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 AMENDED MOTION FOR MODIFICATION AND RECONSIDERATION OF THE MAGISTRATES ORDER DATED JUNE DE OR ALTERNATIVE RULE APPEAL WITH INCORPORATED OBJECTIONS AND MOTION FOR PROTECTIVE ORDER AND MEMORANDUM OF LAW Defendant Jeffrey Epstein hereinafter Epstein by and through his undersigned attorneys hereby files his Motion for Modification and Reconsideration of the Magistrates Order DE pursuant to Rule or Alternative Rule Rule and Fed Civ the Motion and Rule Appeal and other applicable Federal Rules and Local Rules and Motion for Protective Order pursuant to Fed.R.Civ.P In support Epstein states Procedural Background This court entered an order DE stating that Alfredo Rodriguez Rodriguez DE must produce to the extent in his possession any and all journal notes diaries and writings relating to Jeffrey Epstein including the journal described by Case Document Entered on FLSD Docket Page of Rodriguez to Palm Beach Police that allegedly contains the names of girls who visited the residence the journal or book DE On June Epstein filed his initial Motion and Rule Appeal DE On or about that same day counsel for Jane Does came into possession of the journal or book by and through the Federal Public Defenders office Dave Brannon Esq At or around that same time Counsel for Jane Does provided a copy of the book or journal to counsel for Jane Doe Mr Bradley Edwards Upon learning of Jane Does counsel and Jane Does counsel coming into possession of the journal or book in the face of a Rule Appeal the undersigned and those attorneys reached an agreement that they will not disseminate the book to any other third parties or attach any portion of same to any pleadings pending the outcome of the Rule Appeal See irifra Argument As set forth in Rodriguezs deposition he was an employee of Epstein Rodriguez Deposition Exhibit A at Moreover as an individual employee Rodriguez claims he executed a confidentiality agreement with Epstein Exhibit A at Furthermore in his plea agreement Rodriguez admitted removing a book or journal from Epsteins home without Epsteins permission Plea Agreement Exhibit at In short according to Rodriguezs sworn testimony including his plea agreement he stole the property from Epsteins home and neither Epstein nor anyone else gave him permission to remove the book or journal conduct which constitutes a clear breach of his fiduciary obligations as an employee a clear breach of the Employment Agreement he testified he executed and again The initial Rule Appeal has been replaced with this Amended Rule Appeal and Motion for protective Order Both are timely under the applicable Rule Case Document Entered on FLSD Docket Page of according to Rodriguez own representations an invasion of Epsteins privacy rights and given Epsteins business potentially his conercially sensitive financial and trade secret information Courts have often enjoined the dissemination of confidential or private information wrongfully obtained from the employer by an now ex-employee during the course of his employment either through a free-standing action for injunctive relief or in conjunction with a tort action for among other things breach of fiduciary duty See Saini International Game Technology F.Supp.2d D.Nev court finds that company had shown likelihood of success in proving breach of implied covenant of good faith and fair dealing where former employees decision to distribute internal IGT documents to a party adverse to IGT in litigation demonstrates a deliberate attempt to violate the spirit of his confidentiality agreements with IGT injunction issued see also In re Zyprexa Injunction F.Supp.2d E.D.N.Y court has power to enjoin dissemination of stolen documents obtained in violation of courts protective order Even where the employee is not subject to a formal confidentiality agreement an employee may still be enjoined from using confidential information where he or she has obtained such information by wrongful means such as theft or intentional memorization Tactica Intern Inc Atlantic Horizon Intern Inc F.Supp.2d S.D.N.Y Standard Brands Inc Zumpe F.Supp D.La internal quotation marks omitted See A.H Emery Co Marean Products Corp F.Supp S.D.N.Y A confidential relationship exists between an employee and his employer It survives the termination of his employment It does not depend on any express contract Disclosure by an employee of a trade secret entrnsted to him by his employer in the course of his employment is a classic instance of a disclosure which constitutes a breach of confidence and which is therefore actionable It is not necessary that the employee expressly Case Document Entered on FLSD Docket Page of agree not to disclose it ajfd F.2d 2d Cir cert denied U.S The simple fact is that this court must determine in camera what is in the book or journal whether it in fact was taken in violation of an employees fiduciary and employment obligations and whether it contains information that impacts the privacy and business interests of his employer before rather than after issues of dissemination relevance and litigation use can be assessed Upon information and belief the book or journal does in fact contain the names of Epsteins business associates and other highly confidential commercially sensitive information that would be entirely irrelevant to this action and not reasonably calculated to lead to the discovery of admissible evidence.2 Accordingly there is commercially sensitive and trade secret information contained therein including but not limited to lists of business associates which could result in irreparable harm to Epstein if disseminated Lynch Silcox I WL S.D Fla According to Rodriguezs sworn testimony the book or journal is stolen property and thus subject to confidentiality privacy and fiduciary protection This court should have had the opportunity to review what is in this book or journal before it ordered carte blanch production of same After review and production of the book or journal to Epsteins civil lawyers the court should provide Epstein an opportunity to assert various legal objections including but not limited to those under the th 5th 6th and th Amendments as well as other legal objections and privileges such as those addressed in paragraphs and supra Therefore an in camera hearing should occur to determine what objections and privileges must be raised before further disclosure is made U.S Zolin U.S disclosing materials Because of the relief sought in this Rule Appeal Epsteins civil lawyers have not obtained a copy of said book or journal Case Document Entered on FLSD Docket Page of to the district court does not have the legal effect of terminating a privilege thereby allowing parties to disclose documents in camera and make that in camera request especially when there is a question as to whether those documents were obtained by uulawful means St Andrews Park Inc U.S Dept of Army Corps of Engineers F.Supp.2d S.D Fla court determined that an in camera proceeding was appropriate when it involved a small volume of documents see also In re Alberto Dugue B.R S.D Fla in camera inspection afforded adequate protection against disclosure of any privileged documentary material A trial court departs from the essential requirements of law in ordering production of confidential information without conducting an in camera review to determine whether the assertion of privilege is valid See Westco Inc Scott Lewis Gardening Trimming Inc So 3d Fla 4th DCA Moreover 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 The Supreme Court has consistently held that a person has no legitimate expectation of privacy in information he voluutarily turns over to the third parties Smith Maryland U.S S.Ct To the extent this book or journal exists Rodriguez admitted that he took same without Epsteins permission Therefore Epstein could not have voluutarily given same to him and as such Epstein has not waived any objections privileges and/or privacy interests in the book or journal Likewise Article Right of Privacy provides that every natural person has the right to be let alone and free from governmental intrusion into the persons private life Colorado Bertine U.S State Jardines So.3d Fla 3d DCA the Fourth Amendment clearly protects Case Document Entered on FLSD Docket Page of the right of people to be secure in their persons houses papers and effects from intrusions New Jersey T.L.O U.S search of a womans purse by a school administrator is a serious invasion of her legitimate expectation of privacy Based upon the foregoing Epstein should be afforded his due process rights to in camera judicial review of this alleged book and/or Journal in an effort to determine what if any legal objections and privileges should be vindicated prior to any disclosure or use of its contents by civil plaintiffs adversarial to the rights of the defendant Motion for Protective Order Rule Federal Rules of Civil Procedure provides the Court with the power to issue an order to protect a party or person from annoyance embarrassment oppression or undue burden or expense including forbidding inquiry into certain matters or limited the scope of disclosure or discovery to certain matters While the scope of discovery is broad it is not without limits Washington Brown Williamson Tobacco F.2d 11th Cir Courts have long held that while the standard of relevancy in discovery is a liberal one it is not so liberal as to allow a party to roan1 in the shadow zones of relevancy and to explore matters which does not presently appear germane on the theory that it might conceivably become so Food Lion Inc United Food Commercial Workers Intern Union F.3d C.A D.C string cite omitted See also Capco Properties LLC Monterry Gardens of Pinecrest Condo So 2d Fla 3d DCA holding that discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence Morton Plant Hospital Assn Inc Shallbas So 2d Fla 2d DCA holding that discovery should be denied when it has been established that the Case Document Entered on FLSD Docket Page of infonnation requested is neither relevant to any pending claim or defense nor will it lead to the discovery of admissible evidence citing Tanchel Shoemaker So 2d Fla 5th DCA Accordingly consistent with counsels agreement noted above a protective order should further be entered ordering that counsel for Jane Doe and counsel for Jane Does not disseminate the book to any third parties other than the Court through the pendency of the Rule Appeal and not attach any portions thereof to any pleading Courts have observed that private documents collected during discovery are not judicial records United States Anderson F.2d I th Thus while the public may enjoy the right of access to pleadings docket entries orders affidavits or depositions duly.filed Wilson American Motors Corp F.2d th Cir emphasis added common-law right of access does not extend to information collected through discovery which is not a matter of public record See Seattle Times Co Rhinehart U.S S.Ct L.Ed.2d Anderson F.2d at United States Gurney F.2d 5th cert denied sub nom Miami Herald Publishing Co Krentzman U.S S.Ct L.Ed.2d In addition discovery is neither a public process nor typically a matter of public record Historically discovery materials were not available to the public or press See Seattle Times Co Rhinehart U.S at pretrial interrogatories and depositions were not open to the public at common law Gannett Co DePasguale U.S S.Ct L.Ed.2d Burger C.J concurring It has never occurred to anyone so far as I am aware that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants Moreover documents collected during discovery are not Case Document Entered on FLSD Docket Page of judicial records Discovery whether civil or criminal is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation That is why parties regularly agree and courts often order that discovery information will remain private The request sought herein is reasonable as Mr Edwards himself in the past has spoken to the media several times as evidenced by his own affidavit attached hereto as Exhibit at paragraphs Based upon the foregoing the journal is not a public document subject to dissemination to any third parties including counsel for Jane Doe and Jane Does Nevertheless the court ordered that the journal or book be produced to Mr Horowitz who then subsequently produced it to counsel for Jane Doe Mr Bradley Edwards and it was produced prior to the defendant being able to intervene and seek reconsideration appeal or a protective order As such a protective order should be entered requiring Mr Horowitz and Mr Edwards from further disseminating the journal and book from attaching any portion of same to any pleadings or from in anyway relying on the contents of the journal or book to advance their litigation interests or to contact third parties identified therein It is therefore requested that the original and any copies of the journal or book be placed under seal and returned to the Federal Public Defender David Brannon pending the outcome of this Motion and/or alternative Rule Appeal If the court comes into possession of the book or journal the Court shall order each party in possession of same to follow the procedures outlined in Local Rule S.D Fla Local Rule Certification Counsel for the movant conferred with counsel for Jane Doe and Jane Does and with Case Document Entered on FLSD Docket Page of the exception of the agreement outlined above no other agreements were reached WHEREFORE Epstein requests that this court enter an order a granting the relief requested above inclusive of a modification of the order and/or reconsideration of same for the reasons set out above finding that an in camera hearing should occur to determine if any privileges objections privacy interests and/or discovery objections can be made by Epstein before further disclosure is made and granting a reasonable time to do so ordering that a protective order be entered requiring that Mr Horowitz and Mr Edwards not disseminate the journal and book to any third parties that each of them return same and all copies of same to the Federal Public Defender David Brannon pending the outcome of this Amended Rule Appeal and that they refrain from attaching any portion of the book or journal to any pleadings likewise if this court rules that the book or journal should or was rightfully produced Epstein respectfully requests that it do so only after an in camera hearing allowing the document to be reviewed and placed on a privilege log outlining why the content of those documents have no relevance and establishing why the danger of disclosure is more prejudicial than probative and after this court determines what portions of the requested document should be deemed privileged including but not limited to what portions should be protected from disclosure due to the confidentiality and privacy interests trade secret and commercially sensitive financial and business information Again the foregoing should only occur after this court ensures that the document i.e the journal or book produced is the subject of a order where disclosure will result in the disclosing party being held in contempt of court and or alternatively reversing the Magistrates Order relative to the carte blanch production of the journal or book DE pursuant to Mag Rule S.D Fla for the reasons set out above proper for such other and this Court deems just and on a ar MICHAEL PIKE ESQ Florida Bar Certificate of Service Case Document Entered on FLSD Docket Page of I HEREBY CERTIFY that a true copy of the foregoing was being served this day on all counsel of record identified on the following Service List via electronic mail EMAIL on this day of MAR I RI TON JR ESQ Florida Bar No rcrit bclclaw.com MICHAEL PIKE ESQ Florida Bar mpike bclclaw.com BURMAN CRITTON LUTTIER COLEMAN Banyan Blvd 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 Brad Edwards Esq Farmer Jaffe Weissing Edwards Fistos Lehrman PL Andrews Ave Suite Fort Lauderdale FL Fax Brad pathtojustice.com Cmailto bedwards n-a-law.com0unse1 for Plaintiff in Related Case No Paul Cassell Esq Pro Hae Vice South Room Salt Lake City UT Case Document Entered on FLSD Docket Page of West Palm Beach FL Fax jagesg bellsouth.net Counsel for Defendant Jeffrey Epstein Fax cassellp law.utah.edu Co-counsel for Plaintiff Jane Doe Isidro Garcia Esq Tara A Finnigan Esq Garcia Law Firm P.A Datura Street Suite West Palm Beach FL isidrogarcia iil.bellsouth.net Counsel for Plaintiff in Related Case No
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