1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80119-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ Related Cases: 08-80232, 08-80380, 08-80381, 08-80994, 08-80993, 08-80811, 08-80893, 09-80469, 09-80591, 09-80656, 09-80802, 09-81092, ____________________________________/ PLAINTIFFS JANE DOE NOS. 2-8’ APPEAL AND OBJECTIONS TO MAGISTRATE JUDGE’S DISCOVERY ORDER ENTERED SEPTEMBER 10, 2009 Plaintiffs, Jane Doe Nos. 2-8 (“Plaintiffs”), by and through undersigned counsel, hereby file this Appeal and Objections to Magistrate Judge’s Discovery Order Entered September 10, 2009 (DE 293), and Memorandum of Law in Support, pursuant to 28 U.S.C. §636(b)(1) and S.D.Fla.L.Mag.R. 4, on grounds that the Magistrate Judge’s Order is clearly erroneous and contrary to law, and state as follows: (DE 293), AND MEMORANDUM OF LAW IN SUPPORT Plaintiffs served interrogatories and document requests on Defendant Jeffrey Epstein, who responded by asserting a blanket objection to every discovery request on Fifth Amendment grounds. Defendant produced no documents and provided no information in response to Background Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 1 of 11 2 Plaintiffs’ discovery requests. (Copies of Defendant’s Response and Objections to Plaintiff’s Interrogatories and Response to Request for Production are attached hereto as Exhibits “A” and “B” respectively). Plaintiffs filed a Motion to Compel, challenging the foundation and predicate of the Defendant’s assertions of the Fifth Amendment privilege as inadequate. (DE 57). The Magistrate Judge initially granted in part and denied in part the Plaintiffs’ Motion to Compel, by Order entered on August 4, 2009. (DE 242). This Order granted the Motion as to Interrogatories 7, 8 and 11, and Document Request nos. 17 and 23. The Magistrate deferred ruling on Plaintiff’s Motion as to Document Request nos. 10, 11, 18, 19 and 21, pending a supplemental submission by Defendant, in which he was directed to make “a particularized showing, by in camera submission or otherwise, demonstrating how the Fifth Amendment may validly be asserted in response to these requests.”1 1 In Defendant’s subsequent filings, he does not challenge the August 4, 2009 Order as to Interrogatory no. 8 and Document Request nos. 17, 18 and 23. (DE 242, pp. 21-22). In response to the Magistrate’s August 4, 2009 Order, Defendant filed on August 31, 2009, a Motion for Reconsideration and/or Request for Rule 4 Review and Appeal of Portions of the Magistrate’s Order, et al. (DE 282). Separately, the Defendant filed a Supplementary Brief Pursuant to the Magistrate’s Order (DE 242) Requesting a More Particularized Showing et al. (DE 283). The copies of both of these August 31, 2009 filings served on Plaintiffs’ counsel and made available on PACER are replete with redactions. These redactions are in the Memoranda themselves, not in any documents submitted for in camera inspection. Indeed, it does not appear that any documents were submitted for in camera review. To Plaintiffs’ counsel’s knowledge, Defendant’s counsel at no time sought leave of court to redact the filed versions of his Memoranda. Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 2 of 11 3 Before Plaintiffs even had an opportunity to timely respond to the Defendants August 31, 2009 filings,2 2 Pursuant to S.D.Fla.L.R. 7.1(C), Plaintiffs should have had until September 18, 2009 to file a responsive Memorandum. The Magistrate, however, issued her Order of September 10, 2009, reversing the August 4, 2009 Order and denying relief to Plaintiffs well before Plaintiffs’ due date to file a response. the Magistrate entered an Omnibus Order, on September 10, 2009, which granted the Defendant’s Motion for Reconsideration in full and reversed, for the most part, that portion of the Magistrate’s August 4, 2009 Order that was adverse to Defendant. Specifically, the Court vacated and reversed the August 4, 2009 Order to the extent that it granted Plaintiffs’ Motion to Compel Answers to Interrogatories 7 and 11. The Court further denied Plaintiffs’ Motion to Compel responses to document requests nos. 10, 11, 19 and 21 on Fifth Amendment grounds, after previously deferring decision pending a “particularized showing” by Defendant. The Magistrate did so apparently in reliance upon the substantially redacted Supplementary Brief filed by Defendant. Based on the foregoing, Plaintiffs appeal the Magistrate’s September 10, 2009 Order, and ask that (i) the Magistrate’s August 4, 2009 Order be reinstated; (ii) Defendant be ordered to answer interrogatory nos. 7 and 11; (iii) Defendant be ordered to produce documents in response to document request nos. 10, 11, 19 and 21 or alternatively, demonstrate in camera why each document at issue is protected by the act of production doctrine; (iv) unredacted versions be filed of Defendant’s August 31, 2009, Supplemental Brief (DE 283) and Motion for Reconsideration and Memorandum of Law (DE 282); and/or (v) such other and further relief as this Court deems just and proper. Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 3 of 11 4 Argument I. DEFENDANT EPSTEIN HAS NOT MET HIS BURDEN OF DEMONSTRATING THAT THE ACT OF PRODUCTION DOCTRINE APPLIES TO ALL DOCUMENTS AT ISSUE It is well established that the Fifth Amendment privilege may not apply to specific documents “even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege.” United States v. Hubbell, 530 U.S. 27, 35-36 (2000). Accordingly, a party cannot avoid discovery merely because demanded documents contain incriminating evidence, “whether written by others or voluntarily prepared by himself.” Id. Nonetheless, the act of procuring documents may be considered testimonial and protected by the Fifth Amendment privilege in two instances: (1) if the existence and location of the documents are unknown; or (2) where production would “implicitly authenticate” the documents. In re Grand Jury Subpoena, 1 F.3d 87, 93 (2d Cir. 1993); see also Fisher v. United States, 425 U.S. 391, 410 (1976) (issue expressed as whether compliance with a document request or subpoena “tacitly conceded” the item’s authenticity, existence or possession by the defendant). It is the Defendant’s burden to demonstrate that the act of producing any particular responsive documents would entail testimonial self-incrimination. United States v. Wujkowski The party asserting the Fifth Amendment privilege must demonstrate that the act of production implicitly authenticates each document claimed to be protected, “and in so doing, provides a ‘link in the chain of incrimination.’ ” , 929 F.2d 981, 984 (4th Cir. 1991). In re Schick, 215 B.R. 4, 9 (Bankr. S.D.N.Y, 1997) (quoting United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983)). “Conversely, there is no Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 4 of 11 5 privilege if the existence, location or authenticity is a ‘foregone conclusion.’ ” Id. (quoting Fisher, 425 U.S. at 411, 96 S. Ct. at 1581). Accordingly, the act of production doctrine asserted by Defendant Epstein requires a two- part inquiry: “(1) the court must determine whether the production of documents is testimonial, and (2) the party asserting the privilege must show that it is incriminating i.e., that it provides a ‘link in the chain of incrimination.’ ” Id. at 9. This inquiry is highly fact intensive. In re Foster, 188 F.3d 1259, 1270 (10th Cir. 1999). In conducting this inquiry, it is appropriate for the Court to require some level of in camera review, where the party asserting the privilege explains, “as to each document, in general and circumstantial terms why production is incriminating.” Schick, 215 B.R. at 9-10 (emphasis supplied). See also Foster In this case, it appears that the Magistrate considered the elements of the federal statute, along with the document requests at issue, and concluded that the act of production doctrine applied. It does not appear that Defendant submitted to the Magistrate any fact specific explanations, particular to each document sought to be protected, demonstrating both implicit authentication and that the contents of the document would provide a link in the chain of incrimination. Plaintiffs, however, do not know what was presented and argued by Defendant in much of his Supplemental Brief because of the redactions of large portions of this Brief. , 188 F.3d at 1270-1277 (remanding to the bankruptcy court because it did not conduct an in camera review; appellate court could not determine whether party was entitled to the act of production privilege without an adequate record and fact specific analysis). 3 3 The redactions include footnote 1 on page 6, much of page 7, and the entirety of pages 8 through 13. To the extent that the redactions concern the Non-Prosecution Agreement, that Agreement has now been unsealed pursuant to state court order, and would not, therefore, provide a reasonable basis to avoid a public filing in these cases. Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 5 of 11 6 The Local Rules of this Court expressly set forth a procedure for filing documents that are not to be included in the public record. See S.D.Fla.L.R. 5.4(A). Under Local Rule 5.4, a party is required to file a motion to seal when he seeks to prevent public disclosure of a document. That motion is required to state a reasonable basis for departing from the general policy of public filing. Rule 5.4(B)(2). To Plaintiffs’ knowledge, no motion to seal or comparable motion was filed by Defendant with regard to his August 31, 2009 filings.4 For the foregoing reasons, the Magistrate’s Order denying Plaintiffs’ Motion to Compel production of documents in response to Request nos. 10, 11, 19 and 21 should be reversed, and In her Order dated August 4, 2009, the Magistrate Judge found that Defendant had not sufficiently demonstrated the application of the act of production doctrine as to document request nos. 10, 11, 18 19 and 21, but granted Defendant leave to supplement his response, “by making a particularized showing, by in camera submission or otherwise. . . .” (DE 242, p. 20). As discussed above, in camera review may be appropriate in evaluating the act of production doctrine with respect to each document sought to be protected from disclosure. It does not appear, however, that Defendant filed documents, or a log or summary describing particular documents, for in camera review. Instead, Defendant redacted his Supplemental Brief for in camera review. (DE 283). A party should not be allowed to redact unilaterally large portions of his brief. The Magistrate Judge, in accepting the Defendant’s redacted submission, and relying upon it to rule in Defendant’s favor, denied the Plaintiffs due process. This lack of due process was exacerbated by the Magistrate’s issuance of her Order before the Plaintiff had an opportunity to respond within the time period for briefing set forth in the Local Rules. 4 No such motion was served on Plaintiffs’ counsel. Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 6 of 11 7 Defendant should be required to make an appropriate factual showing under the act of production doctrine. II. THE MAGISTRATE FAILS TO EXPLAIN THE REVERSAL OF HER DECISION TO COMPEL ANSWERS TO INTERROGATORY NOS. 7 AND 11 In the Magistrate’s August 4, 2009 decision, she found that interrogatory nos. 7 and 11 did not implicate the Fifth Amendment, and that Defendant’s objections to these Interrogatories amount to nothing more than blanket assertions of the privilege: These interrogatories ask for general, identification-type information, which neither on their face nor by implication implicate Epstein’s rights under the Fifth Amendment. In this regard, the Court is left with only Epstein’s blanket assertion of the privilege in which the claims that require him to identify his health care providers, his various telephone numbers and his dates of Florida travel, “would be a link in the chain of evidence needed to convict him of a crime.” See Epstein’s Resp. Brief, pp. 18-20. Unfortunately for Epstein, this objection is so general and sweeping in nature it amounts to a blanket assertion of the privilege. (Order of August 4, 2009, p. 11). Accordingly, the Magistrate granted Plaintiffs’ Motion to Compel answers to these Interrogatories. In subsequently reversing this decision, the Magistrate set forth contrary, vague conclusions: In the instant Motion for Reconsideration, Epstein has set forth additional facts and detailed reasoning successfully demonstrating how forcing him to answer these requests would realistically and necessarily furnish a link in the chain of evidence needed to prove a crime against him and would require him to provide self- incriminating evidence relative to this case and to the other related cases that could result in a specific hazard of self-incrimination. In light of the additional information provided, the Court is now persuaded that Epstein’s whereabouts and telephone numbers are crucial issues in this case and other related cases and that if he is forced to reveal this information, these testimonial disclosures could subsequently be used to incriminate him and/or prosecute him for a criminal offense. Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 7 of 11 8 (Order of September 10, 2009, p. 5). The Defendant’s Motion for Reconsideration and incorporated Memorandum of Law, upon which the Magistrate’s September 10, 2009 Order is based, contains extensive redactions.5 This redacted version was filed without authorization or leave of court. As a result of these redactions, Plaintiffs are unaware of the “additional facts” upon which the Magistrate’s reversal is based, or if there were indeed additional facts submitted in support of the Defendant’s position. Plaintiffs thus are unable to respond. As a result, Plaintiffs have been denied due process. While an in camera review of documents may be appropriate, it should be done on notice, with court authorization, in a separate submission. See S.D.Fla.L.R. 5.4. Unauthorized redactions of substantial portions of a motion and memorandum of law are improper and should not be condoned. Plaintiffs should, in accordance with due process, have a fair opportunity to respond under the circumstances. Plaintiffs were not provided such an opportunity with regard to the Motion to Compel responses to Interrogatory nos. 7 and 11.6 Based on the foregoing, Plaintiffs respectfully request that the Magistrate Judge’s September 10, 2009 Omnibus Order (DE 293) be reversed, on the grounds that it is clearly erroneous and contrary to law, and that (i) the Magistrate’s August 4, 2009 Order be reinstated; (ii) Defendant be ordered to answer interrogatory nos. 7 and 11; (iii) Defendant be ordered to Conclusion 5 The version of Defendant’s Motion for Reconsideration filed on PACER and served on Plaintiffs redacts most of page 4; all of pages 5 though 7; most of page 8; portions of pages 10 and 11; all of page 12; most of page 13; and portions of pages 14 through 16. 6 As was the case with Defendant’s Supplemental Brief, the Court’s Order of September 10, 2009 was issued before Plaintiffs had an opportunity to respond in accordance with S.D.Fla.L.R. 7.1 to Defendant’s Motion for Reconsideration with Incorporated Objections and Memorandum of Law. (See footnote 2 supra, and surrounding text.) Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 8 of 11 9 produce documents in response to document request nos. 10, 11, 19 and 21 or alternatively, demonstrate in camera why each document at issue is protected by the act of production doctrine; (iv) unredacted versions be filed of Defendant’s August 31, 2009, Supplemental Brief (DE 283) and Motion for Reconsideration and Memorandum of Law (DE 282); and/or (v) such other and further relief as this Court deems just and proper. Dated: September 24, 2009. Respectfully submitted, By: s/ Stuart S. Mermelstein Stuart S. Mermelstein (FL Bar No. 947245) [email protected] Adam D. Horowitz (FL Bar No. 376980) [email protected] MERMELSTEIN & HOROWITZ, P.A. Attorneys for Plaintiffs 18205 Biscayne Blvd., Suite 2218 Miami, Florida 33160 Tel: (305) 931-2200 Fax: (305) 931-0877 Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 9 of 11 10 CERTIFICATE OF SERVICE I hereby certify that on September 24, 2009, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day to all parties on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Stuart S. Mermelstein Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009

Page 10 of 11 11 SERVICE LIST DOE vs. JEFFREY EPSTEIN United States District Court, Southern District of Florida Jack Alan Goldberger, Esq. [email protected] Robert D. Critton, Esq. [email protected] Bradley James Edwards [email protected] Isidro Manuel Garcia [email protected] Jack Patrick Hill [email protected] Katherine Warthen Ezell [email protected] Michael James Pike [email protected] Paul G. Cassell [email protected] Richard Horace Willits [email protected] Robert C. Josefsberg [email protected] Case 9:08-cv-80119-KAM Document 327 Entered on FLSD Docket 09/24/2009