender the very protection which the privilege is designed to guarantee As such no more particularized showing than that offered by Epstein in his Response Brief is necessary DE citing Hoffman U.S at Here the Magistrate Judge correctly followed Hoffman That same reasoning should apply here Significantly Plaintiffs have not challenged several of the interrogatories and the requests for production in which Epsteins Fifth Amendment privilege was sustained in DE above based upon their misguided theory that an explanation is not sufficient in detailing why Epsteins privilege should be sustained and that answers to interrogatories and responsive documents must be produced in order to make a more particularized showing to sustain the privilege If this Court accepts Plaintiffs slanted argument then a severe conflict would exist between what is required to sustain the protections of the Fifth Amendment as to interrogatories and requests for production That is if Plaintiffs theory is accepted then this Court must make a ruling that is in Case Document Entered on FLSD Docket Page of direct conflict with Hoffman and require Epstein to respond to interrogatories and produce documents to make a more particularized showing rather than provide the appropriate explanation as to how answers or responses would be injurious under Hoffman Plaintiffs would albeit incorrectly have this Court believe that it was not permitted to make a determination of Epsteins Fifth Amendment privilege from the requests themselves the allegations in the various complaints and the facts and circumstances surrounding these cases as provided under Hoffman Plaintiffs argument simply does not make sense and is unsupported by the law Epstein in his Response in Opposition which led to the entering of DE and in his Rule Appeal and his Supplementary Brief has demonstrated and provided fact specific explanations as why answers to the subject interrogatories and the request for production would violate Epsteins Fifth Amendment privilege As Hoffman observed The claim of privilege must be sustained unless it is perfectly clear from a careful consideration of all the circumstances in the case that the answer cannot possibly have such tendency to incriminate Id at quoting Temple Commonwealth Va emphasis in original Here the Court cannot conclude that answers and responses cannot possibly have a tendency to incriminate Epstein I The Underlying Federal Statutes And the Specified Discovery Requests As to Interrogatory Numbers and Epstein made a sufficient showing as to why answers relate to potential federal claims violations as well as the statutes p!ed by Plaintiffs in an effort to recover millions from Epstein For example the underlying criminal offense as it relates to Interrogatory Number is knowingly persuading Case Document Entered on FLSD Docket Page of inducing enticing or coercing any individual to travel in interstate or foreign commerce or in any Territory or Possession of the United States to engage in prostitution or in any sexual activity for which any person can be charged with a criminal offense or attempts to do so Id Interrogatory Number asks for time periods Epstein was present in Florida and the dates he arrived ru1d departed i.e traveled into and out of Florida Plaintiffs allege that Epstein engaged a scheme and plan against minor girls at his places of residence i.e Florida New York and St Thomas If Plaintiffs allegations are accepted as true forcing Epstein himself to provide this information may provide a clue or a link in the chain of evidence allowing Plaintiff or others to satisfy one or more of the elements of U.S.C a resulting in self-incrimination and may subject Epstein to future criminal prosecution under the NPA or in another district for an alleged violation of a criminal offense Likewise other Jane Does such as Jane Doe I have contended that they are entitled to U.S.C drunages based on Epsteins violation of U.S.C a separate federal criminal statute that prohibits a person who travels in interstate commerce or travels into the United States for the purpose of engaging in illicit sexual activity By seeking testimonial disclosures regarding dates Epstein traveled to and from the State of Florida a response to contested interrogatory may furnish a link in the chain of evidence that could potentially expose Epstein to the hazards of self-incrimination as to U.S.C violations As such the court made the correct ruling ru1d no further particularized showing is required as that would cause Epstein to surrender his Fifth Amendment rights I Next the underlying criminal offense as it relates to Interrogatory Number is using the mail or any facility or means of interstate or foreign Case Document Entered on FLSD Docket Page of commerce or within the special maritime and territorial jurisdiction of the United States knowingly persuades induces entices or coerces any individual who has not attained the age of years to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempts to do so Id Interrogatory Number asks for Epstein to identify all telephone numbers used by Epstein including cellular phones and landlines in any of his residences by stating the complete telephone number and the name of the service provider Plaintiff alleges that Epstein engaged a scheme and plan against minor girls at his places of residence i.e Florida New York and St Thomas Assuming Plaintiffs allegations are true forcing Epstein himself to provide this information may provide a clue or a link in the chain of evidence allowing Plaintiff or others to satisfy one or more of the elements of U.S.C e.g telephones the use of any facility or means of interstate or foreign commerce resulting in self incrimination and may subject Epstein to future criminal prosecution under the NPA or in another district for an alleged violation of a criminal offense Significantly this Court sustained Epsteins objections to Interrogatory Number which requested information similar to Interrogatory Number As such the court made the correct ruling and no further particularized showing is required as that would cause Epstein to surrender his Fifth Amendment rights Likewise Request for Production numbers and all relate to potential federal claims violations as well as the statutes pied by Plaintiffs in an effort to recover millions from Epstein For instance Plaintiffs alleges violations of U.S.C entitled Coercion and enticement contained in Chapter of Title Transportation for Illegal Sexual Activity and Related Crimes and as to other Jane Case Document Entered on FLSD Docket Page of Does violations of U.S.C which criminalizes interstate or foreign travel for the purpose of having illicit sexual activity Both U.S.C and are alleged by Jane Doe and other Jane Does as predicate criminal offenses for federal damages lawsuits pursuant to U.S.C which creates a civil remedy for personal injuries when a plaintiff can first show a violation of specified federal statutory criminal statues Most importantly for purposes of the Courts making a determination regarding whether Epstein had shown a specific risk of self-incrimination or that production of a document would constitute a link in the chain of evidence see at pgs the lynchpin for the exercise of federal criminal jurisdiction under U.S.C is the use of any facility or means of interstate or foreign commerce and the analogous essential element of U.S.C is travel in interstate commerce or travels into the United States or as to a United States citizen travels in foreign commerce Thus facially an essential proof of any allegation of U.S.C the statutory precondition alleged by Jane Doe for a civil damage recovery includes telephone cellular phone e-mail records or other communications as a facility of interstate commerce during which use there was persuasion inducement enticing or coercing of an underage person to engage in prostitution or sexual activity Contested requests for production numbers I and ask that Epstein produce information e.g documents reflecting Epsteins air travel aircraft used and flight manifests all communications with female models MC2 models or Jean Luc Brunel relating to or referring to females coming into the United States from other countries and his personal calendars and schedules that could reveal the availability to him or use of such interstate facilities and thus would constitute a link in the chain of evidence that could potentially Case Document Entered on FLSD Docket Page of expose him to the hazards of self-incrimination as to U.S.C federal criminal violations Again other Jane Does such as Jane Doe have contended that they are entitled to U.S.C damages based on Epsteins violation of U.S.C a separate federal criminal statute that prohibits a person who travels in interstate commerce or travels into the United States for the purpose of engaging in illicit sexual activity By seeking testimonial disclosures regarding Epsteins Epsteins air travel aircraft used and flight manifests all communications with female models MC2 models or Jean Luc Brunel relating to or referring to females coming into the United States from other countries and his personal calendars and schedule assuming Plaintiffs allegations to be true responses to contested requests and may furnish a link in the chain of evidence that could potentially expose Epstein to the hazards of self incrimination as to U.S.C violations As such the court made the correct ruling and no further particularized showing is required as that would cause Epstein to surrender his Fifth Amendment rights As such the court made the correct ruling and no further particularized showing is required as that would cause Epstein to surrender his Fifth Amendment rights i Application Of The th Amendment In the instant case it is evident from the requests themselves the allegations in the various Complaints and the facts and circumstances surrounding these cases that to demand from Epstein a more particularized showing requires Epstein to walk a thin line with regard to surrendering the very protection which the privilege is designed to guarantee Hoffman U.S at The United States Supreme Court has made clear that the scope of the Fifth Amendment Privilege also encompasses the Case Document Entered on FLSD Docket Page of circumstance where the act of producing documents in response to a subpoena or production request has a compelled testimonial aspect United States Hubbell U.S at see also Fisher United States U.S McCormick on Evidence Title Chap The Privilege Against Self-Incrimination th Ed The implicit authentication rationale appears to be the prevailing justification for the Fifth Amendments application to documentary subpoenas which is no different from producing documents responsive to a request for production See U.S Hubbell U.S Schmerber California U.S the privilege reaches the compulsion of responses which are also communications for example compliance with a subpoena to produce ones papers Couch United States U.S the person complying with the subpoena implicitly testifies that the evidence he brings forth is in fact the evidence demanded People Defore N.Y A defendant is protected from producing his documents in response to a Subpoena duces tecum for his production of them in Court would be his voucher of their genuineness There would then be testimonial compulsion Again if plaintiffs theory is accepted Epstein would be compelled to produce documents and therefore provide assertions of fact thereby admitting that such documents existed and further admitting 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 United States U.S S.Ct As such the act of production might not only provide evidence to support a conviction but also a link in the Case Document Entered on FLSD Docket Page of chain of evidence for prosecution Importantly such compulsion to produce is the same as being compelled to testify Thus in those instances where the existence and/or location of the requested documents are unknown or where the production would implicitly authenticate the requested documents the act of producing responsive documents is considered testimonial and is protected by the Fifth Amendment In re Grand Jury Subpoena F.3d nd Cir see also Fisher U.S U.S issue expressed as whether compliance with a document request or subpoena tactically conceded the items authenticity existence or possession by defendant Even more egregious is that fact that producing or responding to the Specified Requests could result in self-incrimination and potential prosecution and waiver of the th Amendment The claimant must also be confronted by substantial and real and not merely trifling or imaginary hazards of incrimination United States Apfelbaum U.S Accordingly responses to the requests propounded upon Epstein would provide information which is protected by the privilege i.e the responses could merely provide a lead or clue to evidence having a tendency to incriminate Epstein United States Neff F.2d th Cir cert denied U.S IV This Is Not An Instance Where Sealing Occurred Or Should Have Occurred This is a Private In Camera Viewing By Definition As to Plaintiffs argument that Defendant did not follow the local rules with regard to sealing Epsteins Rule Appeal and the Supplementary Brief Defendants response is simple this is not an instance where documents were submitted under seal but rather for private in camera review which is within the Courts discretion Interestingly several documents have been filed by Defendant in this federal Court Case Document Entered on FLSD Docket Page of redacting the faces of each of the Plaintiffs and/or their identifying information without moving to seal same Do the plaintiffs now concede that since the local rules were not followed in that redacting instance that all of their Plaintiffs faces and names can be made public Epstein thinks not Plaintiffs forget that the immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime United States White U.S S.Ct L.Ed Wherefore Epstein respectfully requests that this Court issue and order a denying Plaintiffs Rule Appeal and Sustaining DE and for such other and further relief is Court deems just and proper HAEL 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 ce ify that the foregoing document is being served this day on all counsel identifi on following Service List in the manner specified by CM/ECF on day Respect ull 4ib11J-ifte 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 Case Document Entered on FLSD Docket Page of 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 Fax Counsel for Plaint/ff 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 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 Pro Hae Vice South Room Salt Lake City UT I 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 Plaint/ff in Related Case No Robert Josefsberg Esq Katherine Ezell Esq Podhurst Orseck P.A West Flagler Street Suite Miami FL Case Document Entered on FLSD Docket Page of 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 fendant 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 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 A venue South Suite West Palm Beach FL Fax jagesq bellsouth.net Counsel for Defendant Jeffrey Epstein
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