Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN Defendant. ----------~/ JANE DOE NO. 3, Plaintiff, vs. JEFFREY EPSTEIN Defendant. I ----------- JANE DOE NO. 4, Plaintiff, vs. JEFFREY EPSTEIN Defendant. I ----------- JANE DOE NO. 5, CASE NO.: 08-CV-80119-MARRA/JOHNSON CASE NO.: 08-CV-80232-MARRA/JOHNSON CASE NO.: 08-CV-80380-MARRA/JOHNSON CASE NO.: 08-CV-80381-MARRA/JOHNSON Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 2 of 13 Doe 101 v. Epstein Page2 Plaintiff, JEFFREY EPSTEIN, Defendant. ___________ / JANE DOE NO. 6, Plaintiff, JEFFREY EPSTEIN, Defendant. -------------'! JANE DOE NO. 7, Plaintiff, JEFFREY EPSTEIN Defendant. I C.M.A., Plaintiff, JEFFREY EPSTEIN Defendant. I JANE DOE, CASE NO.: 08-80994-CIV-MARRA/JOHNSON CASE NO.: 08-80993-CIV-MARRA/JOHNSON CASE NO.: 08-80811-CIV-MARRA/JOHNSON CASE NO.: 08-80893-CIV-MARRA/JOHNSON Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 3 of 13 Doe 101 v. Epstein Page 3 Plaintiff, JEFFREY EPSTEIN et al, Defendants. I DOE II, CASE NO.: 09-80469-CIV-MARRA-JOHNSON Plaintiff, JEFFREY EPSTEIN et al, Defendants. I JANE DOE NO. 101, CASE NO.: 09-80591-CIV-MARRA-JOHNSON Plaintiff, JEFFREY EPSTEIN Defendant. I JANE DOE NO. 102, CASE NO.: 09-80656-CIV-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN, Defendant. I DEFENDANT, JEFFREY EPSTEIN'S REPLY TO JANE DOE NO. 101 AND JANE DOE NO. 102'8 RESPONSE IN OPPOSITION TO MOTION TO COMPEL AND IDENTIFY JANE DOE NUMBERS 101 AND 102 IN THIRD PARTY SUBPOENAS FOR PURPOSES OF DISCOVERY Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 4 of 13 Doe 101 v. Epstein Page4 Defendant, Jeffrey Epstein, ("Mr. Epstein"), by and through his undersigned attorneys, hereby files his Reply To Jane Doe No. IOI And Jane Doe No. 102's Response In Opposition To Motion To Compel and Identify Jane Doe Numbers IOI and 102 in Third Party Subpoenas For Purposes of Discovery: I. Plaintiffs' Response in Opposition is set forth in DE 124. Plaintiffs' response is drafted in a calculated effort to continue to argue issues relating to 18 U.S.C. 2255 rather than deal solely with the issue of identification of the Plaintiffs. Obviously, Plaintiffs' identification takes a second seat to Plaintiffs' attempt to continue to argue issues that are or may be set forth in their opposition to Epstein's motion to dismiss, which largely deals with issues surrounding 18 U.S.C. 2255. See Defendant's Motion to Identify Jane Doe 101 [DE 16]. 2. In their response, Plaintiffs seem to forget that they brought this lawsuit against Epstein. Plaintiffs claim they will suffer physical injury, pain and suffering, emotional distress, psychological and psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss of educational opportunities, loss of self-esteem, loss of dignity, invasion of her privacy, separation from her family, medical and psychological expenses, loss on income, loss of the capacity to earn income in the future, and loss of the capacity to enjoy life. See lUk, iJiJ28, Comp .. DE I; see also iJiJ36, 40, 44, 48, 52, 56, 61, 65, and 69, Comp., DE I. Jane Doe 101 and 102 came to Defendant's home on a number of occasions. Jane Doe 101 brought her friend, Haley Robson (referenced by name in a number of actions) to experience this same "trauma" - it does not make sense. Jane Doe 101 had issues associated with law enforcement involving drugs, battery, fleeing police; Jane Doe 102 claims to have been raped by two (2) individuals in 1998; pre any involvement with Epstein. This type of information is relevant, and Defendant is entitled Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 5 of 13 Doe 101 v. Epstein Page 5 to fully explore it. As such, Plaintiffs' have placed their past and medical history as well as education, social, work, interpersonal, recreational legal, criminal and other aspects of their past and current lives at issue in light of the allegations they allege in their respective complaints. Despite Plaintiffs contention and effort to mislead this court, Epstein does not wish to publicize Plaintiffs' names in an effort to embarrass them. On the contrary, Epstein wishes to defend the claims made against him and dispute the damages Plaintiffs' claim by conducting discovery. Again, Plaintiffs allege substantial economic and non-economic personal injury damages. If this Court prevents Epstein from serving Third-Party Subpoenas identifying Plaintiffs, Epstein will be denied his due process rights by Plaintiffs in that he will be prevented from conducting broad, open and liberal discovery. The undersigned must serve subpoenas on medical doctors to obtain medical information related to Plaintiffs' alleged psychological and physical damages and or other third parties such as employees for other damages as same goes to the heart of Epstein's defenses and Plaintiffs' damages. Plaintiffs' intent is to have Epstein try this case without having obtained relevant and meaningful discovery. Plaintiffs proposal will chill Defendant's ability to fully and fairly access and obtain discovery. See infra. 3. Plaintiffs' counsel are competent trial attorneys well versed in many areas of the law, including that of personal injury. Despite the foregoing, Plaintiffs counsel, in some highlighted effort to resolve the discovery issues Plaintiffs have intentionally created in an effort to chill discovery, offers to provide only the documents that Plaintiffs' counsel obtains from third parties through its own selective procedures, and only after Plaintiffs' counsel has been able to cull through same. Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 6 of 13 Doe 101 v. Epstein Page 6 4. It is hard to believe that any competent Jaw firm responsible to his/her client would ever allow an opposing party to request records and provide those records to the requesting firm only after the opposing firm had an opportunity to review and filter through same. Plaintiffs, in this case, seek thousands if not millions in damages, including physical and emotional/mental and personal injury type, and Epstein must and is entitled to conduct his own discovery thereon. No valid discovery objections or exemptions exist preventing necessary and reasonable discovery. To hold otherwise prevents Mr. Epstein from preparing and defending this matter and denies to him his right to fully and fairly defend these cases. 5. Plaintiffs cite a host of cases for the proposition that anonymity should be granted when, for instance, a fear of retaliation or ostracism exists. Inconsistent with the cases Plaintiffs cite, not once do they state that Plaintiffs will be embarrassed, ostracized, or psychologically and emotionally unable to proceed with the action. Even so, embarrassment alone is not enough. See Response to Motion to Proceed Anonymously. In determining whether to allow a party to proceed with litigation anonymously, a court must consider whether the identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties. Doe. No. 2 v. Kolko, 242 F.R.D. 193, 195-98 (E.D.N.Y. 2006), citing, Fed.Rules Civ.Proc.Rule l0(a), 28 U.S.C.A. Further, Plaintiffs cite cases wherein a psychologist opined that plaintiff suffered or will suffer sever emotional distress. Id. Here, no such affidavit has been provided and/or submitted to this court to justify Plaintiffs requests to proceed anonymously. Good cause must also be shown in order to proceed anonymously. Good cause for a protective order, which Plaintiffs have not filed here, is established upon a showing that disclosure will work a clearly defined and serious injury to the party seeking closure; the injury Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 7 of 13 Doe 101 v. Epstein Page? must be shown with specificity. See Doe v. Evans, 202 F.R.D. 173, 176 (E.D. P.A. 2001). Thus, Plaintiffs have not met their burden of persuasion. Id. Plaintiffs fail to show good cause in that they have not clearly defined what injury they will sustain if not permitted to proceed anonymously; they have only offered speculation. Such a failure is fatal to their request to proceed anonymously. See infra. 6. In Kolko, a case cited by the Defendants, the court specifically found that proceeding anonymously (i.e., in the style of the case only) would not inhibit discovery. Here, preventing Epstein from identifying Plaintiffs' in subpoenas and other type discovery overwhelmingly inhibits discovery. See Doe v. Evans, 202 F.R.D. at 176 (E.D. P.A. 2001) ( denying protective order where alleged sexual assault victim did not demonstrate a serious specific injury and allowing Defendants to identify Plaintiff in discovery because holding otherwise would "chill defendants ability to conduct discovery"). Plaintiffs obviously cannot cite one case preventing open and broad discovery or preventing the identification of Plaintiffs in third-party subpoenas or in other discovery. While Plaintiffs cite to each of above cases, it is misleading for Plaintiffs to suggest the case did not allow for the service of third party subpoenas with the correct names. 7. Next, Plaintiffs' cite a host of criminal cases and statutes which this court has an obligation to distinguish when attempting to in artfully apply same in the civil context. For instance, while Fla. Stat. §794.024 and §794.026 appear to prevent the disclosure of the identity of a sexual assault victim, Fla. Stat. §794.024 only applies to public employees (and to investigations and state prosecutions related to claims of rape) and §794.026 only applies if disclosure is being done "with a reckless disregard for the highly offensive nature of the Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 8 of 13 Doe 101 v. Epstein Page8 publication." Rather, disclosure is being requested in order to properly litigate and defend this matter. Further, §794.026 does not (emphasis added) prevent the disclosure of the name of a sexual assault victim - it only allows for civil remedy as a result thereof assuming one meets the criteria to recover (i.e., disclosure with a reckless disregard for the highly offensive nature of the publication). Again, Epstein agreed to enter into a confidentiality agreement and, if required by this court, to redact full names from any document filed with the Court. 8. Next, the language of Fla. Stat. §92.56 makes it clear that the statute only applies criminal proceedings brought by the State of Florida, not civil proceedings. As set forth by the Office of Attorney General, Fla. Stat. §92.56 and Fla. Stat. §794.024 "were created by the Crime Victims Protection Act." See 2003 WL 22971082 (Fla. A.G.). Even though Fla. Stat. §92.56 only applies to criminal proceedings, subsection (2) thereof allows for the accused to apply for an order of disclosure to prepare a defense in a criminal proceeding. 9. In addition, Plaintiffs cite to Fed.R.Evid. 412. The Advisory Committee Notes to Rule 412, Fed.R.Evid, makes clear that the procedures to determine admissibility of an alleged victim's/plaintiffs sexual conduct or activity in civil cases does not apply to discovery of such information. Rather, discoverability of such information is governed by Rule 26, Fed.R.Civ.P ., pursuant to which the scope of discovery is broad. Rule 412, entitled "Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition," provides in relevant part - (a) Evidence generally inadmissible.--The following evidence is not admissible in any civil . . . proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and ( c ): (1) Evidence offered to prove that any alleged victim engaged 111 other sexual behavior. Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 9 of 13 Doe 101 v. Epstein Page9 (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions.- * * * * * (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. ( c) Procedure to determine admissibility.-- (!) A party intending to offer evidence under subdivision (b) must- (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. In confirming that Rule 412 does not control the discoverability of such information, the Advisory Committee Notes (1994 Amendments) state - The procedures set forth in subdivision ( c) do not apply to discovery of a victim's past sexual conduct or predisposition in civil cases, which will be continued to be governed by Fed. R. Civ. P. 26. In order not to undermine the rationale of Rule 412, however, courts should enter appropriate orders pursuant to Fed. R. Civ. P. 26 (c) to protect the victim against unwarranted inquiries and to ensure confidentiality. Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery. In an action for sexual harassment, for instance, while some evidence of the alleged victim's sexual behavior and/or predisposition in the workplace may perhaps be relevant, non-work place conduct will Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 10 of 13 Doe 101 v. Epstein Page 10 usually be irrelevant. Cf Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 962-63 (8th Cir. 1993) (posing for a nude magazine outside work hours is irrelevant to issue ofunwelcomeness of sexual advances at work). Confidentiality orders should be presumptively granted as well. (Emphasis added). In accordance with Rule 412 and Rule 26, Epstein seeks discovery of Plaintiffs' physical, emotional and psychological history. We are not at the admissibility phase, which Rule 412 addresses. We are at the discovery phase, and identification of the Plaintiffs is required in order to properly litigate and defend the claims against Epstein. Defendant has no other means of obtaining any information about the Plaintiffs' without being permitted to identify Plaintiffs in third party subpoenas and in discovery. Counsel for C.M.A. recognized this conundrum and agreed to identifying C.M.A. and other attorneys in the state court cases and in one of the federal matters have agreed to serve subpoenas with full indentifying information as Jong as the documents do not disclose the name in the court file. See Exhibit "A". WHEREFORE, Defendant, Mr. Epstein, requests this court allow it to identify Plaintiffs in the style of this case and that Defendant be permitted to identify Plaintiffs in discovery an for such other and further relief as this court deems just and proper. Certificate of Service Clerk of the Court using CM/ECF. I also certify that the foregoing document i being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this 1 day of June , 2009. Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 11 of 13 Doe 101 v. Epstein Page 11 N, JR., ESQ. Flo. 62 rcrit MI SQ. Florida Bar #617296 [email protected] BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 561/842-2820 Phone 561/515-3148 Fax ( Counsel for Defendant Jeffrey Epstein) Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009

Page 12 of 13 Doe 101 v. Epstein Page 12 Certificate of Service Jane Doe No. 2 v. Jeffrey Epstein Case No. 08-CV-80119-MARRA/JOHNSON Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Mermelstein & Horowitz, P.A. 18205 Biscayne Boulevard Suite 2218 Miami, FL 33160 305-931-2200 Fax: 305-931-0877 [email protected] [email protected] Counsel for Plaintiffe in Related Cases Nos. 08-80069, 08-80119, 08-80232, 08-80380, 08- 80381, 08-80993, 08-80994 Richard Horace Willits, Esq. Richard H. Willits, P.A. 2290 10th A venue North Suite 404 Lake Worth, FL 33461 561-582-7600 Fax: 561-588-8819 Counsel for Plaintiff in Related Case No. 08- 80811 [email protected] Jack Scarola, Esq. Jack P. Hill, Esq. Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 561-686-6300 Fax: 561-383-9424 [email protected] [email protected] Counsel for Plaintiff, C.M.A. Brad Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard Suite 1650 Fort Lauderdale, FL 33301 Phone:954-522-3456 Fax: 954-527-8663 [email protected] Counsel for Plaintiff in Related Case No. 08- 80893 Paul G. Cassell, Esq. ProHac Vice 332 South 1400 E, Room 101 Salt Lake City, UT 84112 801-585-5202 801-585-6833 Fax [email protected] Co-counsel for Plaintiff Jane Doe Isidro M. Garcia, Esq. Garcia Law Firm, P.A. 224 Datura Street, Suite 900 West Palm Beach, FL 33401 561-832-7732 561-832-7137 F [email protected] Counsel for Plaintiff in Related Case No. 08- 80469 Robert C. Josefsberg, Esq. Katherine W. Ezell, Esq. Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130 305 358-2800 Fax: 305 358-2382 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009