Case Document Entered on FLSD Docket Page of 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 and in another jurisdiction Id and infra The Request for Production and the responses thereto are attached as Composite Exhibit A II The Fifth Amendment 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 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 Case Document Entered on FLSD Docket Page of implicitly authenticate the requested documents the act of producing responsive documents is considered testimonial and is protected by the Fifth Amendment See In re Grand Jury Subpoena F.3d 2nd Cir 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 would not be directly incriminating but could provide an indirect link to incriminating evidence I The Requests For Production Argument And Memorandum Of Law a 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 Case Document Entered on FLSD Docket Page of In light of the Courts Order and the Reply which further defines exactly what Plaintiff seeks DE Epstein is now permitted to cautiously elaborate on his responses As to Request Number Epstein and his attorneys do not have any discovery information provided to them by the federal government As to Request Number Epstein has not been given any evidentiary materials or evidentiary documents by the federal government Request No IO contravenes the critical public policy of encouraging the resolution of criminal prosecutions without trial and the concomitant understanding that defendants will be considerably more likely to engage in full and frank discussions with the government if they need not fear that statements they or their counsel make to government prosecutors will be used against them to their detriment The critical importance of plea bargaining to the criminal justice system has long been recognized Whatever might be the situation in an ideal world the fact is that the guilty plea and the often concomitant plea bargain are important components of this countrys criminal justice system Properly administered they can benefit all concerned Bordenkircher Hayes U.S quoting Blackledge Allison U.S To encourage defendants to participate in the plea negotiation process rules have developed to prohibit admission into evidence against the defendant of any and all statements he or his counsel acting on his behalf makes to government prosecutors during the plea negotiation process This confidentiality protection is embodied in both Fed Evid and Fed Crim While these rules by their express terms refer only to admissibility of evidence the As set forth infra the federal government provided Epstein with the NPA and the list attached thereto The NPA is now a public document and the list pursuant to Brad Edwards Agreement with Judge Colbath remains confidential 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 Case Document Entered on FLSD Docket Page of purposes and policies underlying these rules in instructive in this context in which a civil plaintiff seeks discovery of documents falling within the scope of these two rules Rule was created to promote active plea negotiations and plea bargains which our Supreme Court has acknowledged are important components of this countrys criminal justice system Our Court of Appeals has held that in order for plea bargaining to work effectively and fairly a defendant must be free to negotiate without fear that this statements will later be used against him Indeed absent the protection of Rule the possibility of self-incrimination would discourage defendants from being completely candid and open during plea negotiations S.E.C Johnson F.Supp.2d D.D.C quoting United States Davis F.2d D.C.Cir See United States Mezzanatto U.S purpose of the rules is to encourage plea bargaining and rules creat in effect a privilege of the defendant quoting Weinstein Berger Weinsteins Evidence i at United States Barrow F.3d 2d Cir The underlying purpose of Rule is to promote plea negotiations by permitting defendants to talk to prosecutors without sacrificing their ability to defend themselves if no disposition agreement is reached Fed Crim I I Advisory Committee Notes Amendment the purpose of Fed Ev and Fed Crim now Rule is to promote the unrestrained candor which produces effective plea discussions Additional illustration of the high degree of confidentially accorded settlement negotiations is found in Fed Evid which precludes the introduction into evidence communications made during settlement negotiations The purposes underlying Rule are essentially the same as those underlying Rules ll and to encourage non-litigious solutions to disputes Reichenbach Smith F.2d I Ith Cir See Stockman Oakcrest Dental Center F.3d 6th Cir the purpose underlying Rule is the promotion of the public policy favoring the compromise and Case Document Entered on FLSD Docket Page of settlement of disputes that would otherwise be discouraged with the admission of such evidence Bankcard America Inc Universal Bancard Systems Inc F.3d 7th Cir Because settlement talks might be chilled if such discussions could later be used as admissions of liability at trial the rules purpose is to encourage settlements In re A.H Robins Co Inc B.R E.D.Va Rule aims to foster settlement discussions in an individual lawsuit and therefore insulates the particular parties to a settlement discussion from possible adverse consequences of their frank and open statements So crucial is this policy of confidentiality to the functioning of our federal court system that some courts have held that communications falling within the parameters of Rule are covered by a settlement privilege which insulates them not just from admission into evidence but from discovery as well See Goodyear Tire Rubber Co Chiles Power Supply Inc F.3d 6th Cir Given the powerful and long-standing policy of according confidentiality to settlement negotiations in both the civil and criminal context civil plaintiffs should at a minimum be required to demonstrate real and concrete need for the material They should not be permitted to rummage through such sensitive documents based on nothing more than a vague and contentless statement that the materials are likely to lead to the discovery of other admissible evidence Motion to Compel at which is all that plaintiff offers as to Request No This is particularly so given the reality that parties often take positions or offer potential compromise solutions during plea negotiations which are inconsistent with the litigation strategy they will pursue if the case goes to trial As one court has explained in the civil context Case Document Entered on FLSD Docket Page of There exists a strong public interest in favor of secrecy of matters discussed by parties during settlement negotiations The ability to negotiate and settle a case without trial fosters a more efficient more cost-effective and significantly less burdened judicial system Parties must be able to abandon their adversarial tendencies to some degree They must be able to make hypothetical concessions offer creative quid pro quos and generally make statements that would otherwise belie their litigation efforts Goodyear Tire F.3d at The same is no less true in the plea negotiation context The free availability in discovery to civil plaintiffs of communications made during the plea negotiation process has profound potential to chill frank and open communications during that process so crucial to the functioning of the criminal justice system in any criminal case which has potential to become a civil or regulatory matter as well Such defendants will be loath to be fully forthcoming during plea discussions or commw1ications and indeed if the potential civil or regulatory consequences are sufficiently severe may decline to enter into plea negotiations at all if they must fear that their communications will be made available to civil plaintiffs in discovery thus entirely defeating both the purpose and spirit of Rules and In addition the communications made during the plea negotiation process contain fact and opinion attorney work product of both Mr Epsteins attorneys and government attorneys Particularly given the strong public policy in favor of confidentiality of plea/settlement negotiations the disclosure of such information should be treated as falling within the selective waiver provisions of Fed Evid and not be treated as an open-ended waiver of the attorney-client and work product privileges The correspondence in question contained what would constitute paradigm opinion work product with the single caveat that the opinions of each counsel Epsteins and the United States Attorneys were exchanged with each other pursuant to the overall expectation that they were safeguarded from disclosure by the policies of confidentiality that protect communications during settlement and plea negotiations The requested communications include the views of Case Document Entered on FLSD Docket Page of Doe Epstein Page No Epsteins counsel in the criminal case regarding why a federal prosecution was inappropriate why the federal statutes did not fit the alleged offense conduct why certain of the alleged victims were not credible It also includes Epsteins counsels views on the limits and inapplicability of certain elements of U.S.C one of the principal causes of action in the Jane Doe cases This opinion work product should not be disclosed when it was incorporated into heartland plea negotiations that are accorded protection under the federal rules of evidence It is the disclosure of such legal opinions and not just their admissibility that should be protected from a civil discovery request that lacked any statement as to why this information was even necessary to the fair litigation of the civil cases Concomitantly to the extent that the request is now limited to communications from the Government to Epstein see DE pgs and the narrowed request implicate the same concerns for the opinions the work product and the expectation of privacy of the United States Attorney or Assistant United States Attorney who authored the many letters received by counsel for Epstein As such to the extent that the Court is considering affirming any part of the Magistrate-Judges opinion allowing request that would result in the required disclosure of communications from the Government counsel to Epstein that notice be provided to the United States Attorney so they may intervene to protect their opinion work product assert their rights to confidentiality under FRE and and assert where appropriate their interests in grand jury secrecy and in the privacy rights of their witness who in at least one document are identified The defendant requests that if the Court were considering allowing the disclosure of any portion of the communications sent by Epstein to the Government which are within the original request for production but apparently not plaintiffs latest filing DE pg the Court first consider Case Document Entered on FLSD Docket Page of Doe Epstein Page No permitting the defendant to provide a privilege log that would identify specific portions of the correspondence that contains the opinion work product of counsel for Epstein Here the information requested involves negotiations with the USAO and its investigation If the USAO cannot be compelled to release its investigation and related work product how can Epstein be compelled to disclose same in violation of his constitutional rights He cannot Rules ll and all counsel strongly against the discoverability of such documents The court is requested to reverse the Magistrate-Judges order as to paragraph Alternatively the Court is requested to permit a privilege log that would be filed by Epsteins counsel and if they so desire the Government particularizing the prejudice to their work product and to the values otherwise protected by FRE and on a document by document basis Epstein also continues to maintain that the requested correspondence is protected under the Fifth Amendment as it could furnish a link in the chain of evidence needed to prosecute him for a crime or provide the federal government with information that provides a lead or clue to evidence having a tendency to incriminate Epstein See infra Hoffman United States U.S at United States Neff F.2d at Blau United States U.S at and SEC Leach F.Supp.2d at As this court has recognized the threat of criminal prosecution is real and present as Epstein remains under the scrutiny of the USAO which is explained and/or acknowledged in the Courts Orders DE and As this Court knows Epstein entered into a Non-Prosecution Agreement NP A with the USAO for the Federal Southern District of Florida However the NP A does not provide Epstein with any protection from criminal investigation or prosecution in other than in the Southern District of Florida As the court has acknowledged in its orders e.g Case Document Entered on FLSD Docket Page of Doe Epstein Page No DE complaints in these related matters allege that Epstein both resided in and allegedly engaged in illegal sexual conduct in districts outside the Southern District of Florida and that he allegedly lured economically disadvantaged girls to homes other than in Palm Beach Thus the fact that there exists a NP A does not mean that Epstein is free from a reasonable fear of future criminal prosecution In fact this court acknowledged that the danger Epstein faces by being forced to testify in this case is substantial and real and not merely trifling or imaginary as required DE I As such in the event Epstein is required to produce information provided to him by the federal government or provided by Epstein to the Government that information could provide a link in the chain of evidence needed to prosecute Epstein of a crime outside the protections of the NP A Given the nature of the allegations to wit a scheme and plan of sexual misconduct this court should find it entirely reasonable for Epstein to assert his Fifth Amendment privilege as to request Number I especially since it is broad enough to encompass information that could violate Epsteins Fifth Amendment Privileges Hubbell supra In responding to the request Epstein would be compelled admit that such documents exist 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 Moreover the production of such 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 in another district This court has already ruled that Epstein can properly invoke his Fifth Amendment right to not identify a person who may have a photograph Case Document Entered on FLSD Docket Page of Doe Epstein I I Page No or physical evidence pertaining to the alleged events DE 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 Third Party Privacy Rights And Judge Jeffreys Colbaths Order The Magistrates Order does not consider the privacy rights of other alleged victims As this Court knows full well attached to the NP A is a list which delineates alleged victims Once the NP A was made public Judge Colbath with the agreement of the Palm Beach Post Brad Edwards Esq and Spencer Kuvin Esq agreed that the list would remain private As such Request for Production Number IO seeks information that may violate others third-party privacy rights in that certain names may be mentioned in correspondence including those on the list As noted 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 of rights 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 I 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 I I Case Document Entered on FLSD Docket Page of Doe Epstein 08-CVS0l Page No 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 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 cannot be universally defined by consensus Emphasis added Clearly the nature of the question would require Epstein to produce information that may identify third parties including alleged victims which would 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 The Magistrates Order did not address this issue Federal law provides crime victims with rights similar to those afforded by the Florida constitution which includes but is not limited to the right to reasonable accurate and timely notice of any pubic court proceeding involving the crime the right not to be excluded from any public court proceeding and the right to be heard Fla Jur.2d Crim.Proc I Fla Stat Based upon the foregoing any alleged victim that may be identified in any of the requested information must first be notified which means that this court must at the very least conduct an in camera inspection of any and all information to determine which alleged victim must be placed on notice that their identity may be revealed or redact their names Case Document Entered on FLSD Docket Page of Doe Epstein Page No in camera See also Fla Stat and The right to privacy encompasses at least two different kinds of interests the individual interests of disclosing personal matters and the interest in independence in making certain kinds of important decisions Favalora Sidaway So.2d Fla th DCA Accordingly based on the facts and circumstances of this case and under applicable law Defendants assertion of the protections afforded under the 5th 6th and th Amendments of the United States Constitution are required to be upheld In addition this Court must address the privacy rights of others as outlined above Request No present Request Number Personal tax returns for all years from through the 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 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 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 which includes his tax returns Asking for Epsteins personal tax returns is financial in nature and it is confidential proprietary and seeks information much of which is neither relevant to the subject matter of the pending action nor does it appear to be Case Document Entered on FLSD Docket Page of Doe Epstein Page No reasonably calculated to lead to the discovery of admissible evidence Importantly the Magistrate did not make a ruling on relevancy as to the personal tax returns and the Plaintiff has not met the burden of establishing a compelling need for the tax returns Producing the specified information in full would result in testimonial disclosures that would communicate statements of fact and would require Epstein to produce the returns and thereby stipulate to their genuiness their existence his control of the records and their authenticity as his executed tax returns even though his possession of such records are by no means a foregone conclusion 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 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 at United States Hubbell U.S at and United States Apfelbaum U.S at The Courts order seems to hone in on the required records exception for the proposition that as a matter of law Epsteins personal tax returns must be produced because they are allegedly a mandatory part of a civil regulatory scheme and have assumed some public aspect DE However required records are ordinarily records collected by highly regulated business e.g physicians wherein the records themselves have assumed public aspects which render them analogous to public documents See In re Dr John Doe F.R.D S.D.N.Y Usually these documents are known to more than the filer and the agency in which the document were filed i.e known to other persons of the general public Id Even though the IRS may have certain returns they remain confidential under U.S.C Case Document Entered on FLSD Docket Page of Doe Epstein Page No from any disclosures and are therefore different than a regulated/public record that can be accessed by the public In Trudeau New York State Consumer Protection Bd F.R.D N.D.N.Y the court maintained that routine discovery of tax returns is not the rule but rather the exception Id at The Court went on to note that for nearly the past thirty-five years tax returns have been considered confidential pursuant to U.S.C Id Because of the principle of confidentiality it further noted courts in the Second Circuit have found personal financial information to be presumptively confidential or cloaked with a qualified immunity and must therefore balance the countervailing policies of liberal discovery set forth in the Federal Rules of Civil procedure against maintaining the confidentiality of such documents Id To achieve that balance courts in the Second Circuit have developed a more stringent standard than that set forth in the rules To order disclosure of tax returns a court must find that the requested tax information is relevant to the subject matter of the action and that there is a compelling need for this information because the information contained therein is not otherwise readily available Id The Magistrates Order makes no such finding in the instant matter In fact the burden of showing compelling need is on the party seeking discovery but once a compelling need has been found the party whose tax return information has been requested has the burden to provide alternative sources for this sensitive information Id If the requested information is available from alternate sources disclosure should not be compelled Potential alternate sources to which the court pointed were gathering the information through deposition or disclosure in an affidavit by the requested party of net worth wealth and income Id at See Barton Cascade Regional Blood Services WL W.D.Wash Tax returns are confidential communications between the taxpayer and the government citing Case Document Entered on FLSD Docket Page of Doe Epstein Page No and although not privileged from discovery there is a recognized policy against unnecessary public disclosure The Court finds no compelling need which overcomes this recognized policy Courts have broadly construed these provisions to embody a general federal policy against indiscriminate disclosure of tax returns from any source Federal Sav Loan Ins Corp Krueger F.R.D N.D Ill it is the opinion of this court that reflects a valid public policy against disclosure of income tax returns This policy is grounded in the interest of the government in full disclosure of all the taxpayers income which thereby maximizes revenue To indiscriminately compel a taxpayer to disclose this information merely because he has become a party to a lawsuit would undermine this policy see also Premium Service Corp Sperry Hutchinson Co F.2d 9th Cir would have been appropriate for district court to quash subpoena for tax returns based on the primacy of the public policy against unnecessary disclosure of tax returns arises from the need if tax laws are to function properly to encourage taxpayers to file complete and accurate returns In Pendlebury Starbucks Coffee Co WL at S.D Fla the court agreed that income tax returns are highly sensitive documents and that courts should be reluctant to order disclosure during discovery Citing Natural Gas Pipeline Co of Am Energy Gathering Inc F.3d th Cir DeMasi Weiss Inc F.2d 3d Cir noting existence of public policy against disclosure of tax returns Premium Serv Corp Sperry Hutchinson Co F.2d th Cir The court in Pendlebury agreed that parties seeking the production of tax returns must demonstrate relevance of the tax returns to the subject matter of the dispute and a compelling need for the tax returns exists because the information contained therein is not otherwise available Id at see also Dunkin Donuts Inc Marys Donuts Inc WL S.D Fla Case Document Entered on FLSD Docket Page of Doe Epstein Page No Cooper Hallgarten Co F.R.D S.D.N.Y Thus before the Court can order production of the requested returns in this matter the Plaintiff must satisfy the relevance and compelling need standards The Magistrates Order fails to address the relevancy standard and Plaintiff fails to provide same with supporting argument and case law and the Plaintiff fails to delineate any compelling need or availability of networth from other sources e.g a stipulation as to net worth which is certainly an alternative means To the extent that the Court determines that the tax returns are relevant and that there is a compelling need for at least their disclosure of Epsteins wealth for punitive damage purposes Epstein would agree to stipulate through his attorneys that he has a net worth of over Such a stipulation more than satisfies any necessity for the disclosure of the tax returns or any additional net worth information This court already ruled in DE that Epstein is not required to produce his financial history information to the extent same seeks to identify Epsteins assets where such assets are located and whether such assets have been transferred Id Moreover the names and addresses of his accounts financial planners and money managers were also sustained pursuant to the Fifth Amendment Id Therefore to the extent this court orders production of tax returns and to the extent Epsteins personal tax returns contain such information same should be redacted and subject to heightened confidentiality However this can only be done subsequent to an in camera hearing wherein this court can make a ruling on relevancy production redaction and confidentiality but only after the Plaintiff shows a compelling need Furthermore Epsteins complicated business transactions have no relevancy to this lawsuit and therefore evidence of same should not be produced The Fifth Amendment is a safe harbor for all citizens including those who are innocent of any underlying offense This request Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 at 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 Request Number 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 unreasonable and would therefore violate the Constitution In addition to and without waiving his constitutional protections Case Document Entered on FLSD Docket Page of Doe Epstein Page No 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 As to Request Number Defendant 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 See infra regarding private aircraft The Magistrates Order DE provides that Epsteins Fifth Amendment privilege does not extend to his passport because its existence is known to the government or is a foregone conclusion Id at First the magistrates order presupposes that Epstein has all his passports from up through to the current date and that the government has an exact copy of same Second the Order presupposes that U.S Customs and Border Patrol CPB keeps a record and/or has maintained records of Epsteins travel and whereabouts from up through to the current date Third assuming Epstein traveled internationally the Order presupposes that the CPB has records of all of Epsteins destinations and that other countries have shared that information with the CBP Case Document Entered on FLSD Docket Page of Doe Epstein Page No For instance CBP now offers Global Entry to enter the United States by kiosk However it is unclear whether the Global Entry kiosk records and copies the pages of a travelers destinations outside of the United States or does it simply record exit from and entry back into the United States Moreover it is unclear whether CBP maintains the Sample Customs Declaration Form for any period of time which form sets out i.e if filled out the countries visited by a traveler This Court cannot Compel Epstein to produce information in violation of his Fifth Amendment by simply stating that Epsteins passport is known to the government or is a forgone conclusion In fact from the websites listed herein any CBP documents or forms filled out by a traveler take on a complete different form when compared to an original passport which is initially issued with blank pages This Court would be hard pressed to find that the CBP has an exact copy of every page of every travelers passport Obviously this would create more document management than CBP anticipates on its website Moreover pursuant to C.F.R pilots of private aircraft are required to electronically transmit passenger and crew manifest information for all flights arriving into and/or departing out of the United States As this court knows Mr Edwards has conducted extensive discovery has questioned individuals as to whether Epstein owns private aircraft and has obtained certain flight manifests Arguably if such a procedure were followed in Epsteins case pursuant to C.F.R then Epsteins passport would arguably take on a substantially different form when compared to the information maintained by the CBP i.e information that was electronically transferred Under that circumstance CBP would not have an exact copy of Epsteins passports Accordingly the assumptions made in the Magistrates Order have serious Fifth Amendment implications in that the exact information sought is not See traveler/global entry See declaration form.xml Case Document Entered on FLSD Docket Page of Doe Epstein Page No known to the government and is not a forgone conclusion in that the government is not likely to have an exact copy of Epsteins passports Again Plaintiffs request for Epsteins passport reflecting travel to locations outside the United States between and 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 essence be compelling him to provide assertions of fact thereby admitting that such documents existed and further admitting that the documents in his possession or control were authentic As such if you believe Plaintiffs footnote at DE responding to this request could very well implicate Epsteins Fifth Amendment privilege The allegations of Epsteins use of interstate commerce and travel and any compelled production is clearly a violation of Epsteins Fifth Amendment rights 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 DE If not this court may be requiring Epstein to produce a log of his travels which this Court already sustained under the Fifth Amendment Plaintiff must also show that the requested information is relevant to the disputed issues of the underlying action See Yonng Circle Garage LLC Koppel So 2d Fla 4th DCA Once again a ruling on these issues cannot be made in a vacuum This court must as it has done in the past consider the other related cases and the allegations made therein when considering whether a response to a pm1icular discovery requests would implicate Epsteins Fifth Amendment rights See DEs and Case Document Entered on FLSD Docket Page of Doe Epstein Page No see also Eguitable 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 Wherefore Epstein respectfully requests 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 requests is substantial and real and not merely trifling or imaginary sustaining Epsteins Fifth Amendment Privilege as it relates to the above requests and denying Plaintiffs Motion in that regard reversing and/or revising the Magistrates Order DE relative to Request Numbers and and entering an amended order sustaining Epsteins objections to the Magistrates Order as to those specific requests and not requiring him to produce information relative to same and/or remanding this appeal to the Magistrate-Judge for her reconsideration of these portions of her order alternatively if this court rules that any of the information requested herein is relavent it shall only do so after an in camera hearing and only after this court ensures that each and every documents produced is the subject of a heightened confidentality order for such other and further relief as this Court deems just and proper Case Document Entered on FLSD Docket Page of Doe Epstein I Page No Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF I also certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this th day of February By f:-s ROBE ITTON JR ESQ Florida Bar I rcrit bclclaw om 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 sexabuseattomey.com Farmer Jaffe Weissing Edwards Fistos Lehrman PL Andrews Avenue Suite Fort Lauderdale FL Fax brad pathtoiustice.com Counsel for Plaintiff in Related Case No Case Document Entered on FLSD Docket Page of Doe Epstein Page No ahorowitz sexabuseattorney.com Counsel for Plaintiffs In related Cases Nos Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax jagesq bellsouth.net Counsel for Defendant Jeffrey 243stein Paul Cassell Esq Pro Hae 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 J,podhurst.com kezell podhurst.com Counsel/or Plaintiffs in Related Case
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