Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009

Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CIV-80119-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. --------------'/ Related cases: 08-80232, 08-08380, 08-80381, 08-80994, 08-80993, 08-80811, 08-80893, 09-80469, 09-80591,09-80656,09-80802,09-81092 --------------'/ EPSTEIN'S MOTION TO OU ASH AND MOTION FOR PROTECTIVE ORDER AND OBJECTIONS AS TO THE SUBPOENA SERVED ON JP MORGAN CHASE & CO WHICH IS INCORRECTLY TITLED AND ADDRESSED TO BEAR STEARNS Defendant, JEFFREY EPSTEIN, pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii), moves to quash the September 18, 2009 (incorrectly dated) ("Subpoena") attached hereto as Exhibit "A" served by Plaintiff, Jane Doe ("Jane Doe"), on JP Morgan Chase & Co ("JP Morgan Chase")Which Is Incorrectly Titled And Addressed To Bear Stearns, and moves for a protective order pursuant to Fed. R. Civ. P. 26(c) and asserts various objection thereto, and states: I. Purportedly, on September 18, 2009 (SIC), Jane Doe served the Subpoena (attached as Exhibit A) on JP Morgan Chase, seeking production of: a. The Complete Personnel File of Jeffrey Epstein, including all correspondence to and from Mr. Epstein and/or any third parties, employment applications, references, recommendations, warnings, reports, incident reports, and all other documentation for the entire time Mr. Epstein began any relationships whatsoever with Bear Stearns through the present (2009). Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009

Page 2 of 9 Jane Doe v. Epstein b. The Complete file of Mr. Epstein's business and/or individual accounts and/or institutions for which Mr. Epstein was responsible or affiliated from the beginning of Mr. Epstein's employment relationship with Bear Stearns through to the present (2009). c. A Compete list of the person's with the most knowledge from Bear Stearns of: (i) the hiring of Jeffrey Epstein by Bear Stearns, (ii) the employment of Jeffrey Epstein by Bear Stearns, (iii) the departure of Epstein from employment with Bear Stearns, (iv) Epstein's relationship with Bear Stearns subsequent to his departure as an employee of Bear Stearns and (v) Epstein's role as it relates to the prosecution of Bear Stearns employees or executives. 2. As set out in JP Morgan Chase's objections to the Subpoena (attached as Exhibit "B"), which are incorporated herein by reference, Epstein also objects to the Subpoena pursuant to Rule 45(c)(2)(B) on the following grounds: a. The Subpoena is jurisdictionally defective in that it is issued out of the Southern District of Florida and addressed to a NY entity. b. It appears to lack a valid Civil Action Number. c. It does not provide sufficient time to respond as dated and appears to be improperly dated (i.e., September 18, 2009). d. The Subpoena is overly broad, irrelevant, harassing, vague, ambiguous, seeks confidential and proprietary information, seeks confidential and proprietary financial information (most of which pertain to unknown and unidentified third parties), is unduly burdensome and is not reasonably calculated to lead to the discovery of admissible evidence. e. JP Morgan Chase has responded, despite its objections, that the information is not in its possession, custody or control, and seeks to impose obligations on JP Morgan chase beyond those required by the Federal Rules of Civil Procedure. f. The Subpoena appears to seek information that is protected by the attorney-client and work-product privileges (e.g., recommendations, warnings, reports, incident reports, business and/or individual accounts and/or institutions for which Mr. Epstein was responsible or affiliated from the begim1ing of Mr. Epstein's employment relationship with Bear Stearns through to Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009

Page 3 of 9 Jane Doe v. Epstein the present, the hiring of Jeffrey Epstein by Bear Stearns, the employment of Jeffrey Epstein by Bear Stearns, the departure of Epstein from employment with Bear Stearns, Epstein's relationship with Bear Stearns subsequent to his departure as an employee of Bear Stearns and Epstein's role as it relates to the prosecution of Bear Stearns employees or executives and it seeks to impose an undue burden and expense on JP Morgan Chase as stated in its attached objections. 3. Epstein's work history is not an issue in this case, and no allegations are made in the complaint relative to same. 4. Moreover, the clients he may have serviced while employed at Bear Stearns are not relevant to the claims alleged, and those individuals that may have been his clients have a Constitutional Right to Privacy, especially with regard to their financial information (i.e., the Subpoena seeks all communications between Epstein and all third parties and, as well, seeks to identify business and/or individual accounts and/or institutions for which Mr. Epstein was responsible). The Subpoena is not narrowly tailored to prevent disclosure of third-party financial information. Even so, JP Morgan Chase has responded that no such documents are within its possession, custody or control. Therefore, the Subpoena is moot and should be quashed. 5. Plaintiff is not entitled to "carte blanche" access to ALL of Defendant's clients' business and/or individual accounts and/or institutions he was responsible for during his alleged employment with Bear Stearns. Is Plaintiffs counsel serious? 6. When the purpose of the discovery is to obtain information for reasons other than the prosecution or defense of the lawsuit, discovery will be denied in its entirety." See, Ocean Atlantic Woodland Corporation v. DRH Cambridge Homes, Inc., 262 F.Supp.2d 923 (N.D. Ill. 2003). Epstein has the right to object to these Subpoenas because he has a personal right or privilege with respect to the subject matter requested in the Subpoenas, i.e., his financial Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009

Page 4 of 9 Jane Doe v. Epstein infonnation or "individual accounts", etc. See, Smith v. Midland Brake, Inc., 162 F.R.D. 683 (D. Kansas, 1995); Berkeley v. Eisen, 699 So.2d 789 (Fla. 4th DCA 1999) (Court orders compelling discovery constitute a state action that can impinge on an individual's constitutional rights, including the right of privacy provided under the Florida Constitution - including the third parties Plaintiff seeks to identify through financial documents). It is well recognized that a person's financial information is entitled to protection by the state constitutional right of privacy if there is no compelling or relevant reason to compel disclosure. See Mogul v. Mogul, 730 So.2d 1287 (Fla. 5th DCA 1999). Here, there is no relevant or compelling reason for the Plaintiff to compel the financial information other than to attempt to harass the Defendant, which includes Epstein's financial information and other third-party financial information. To the extent the production of information reveals the names of Epstein's clients and/or a client list(s) could be derived therefrom, that too could violate Epstein or JP Morgan Chase's trade-secret and/or commercially sensitive information as same is proprietary business data. Berkeley v. Eisen, 699 So.2d 789 (Fla. 4th DCA l 997)(The significant harm to most, if not all, of certain unsuspecting individuals in allowing such a fishing expedition (i.e., the disclosure of their names) is great and far outweighs the plaintiff's need for same. Non-party clients have a reasonable expectation of privacy). 7. Florida Statute §655.059 sets, in part, the standard in Florida for disclosing personal financial data, and equally applicable is 15 U.S.C. §6801, Protection of Non-Public Personal Information. See also 5 Fla.Jur. 2d, Banks and Lending Institutions, §49 and Banc of America Investment Services, Inc. v. Barnett, 997 So.2d 1154 (3d DCA 2008)(order compelling production of bank records based upon account holder's refusal to return five million shares transferred to their account due to clerical error would result in harmful invasion of third party's Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009

Page 5 of 9 Jane Doe v. Epstein privacy rights that could not be remedied on appeal and, thus, bank was entitled to writ of certiorari to quash order; trial court did not weigh privacy interests of third parties against interests of account holders, and demand for confidential documents was overly broad, irrelevant to the issues and was not reasonably calculated to lead to the discovery of admissible evidence). 8. 15 U.S.C. §680 (a), Protection ofNon-Public Personal Information, provides: "[i]t is the policy of Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers non-public personal information." 15 U.S.C. §680 (b)(l) and (3) provide, in relevant part, that financial institutions must: " .. .insure the security and confidentiality of customer records and information" and "protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer." Id. Certainly, this court could foresee inconvenience on the part of any third-party having to reveal their "entire file" and/or "business and/or individual accounts" showing detailed financial data or financial strategy etc .... See e.g., Arias-Zeballos v. Tan, 2007 WL 210112, at *l (S.D.N.Y.2007)(quashing Subpoena to bank seeking copies of defendant's personal checks and documents concerning the purchase of residential real estate, finding that "courts have found that individuals, whose banking records are Subpoenaed, have a privacy interest in their personal financial affairs that gives them standing to move to quash a Subpoena served on a non-party financial institution); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D.Kan.2003)(Personal rights claimed with respect to bank account records give a party sufficient standing to challenge a third party Subpoena served upon financial institutions holding such information). Here, Plaintiff has failed to even identify the third-parties whose records may be produced and, as a result, substantial harm could be done in that those unidentified parties will Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009

Page 6 of 9 Jane Doe v. Epstein not be afforded their right to object to same. However, as set forth below, Epstein himself has a right to object to the Subpoena. 9. For instance, Epstein maintains a complicated business practice, which revolves around confidential relationships and proprietary financial information of third-parties. To the extent the production of information reveals the names of Epstein's clients and/or a client list(s) could be derived therefrom, that too could violate Epstein or JP Morgan Chase's trade-secret and/or commercially sensitive information as same is proprietary business data. Berkeley v. Eisen, 699 So.2d 789 (Fla. 4th DCA l 997)(the significant harm to most, if not all, of certain unsuspecting individuals in allowing such a fishing expedition (i.e., the disclosure of their names) is great and far outweighs the plaintiffs need for same.) As such, Epstein has a right and privilege to object to and move to quash the above Subpoena, especially since it seeks to identify the financial information of several unidentified third parties that may have been his clients. Transcor, Inc. v. Furney Charters, 212 F.R.D. at 590-91; see also Woodward v. Berkery, 714 So.2d I 027 (Fla. 4th DCA l 998)(the "law in Florida recognizes an individual's legitimate expectation of privacy in individual's private bank account [and] financial records"), citing, Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla. 1985); Art. 1, §23, Fla. Const. (("Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein.") and Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So.2d 189 (Fla. 2003)(the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it in a case in which the information is not relevant") 10. Accordingly, and pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii), Epstein respectfully requests the Court quash the Subpoena and/or enter an appropriate Motion for Protective Order. Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009

Page 7 of 9 Jane Doe v. Epstein WHEREFORE, Defendant, JEFFREY EPSTEIN, respectfully requests the Court, pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii), quash the Subpoena directed to Bear Stearns and grant any additional relief the Court deems just and proper including, but not limited to, a protective order. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electr nically 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 aday of September, 2009 By:--=--..::.... ___ _ ROBERT 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 561/842-2820 Phone 561/515-3148 Fax (Counsel for Defendant Jejji-ey Epstein) Certificate of Service Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009

Page 8 of 9 Jane Doe v. Epstein 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 I-I. 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 Denuey 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.MA. Bruce Reinhart, Esq. Bruce E. Reinhart, P.A. Brad Edwards, Esq. Rothstein Rosenfeldt Adler 40 l 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 [email protected] [email protected] Counsel for Plaintiffs in Related Cases Nos. 09-80591 and 09-80656 Case 9:08-cv-80119-KAM Document 307 Entered on FLSD Docket 09/17/2009