Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 1 of 11 JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 3, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 4, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 5, Plaintiff, Vs. JEFFREY EPSTEIN, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA/JOHNSON I CASE NO.: 08-CV-80232-MARRA/JOHNSON I CASE NO.: 08-CV-80380-MARRA/JOHNSON I CASE NO.: 08-CV-80381-MARRA/JOHNSON I Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 2 of 11 Doe 101 v. Epstein Page2 JANE DOE NO. 6, Plaintiff, JEFFREY EPSTEIN, Defendant. CASE NO.: 08-80994-CIV-MARRA/JOHNSON ----------~! CASE NO.: 08-80993-CIV-MARRA/JOHNSON JANE DOE NO. 7, Plaintiff, JEFFREY EPSTEIN Defendant. I C.M.A., CASE NO.: 08-80811-CIV-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN Defendant. I JANE DOE, CASE NO.: 08-80893-CIV-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN et al, Defendants. I DOE II, CASE NO.: 09-80469-CIV-MARRA-JOHNSON Plaintiff, JEFFREY EPSTEIN et al, Defendants. I Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 3 of 11 Doe 101 v. Epstein Page 3 JANE DOE NO. 101, Plaintiff, JEFFREY EPSTEIN Defendant. ___________ _,! JANEDOENO.102, Plaintiff, JEFFREY EPSTEIN, Defendant. ___________ _)! CASE NO.: 09-80591-CIV-MARRA-JOHNSON CASE NO.: 09-80656-CIV-MARRA/JOHNSON DEFENDANT .JEFFREY EPSTEIN'S RESPONSE TO PLAINTIFFS JANE DOE NOS. 101 and 102's MOTION FOR AN ORDER FOR THE PRESERVATION OF EVIDENCE & INCORPORATED MEMORANDUM OF LAW (dated 5/26/09, DE 114) Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned attorneys responds to the Plaintiffs' Jane Doe No. 101 and Jane Doe No. 102 ("Plaintiffs") Motion For And Order For The Preservation Of Evidence And Incorporated Memorandum Of Law, [DE 114], and states: 1. Plaintiffs once again mislead and mischaracterize the criminal counts to which EPSTEIN pied guilty. Contrary to Plaintiffs' representations in 'l[l of their motion and in their memorandum of law, EPSTEIN pied guilty to one count of felony solicitation (which was not related to a minor), under §796.07(2)(f), Fla.Stat., and one count of procuring a minor for prostitution under §796.03, Fla. Stat. Plaintiffs' reference to the "pleas of 'guilty' ... to various Florida state crimes involving the solicitation of minors for the prostitution and procurement of Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 4 of 11 Doe 101 v. Epstein Page4 minors for the purposes of prostitution" mischaracterizes the specific counts to which EPSTEIN pied guilty. 2. As to Plaintiffs' allegations in 'll'll 2 and 3, many of the Plaintiffs' allegations are without any factual basis and know such assertions to be false and untrue. 3. Defendant agrees with Plaintiff's assertion that the Palm Beach Police Department (PBPD) executed a search warrant at EPSTEIN's Palm Beach mansion on October 25, 2005. See '1!4 Plaintiffs' motion. 4. Defendant's attorneys have no objection to an order to preserve evidence similar to the one entered in the case of Doe v. Epstein, et al, Case No. 08-80804-CIV- MARRNJOHNSON, [DE 20], and attached hereto as Exhibit A. EPSTEIN's attorneys are unaware of any items referenced in Plaintiffs' motion, '1!5-6, having been returned to EPSTEIN or his attorneys, but will agree to a preservation of such items to the extent such items exist. 5. As to '1!7 of Plaintiffs' motion, EPSTEIN and his attorneys have no objection to the referenced authorities, (PBPD, FBI, USAO, and PBSAO), preserving items to the extent such items even exist, in a manner that said authorities deem appropriate. 6. As to 'll'l!8, 9, and 10 of Plaintiffs' motion re: documents, Defendant has asserted in other matters and asserts here, specific legal objections as well as his U.S. constitutional privileges, as follows: 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 Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 5 of 11 Doe 101 v. Epstein Page5 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 410 and 408, and §90.410, Fla. Stat. Further Defendants objects as the request to preserve evidence is overly broad and includes 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. 7. Responding to the grossly overly broad list and categories of documents and items alleged in Plaintiff's motion ('1['1[8-10) involves a testimonial component. The Fifth Amendment Privilege extends to the act of production where, as here, it involves a self-incriminating testimonial communication or "a compelled testimonial aspect." United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037 (2000); Fisher v. United States, 425 U.S. 391 (1976); McCormick on Evidence, Title 6, Chap. 13. The Privilege Against Self-Incrimination, §138 (6 th Ed.). See also Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "[i]t would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); Hoffman v. U.S., 71 S.Ct. 814,818 (1951), and progeny). The Fifth Amendment Privilege may be invoked in a civil action where a litigant or witness is being asked to provide information or respond to a question that may incriminate him in a crime. See generally, DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4 th DCA 1983). The privilege against self-incrimination may be asserted during discovery when a litigant Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 6 of 11 Doe 101 v. Epstein Page6 has "reasonable grounds to believe that the response would furnish a link in the chain of evidence needed to prove a crime against a litigant." A witness, including a civil defendant, is entitled to invoke the Fifth Amendment privilege whenever there is a realistic possibility that the answer to a question could be used in anyway to convict the witness of a crime or could aid in the development of other incriminating evidence that can be used at trial. Id; Pillsbury Company v. Conboy, 495 U.S. 248, 103 S.Ct. 608 (1983). The United States Supreme Court has made clear that the scope of the Fifth Amendment Privilege includes the circumstances as here "the act of producing documents in response to a subpoena (or production request) has a compelled testimonial aspect." United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043 (2000). In explaining the application of the privilege, the Supreme Court stated: We have held that "the act of production" itself may implicitly communicate "statements of fact." By "producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic."FN19 Moreover, as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. FNZO The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating. FN19. ''The issue presented in those cases was whether the act of producing subpoenaed documents, not itself the making of a statement, might nonetheless have some protected testimonial aspects. The Court concluded that the act of production could constitute protected testimonial communication because it might entail implicit statements of fact: by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic. United States v. Doe. 465 U.S., at 613, and n. 11, 104 S.Ct. 1237; Fisher, 425 U.S., at 409-410, 96 S.Ct. 1569; id., at 428, 432, 96 S.Ct. 1569 (concurring opinions). See Braswell v. United States, (487 U.S.,] at Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 7 of 11 Doe 101 v. Epstein Page7 104, 108 S.Ct. 2284; ( id.,] at 122, 108 S.Ct. 2284 (dissenting opinion). Thus, the Court made clear that the Fifth Amendment privilege against self-incrimination applies to acts that imply assertions of fact." ... An examination of the Court"s application of these principles in other cases indicates the Court's recognition that, in order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a 'witness' against himself." Doe v. United States, 487 U.S., at 209-210, 108 S.Ct. 2341 (footnote omitted). FN20. See App. 62-70. Thus, for example, after respondent had been duly sworn by the grand jury foreman, the prosecutor called his attention to paragraph A of the Subpoena Rider (reproduced in the Appendix, infra, at 2048-2049) and asked whether he had produced "all those documents." App. 65. Finally, the phrase "in any criminal case" in the text of the Fifth Amendment might have been read to limit its coverage to compelled testimony that is used against the defendant in the trial itself. It has, however, long been settled that its protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence. Thus, a half century ago we held that a trial judge had erroneously rejected a defendant's claim of privilege on the ground that his answer to the pending question would not itself constitute evidence of the charged offense. As we explained: "The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 0951). Compelled testimony that communicates information that may "lead to incriminating evidence" is privileged even if the information itself is not inculpatory. Doe v. United States, 487 U.S. 201, 208, n. 6, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). It's the Fifth Amendment's protection against the prosecutor's use of incriminating information derived directly or indirectly from the compelled testimony of the respondent that is of primary relevance in this case. In summarizing its holding regarding the application of the Fifth Amendment Privilege to a production request, the Hubbell Court left "no doubt that the constitutional privilege against self incrimination protects" not only "the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 8 of 11 Doe 101 v. Epstein Page8 potentially incriminating evidence," but the privilege also "has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources." At 43, and 2047. Here, Plaintiffs' motion to preserve evidence by listing a large inventory of items is in reality no different that propounding a discovery request upon Defendant, and thus, Defendant is afforded the protection of the Constitutional privileges asserted herein. 8. As stated above, Defendant and Defendant's attorneys have no objection to the entry of an order similar to Exhibit A hereto. WHEREFORE, Defendant requests that the Court enter an order similar to that as entered in Exhibit A hereto. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CMJECF. 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 i: CMJECF on this ft>Vday of June , 2009 Case 9:08-cv-80119-KAM Document 151 Entered on FLSD Docket 06/10/2009

Page 9 of 11 Doe 101 v. Epstein Page9 By: ___ _,_ ____ _ ROBERT D. RITTON, JR., ESQ. Florida Bar o. 224162 [email protected] MICHAEL J. PIKE, ESQ. 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 151 Entered on FLSD Docket 06/10/2009

Page 10 of 11 Doe 101 v. Epstein Page 10 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 Plaintiffs 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 Avenue 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. Pro Hae 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 151 Entered on FLSD Docket 06/10/2009