Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 1 of 15 JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-cv-80119-MARRA/JOHNSON I ----------- JANE DOE NO. 3, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 4, Plaintiff, VS. JEFFREY EPSTEIN Defendant. CASE NO.: 08-CV-80232-MARRA/JOHNSON CASE NO.: 08-CV-80380-MARRA/JOHNSON 1 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 2 of 15 JANE DOE NO. 5, Plaintiff, JEFFREY EPSTEIN, Defendant. CASE NO.: 08-CV-80381-MARRA/JOHNSON I CASE NO.: 08-80994-CIV-MARRA/JOHNSON JANE DOE NO. 6, Plaintiff, JEFFREY EPSTEIN, Defendant. __________ ____:! CASE NO.: 08-80993-CIV-MARRA/JOHNSON JANE DOE NO. 7, Plaintiff, JEFFREY EPSTEIN Defendant. __________ ____:! C.M.A., Plaintiff, JEFFREY EPSTEIN Defendant. CASE NO.: 08-80811-CIV-MARRA/JOHNSON I 2 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 3 of 15 JANE DOE, Plaintiff, JEFFREY EPSTEIN et al, Defendants. CASE NO.: 08-80893-CIV-MARRA/JOHNSON -----------~/ DOE II, Plaintiff, JEFFREY EPSTEIN et al, Defendants. CASE NO.: 09-80469-CIV-MARRA-JOHNSON 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. ---------------'/ Response To Plaintiffs', Jane Does 2-7, Motion for Protective Order (DE 223), With Incorporated Memorandum Of Law Defendant, JEFFREY EPSTEIN ("Epstein" or "Defendant"), by and through his undersigned attorneys, hereby files his Response In Opposition to Plaintiffs', Jane Does 3 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 4 of 15 2-7, Motion for Protective Order (DE 223), With Incorporated Memorandum Of Law (the "Motion for Protective Order"). In support, Mr. Epstein states as follows: I. Introduction & Argument 1. Plaintiffs' have joined in a collective effort to prevent discovery relating to their medical, psychological, criminal and employment histories, as well as their general backgrounds. Thus, Plaintiffs have umeasonably delayed discovery directed to them. Now, Plaintiffs go even further and request that this court preclude Epstein from investigating these matters through one of the most traditional methods available in the justice system, private investigators. Importantly, Plaintiffs' allegations do not state that Epstein's investigators have contacted them directly or indirectly - because they have not. Instead, Plaintiffs allege that Epstein's private investigators have contacted third parties, that is, Plaintiffs' "ex-boyfriends, former employers, and others who know nothing of the underlying facts of the case." The law does not forbid such an investigation. 2. Plaintiff, Jane Doe 7, filed a self-serving hearsay declaration (DE 251-2) wherein she claims she spoke to only one of the individuals apparently interviewed by Epstein's investigators; however, Plaintiff does not state that the investigators have identified Jane Doe 7 as a Plaintiff in this lawsuit. Defendant expects that in light of this court's recent order (DE 253) that Plaintiff will speciously amend her declaration. Nonetheless, Plaintiff cannot expect this court to limit Defendant's investigation efforts when Plaintiff, Jane Doe 7, has stated that investigators have NOT identified her as a Plaintiff in this lawsuit. (Declaration, DE 251-2, 15). Moreover, Haley Robson's affidavit tells a different story; that is, Jane Doe 7 approached her at a local bar and 4 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 5 of 15 discussed Jeffrey Epstein with her in a public forum, l.e., Jane Doe 7 discussed her lawsuit with Haley Robson in public, with others. See Exhibit "A". Even so, an elementary review of the alleged questioning by the investigators as set forth in Jane Doe 7's declaration shows that same is relevant (e.g., what was her reputation, did she date older rich guys, did she give massages for money etc ... ). Surely, Jane Doe 7 is not being heard to argue that her providing massages to "older-rich guys" is not relevant to this action. 3. Despite this court requiring that we proceed with discovery, Plaintiffs continue to make allegations in which they believe this court will allow them to dictate: (a) what is and what is not relevant to the defense of Epstein's case; (b) who has knowledge of the underlying facts of the case for investigation purposes; and ( c) what is and what is not discoverable. Under this scenario, Epstein might as well terminate his attorneys and allow the Plaintiffs' attorneys to represent him. 4. Epstein has been faced with several motions seeking to prevent or limit discovery with the primary goal being to send Epstein to trial without little or no discovery. Plaintiffs continue to avert discovery, and now they wish to shelter their pasts by requesting that this court enter an order broadly limiting the rules of discovery and thus preventing Epstein from investigating this matter and the claims Plaintiffs have alleged against him. This would undoubtedly result in reversible error. 5. As set forth in Epstein's Reply to Jane Doe 2-7 Response in Opposition to Epstein's Motion to Identify (the "Reply")(DE 247), Plaintiffs' have several preexisting and diagnosed conditions for which they now attempt to pawn off on Epstein in an effort to increase their damages. For instance, prior to any of their alleged encounters with 5 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 6 of 15 Epstein, certain Plaintiffs have been raped, sexually abused, molested and physically and verbally abused. Some of them have been diagnosed with post traumatic stress disorder or obsessive compulsive disorder, and some have suicidal thoughts and/or have attempted suicide on more than one occasion. Moreover, some of the Plaintiffs have witnessed close friends or family members commit suicide. While the above incidents are nothing less than tragic, the impact of those incidents on each of the Plaintiffs must be taken into consideration with the claims they make and the damages they seek against from Epstein. Plaintiffs have objected to all meaningful discovery, and now they seek to halt all traditional investigatory methods which may lead to evidence that may diminish or disprove their claims and/or evidence that may prove that Plaintffs have made inconsistent statements relative to their allegations. 6. As this court is well aware, utilizing investigators prior to and during a lawsuit is a common well-accepted method by which parties seek to obtain information not easily or otherwise obtainable about the claims asserted by them or against them in a lawsuit. Investigators are employed not only by individuals involved in lawsuits but also by insurance companies, small businesses, the State Attorneys' Office, the Public Defenders' Office, and the Federal Government. If this court's precludes Epstein's private investigators from seeking information from third parties about the claims asserted against him by Jane Does 2-7, it will undoubtedly violate Epstein's due process rights by preventing him from defending the allegations made against him and it will further open the floodgates to additional challenges from others who are the subject of an investigation commenced by insurance companies, small businesses, the State Attorneys' Office, the Public Defenders' Office and the Federal Government. 6 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 7 of 15 7. Plaintiffs claim in their Motion for Protective Order that retaining investigators in a case such as this one is not "customary." Such an assertion is not only nonsensical, but Plaintiffs also fail to cite one case or rule supporting their overbroad and self-serving theory. In fact, Plaintffs' theory would result in rewriting the rules of discovery, and the intended purpose of the rules would largely be disregarded (i.e., to obtain all information necessary to prosecute and/or defend claims such that the element of unfair surprise is diminished). 8. Despite this court ordering that we move these cases forward, Plaintiffs' strategy is to delay or prevent the very discovery this court said Defendant should undertake! Once again, this court has already ruled that Plaintiffs can only be deposed once (Case #80119, DE 98 at ,is - "Defendant is limited to a single deposition of each Plaintiff, during which defendant may depose the Plaintiff as both a party and a witness."). Plaintiffs, however, refused for several months to allow third-party subpoenas to be served to obtain among other things, medical, psychological, criminal and employment histories. The court recently entered an order allowing for Defendant to serve the third-party subpoenas. Even so, Plaintiffs now wish to halt any outside investigation of the claims they have asserted against Epstein. It appears Plaintiffs wish for this court to force Epstein to take their depositions without any relevant information in hand, and with the ultimate goal of sending Epstein to trial without any legitimate information and discovery that will reduce Plaintiffs' damages or contradict their claims. 9. Plaintiffs universally agreed at the June 12, 2009 hearing on Defendant's Motion to Stay that regular discovery could proceed. See Composite Exhibit "B" at pages 26-30 & 33-34. For instance, the court asked Plaintiffs' attorneys the following 7 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 8 of 15 questions: The Court: [] So again, I just want to make sure that if the cases go forward and if Mr. Epstein defends the case as someone ordinarily would defend a case being prosecuted against him or her, that that in and of itself is not going to cause him to be subject to criminal prosecution? (Ex. "A," p.26). *** The Court: You agree he should be able to take the ordinary steps that a defendant in a civil action can take and not be concerned about having to be prosecuted? (Ex. "A," p.27). *** The Court: Okay. But again, you're in agreement with everyone else so far that's spoken on behalf of a plaintiff that defending the case in the normal course of conducting discovery and filing motions would not be a breach? (Ex. "A," p.30). Mr. Horowitz - counsel for Jane Does 2-7: Subject to your rulings, of course, yes. (Ex. "A," p.30). *** The Court: But you're not taking the position that other than possibly doing something in litigation which is any other discovery, motion practice, investigations that someone would ordinarily do in the course of defending a civil case would constitute a violation of the agreement? (Ex. "A," p.34). Ms. Villafana: No, your honor. I mean, civil litigation is civil litigation, and being able to take discovery is part of what civil litigation is all about .... But. .. , Mr. Epstein is entitled to take the deposition of a Plaintiff and to subpoena records, etc. (Ex. "A," p.34) 10. It is clear from the transcript attached as Exhibit "B" that each of the Plaintiffs' attorneys, including Mr. Horowitz for Jane Does 2-7, expected and conceded that regular/traditional discovery would take place (i.e., discovery, motion practice, depositions, requests for records, and investigations). 11. Investigating any claims made against any Defendant is reasonable and should not be limited. For instance, assume an investigator contacts a third-party who 8 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 9 of 15 knew or dated one of the Jane Does before and/or after the Plaintiffs' alleged encounters with Epstein. Is it Plaintiffs' contention that an investigator cannot ask the ex-boyfriend or the friend: (a) whether Plaintiff ever mentioned Epstein; (b) whether Plaintiff gave Epstein massages; ( c) whether Plaintiff ever complained about her alleged experiences with Epstein; and/or ( d) whether Plaintiff ever seemed disturbed or traumatized about her alleged experiences with Epstein. If this court grants Plaintffs' request, it will result in Plaintiffs being afforded the opportunity to make sexual assault and battery allegations without affording Epstein the opportunity to defend those specific allegations. This is not the same as identifying each Jane Doe by name in a public proceeding accessible by all - it is basic behind the scenes discovery which seeks to investigate and question others on an individual basis. Plaintiffs' request, if granted, would violate Epstein's constitutional and due process rights to defend himself, and would further not allow Epstein a full opportunity to confront the Plaintffs that have made allegations against him with the necessary material to properly cross-examine them at trial. As such, this would violate Epstein's 6th Amendment Right to confront witnesses, and the due process clauses of the Fifth and Fourteenth Amendments. 12. It is simply not fair to allow the Plaintiffs to file lawsuits containing sexual-abuse allegations and then attempt to use the rules of discovery and those same sexual-abuse allegations as a sword to cut-out the heart of Defendant's case (and the defenses thereto) while simultaneously brandishing their allegations as a shield from disclosure of any Achilles heel. II. Memorandnm of Law a. The Allegations in the Amended Complaints As to Jane Does 2-7 9 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 10 of 15 13. The amended complaints filed by Jane Does 2-7 against Jeffrey Epstein make allegations of sexual assault and abuse upon a minor and seek damages in excess of $50 million. Jane Does 2-7 allege confusion, shame, humiliation, embarrassment, and severe psychological and emotional injuries. It is further alleged that they suffered, and will continue to suffer, severe and permanent traumatic injuries, including mental, psychological, and emotional damages. Plaintiffs allege intentional infliction of emotional distress, severe emotional distress, severe mental anguish and pain. They further allege that they suffered personal injury including mental, psychological and emotional damage. 14. It is the Defendant's job to obtain information to disprove and/or find information that diminishes Plaintiffs' damage claims. The rules of discovery contemplate same. b. The Rules of Discovery Contemplate the Hiring of Investigators 15. The rules of discovery contemplate the hiring of investigators, and also protect the information obtained by an investigator as the work-product of the hiring attorney because the materials are obtained or created in anticipation of litigation or for trial. See Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981); Fed.R. Civ.Pro. 26(b)(3)(B); Fla.R.Civ.Pro. 1.280; In re Faro Technologies Securities Litigation, 2008 WL 205318 (M.D. Fla. 2008); Lake Shore Radiator, Inc. v. Radiator Express Warehouse, 2008 WL 842989 (M.D. Fla. 2007)(protecting investigative materials as work-product); and Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 91 L.Ed. 451 (1947)(noting, among other things and subject to exception, that work-product includes information which an attorney secures from a witness while acting for his client 10 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 11 of 15 in anticipation of litigation or for trial). Florida even has its own investigative privilege codified in Fla. Stat. §493.6119, which also seeks to promote the rules of discovery and protect any investigators file. Accordingly, it is clear that the overall purpose of discovery under the Federal Rules is to obtain a full and accurate understanding of the true facts in order to obtain a fair and just result. United States v. Proctor & Gamble Co., 356 U.S. 677,682, 78 S.Ct. 983 (1958). 16. Defendant should not have to rely on only those "handpicked" witnesses disclosed by Plaintiff at depositions, through interrogatories or by way of Rule 26 disclosures who Plaintiffs and their lawyers have identified to: (a) test the Plaintiffs' credibility as to their alleged involvement with Epstein; (b) determine the alleged effects on Plaintiffs as a result of any involvement with Epstein; ( c) identify other females whom Plaintiffs took or might have met at Epstein's home; ( d) support Plaintiffs' claims that she sustained damages as a result of their alleged involvement with Epstein; and ( e) determine what Plaintiffs may have said to others regarding the alleged incidents. 17. Many of the Plaintiffs are claiming that Epstein is the sole or substantial contributing cause of their physical, psychological and emotional damages. However, as this court is aware, Plaintiffs have experienced several incidents in their lives which affected them emotionally and psychologically. See M•, Exhibits "C" and "D", Affidavits of Richard C.W. Hall, outlining the psychological issues experienced by Jane Does 4 and 6 as a result of incidents in their lives prior to Epstein, which cannot be discounted. For additional affidavits of the remaining Jane Does, see DE 247 and the 11 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 12 of 15 Affidavits attached thereto. As such, Plaintiffs should not be able to "handpick" who Defendant utilizes to refute their allegations. 18. Accordingly, Plaintiffs cannot expect this court to limit Epstein's investigation of the claims they assert against him. To hold otherwise will negatively effect information sought by way of depositions, independent medical evaluations, regular discovery and the like, thereby prejudicing Epstein and impacting the one day he will have in court to defend these allegations. III. Conclusion and Requested Relief 19. It is critical for this entire case that Epstein be able to conduct regular discovery, which includes investigating the claims Plaintiffs make against him by using an investigator. As Dr. Hall stated in his affidavits attached to DE 247, "there are a number of variables that combine to determine the effects of such alleged victimization, including the type and character of the alleged assault, and key victim variables such as demographics, psychological reactions at the time of the trauma, previous psychiatric or psychological history, previous victimization history ... , general personality dynamics and coping style, as well as sociocultural factors such as drug use/abuse; poverty; social inequity and/or inadequate social support; any previous history of abuse within or outside the family; whether individuals were abused by strangers, acquaintances or family members; and whether there was any history of indiscriminate behavior that may have placed them at increased risk .... " Id. It is also important to know about Plaintffs' " ... previous sexual conduct, contact with police or welfare agencies, alcohol or drug use/abuse, voluntary sexual activity, contraceptive use, genital infections, or apparent indifference to previous abuse. . . whether any significant psychiatric illnesses were 12 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 13 of 15 present, whether they were taking any medications (prescribed or non-prescribed), whether there had been previous suicide attempts, thoughts, plans, etc .... , and whether . . . Plaintiffs' relationships with their families and familial factors, including social disadvantage, family instability, impaired parent/child relationship, and parental adjustment difficulties [were present)" Id. It is therefore critical for Epstein to conduct a thorough investigation, which will confirm or rebut Plaintiffs" allegations in their respective complaints. To hold otherwise would cause this court to accept Plaintiffs' allegations as true without allowing Epstein to retain information to refute same. Wherefore, Epstein requests that this court deny Plaintffs' otion for Protective Order, and for such other and further relief as this co 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 re,<jlrd identi?t,I4e following Service List in the manner specified by CM/ECF on this . ~ day of , 2009 D. CRITTON, JR., ESQ. Florida Bar No. 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 13 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009

Page 14 of 15 561/842-2820 Phone 561/515-3148 Fax (Counsel for Defendant Jeffrey Epstein) 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 3 3160 305-931-2200 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] Fax: 305-931-0877 [email protected] [email protected] Counsel for Plaintiffs Counsel for Plaint/ff in Related Case No. 08-80893 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] 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 Plaint/ff 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 14 Case 9:08-cv-80119-KAM Document 262 Entered on FLSD Docket 08/11/2009