Case Document Entered on FLSD Docket Page of Page No allegations in the related cases cannot be forgotten E.g see DE and Production of information in one case could provide a link in the chain of evidence used to prosecute Epstein for a crime or provide an indirect link to incriminating evidence in another case and in another jurisdiction Id and infra The Request for Production and the Responses thereto are cited herein and referenced in DEs and II The Fifth Amendment The Fifth Amendment serves as a guarantee against testimonial compulsion and provides in relevant part that 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 Notably a Motion for Reconsideration and/or Rule Appeal was filed relative to DE and thus the requests dealing with tax returns therein are similar in nature when compared to the instant request Case Document Entered on FLSD Docket Page of Page No testimonial aspect See United States Hubbell U.S Thus where the existence or location of the requested documents are unknown or where production would implicitly authenticate the requested documents 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 Request Number Request No All Federal and State income tax returns including all forms forms and schedules for tax years Response to Request Numbers Defendant is asserting specific legal objections including but not limited to relying on certain U.S constitutional privileges in declining at present to respond to this request for production based on advice from my counsel that I cannot provide answers/responses to questions relating to my financial history and condition without waiving my Fifth Amendment 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 Responding to the above financial request would require Epstein to identify information regarding the offenses that were the prior subject of a federal investigation as set forth in more detail in a supplementary response available to be provided to the court in camera and ex parte to the extent the good faith assertion of the privilege is in question The Fifth Amendment is a safe harbor for all citizens including those who are innocent of any underlying offense however responding to this and other relating inquiries have the potential to provide a link in a chain of information that would be protected More specifically the act of producing the above information may implicitly communicate statements of fact in that they would implicitly authenticate the requested information require Epstein to admit that the requested information exists and admit that same were in his possession custody and control The very act of production itself may Case Document Entered on FLSD Docket Page of Page No therefore provide a link in the chain of evidence adverse to Epstein see generally United States Hubbell US In addition to and without waiving his constitutional privileges Defendant also objects as the request for production as unreasonable overbroad confidential proprietary in nature and seeks 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 specific information requested as to tax returns also seeks information that is confidential and protected by federal law USC Further Plaintiffs Complaint alleges a time period of in or about Plaintiffs request seeks information for a time period from To the extent this court rules that some or all of the requested information be produced it should not be produced without limitations including confidentiality and should only be produced at the very end of litigation but before trial in order for Plaintiff to establish her burden making it apparent that punitive damages can be awarded As set forth in more detail in DE which was 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 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 reasonably calculated to lead to the discovery of admissible evidence Moreover the request here is more broad in nature than the requests made by Jane Doe seeking only personal tax returns i.e this request here seeks or may seek production of information related not only to Epsteins personal tax returns but also to any alleged tax returns filed by any businesses in which Epstein has an interest in and Jane Doe Request for Production attached as Exhibit A does not define what tax returns they seek Although page of DE seems to connote Plaintiffs seek only Epsteins personal tax returns those too should not be produced under the Fifth Amendment as more specifically set Case Document Entered on FLSD Docket Page of Page No forth herein Importantly the Magistrate did not make a ruling on relevancy as to the tax returns W-2s and I here and the Plaintiffs have not met the burden of establishing a compelling need for the specified infonnation 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 W-2s and I 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 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 piggyback on DE a similar order and thus seems to hone in on the required records exception for the proposition that as a matter of law Epsteins tax returns W-2s and must be produced because they are allegedly a mandatory part of a civil regulatory scheme may have assumed some public aspect and are also a forgone conclusion the concentration of this order being on the foregoing conclusion 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 Case Document Entered on FLSD Docket Page of Page No document were filed i.e known to other persons of the general public Id Even though the IRS may have certain returns or other information they remain confidential under U.S.C 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 and it assumes that the Federal Government currently has the specified information in its possession 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 Case Document Entered on FLSD Docket Page of Page No 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 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 I Case Document Entered on FLSD Docket Page of Page No 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 Cooper Hallgarten Co F.R.D S.D.N.Y Thus before the Court can order production of the requested returns W-2s and in this matter the Plaintiffs must satisfy the relevance and compelling need standards The Magistrates Order fails to address the relevancy standard and Plaintiffs fail to provide same with supporting argument and case law and the Plaintiffs fail to delineate any compelling need or availability of net worth 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 W-2s and/or 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 information or any additional net worth information This court already ruled in DEs and 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 transfe1Ted Id Moreover the names and addresses of his accounts financial plam1ers and money managers were also sustained pursuant to the Fifth Amendment Id Therefore to the extent this court orders production of all federal and state income tax returns W-2s and and to the extent Epsteins tax information personal or otherwise contain such information same should be redacted and subject to heightened confidentiality However this can only be done subsequent to an in camera hearing Case Document Entered on FLSD Docket Page of Page No wherein this court can make a ruling on relevancy production redaction and confidentiality but only after Plaintiffs show 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 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 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 request is substantial and real and not merely trifling or imaginary sustaining Epsteins Fifth Amendment Privilege as it relates to the above request and denying Plaintiffs Motion in that regard Case Document Entered on FLSD Docket Page of Page No reversing and/or revising the Magistrates Order DE relative to Request Number and entering an amended order sustaining Epsteins objections to the Magistrates Order as to that specific request 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 relevant it shall only do so after an in camera hearing and only after this court ensures that each and every document produced is the subject of a heightened confidentiality order for such other and further relief as this Court deems just and proper 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 March By ROBE JR ESQ Florida Bar No rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar Case Document Entered on FLSD Docket Page of Page No mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Flagler Drive Suite West Palm Beach FL Phone Fax Counsel for Defendant Jeffrey Epstein Certificate of Service Jane Doe No Jeffrey Epstein Case No 08-CV-80119-MARRA/JOHNSON Stuart Mermelstein Esq Adam Horowitz Esq Mermelstein Horowitz P.A Biscayne Boulevard Suite Miami FL Fax ssm sexabuseattorney.com ahorowitz sexabuseattorney.com Counsel for Plaintiffs In related Cases Nos Jack Alan Goldberger Esq Atterbury Goldberger Weiss P.A Australian Avenue South Suite West Palm Beach FL Fax i agesg bellsouth.net Counsel for Defendant Jeffrey Estein Brad Edwards Esq Farmer Jaffe Weissing Edwards Fistos Lehrman PL Andrews Avenue Suite Fort Lauderdale FL Phone Fax brad pathtoiustice.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 Case Document Entered on FLSD Docket Page of Page No Katherine Ezell Esq Podhurst Orseck P.A West Flagler Street Suite Miami FL Fax riosefsberg podhurst.com kezell podhurst.com Counsel for Plaintif.ft in Related Case
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