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 DOES NOS. 2-8’ MOTION TO COMPEL RESPONSES TO REQUESTS FOR NET WORTH DISCOVERY AND INCORPORATED MEMORANDUM OF LAW Plaintiffs, Jane Does Nos. 2-8 (“Plaintiffs”), by and through undersigned counsel, hereby file this Motion to Compel Responses to Requests for Net Worth Discovery and Incorporated Memorandum of Law, and state as follows: On June 29, 2009, Plaintiffs served their Request for Production of Net Worth Documents upon counsel for Defendant Jeffrey Epstein. There were five (5) basic requests, as follows: BACKGROUND 1. All Federal and State income tax returns, including all W-2 forms, 1099 forms and schedules, for tax years 2003-2008. 2. All documents relating to the assets, liabilities, income, expenses, and net worth of Defendant, including without limitations, the following for each of the past five (5) years: a. Annual financial reports; b. Balance sheets; c. Income statements; d. Cash flow statements; Case 9:08-cv-80119-KAM Document 333 Entered on FLSD Docket 09/30/2009

Page 1 of 9 2 e. Quarterly financial reports; f. Budget reports; and g. Financial analysis. 3. All documentation which refer or relate to financing or loans requested or applied for by the Defendant, including loan applications, appraisals, financial spreadsheets, etc. 4. Any and all appraisals indicating fair market value of real estate or other property of Defendant. 5. Any and all documents referring to or relating to investment or savings accounts, including, without limitations, account statements and summaries. Additionally, Plaintiffs served Epstein with thirteen (13) Net Worth Interrogatories. All of these Interrogatories were limited to Epstein’s financial assets, investments, financial accounts, liabilities, and employment. The Plaintiffs’ requests were limited to a reasonable time period, seeking no information before January 1, 2002. On August 31, 2009, Defendant Epstein served his responses to Plaintiffs’ discovery requests. Defendant Epstein made identical blanket objections to all of the requests and interrogatories, asserting the Fifth Amendment privilege against self-incrimination.1 1 Defendant also contends that forcing him to provide the requested information will compromise his Sixth Amendment right to effective counsel and his Fourteenth Amendment rights. These assertions of privilege are derivative of Defendant’s claim to the Fifth Amendment privilege. Because, as discussed below, Fifth Amendment concerns do not arise from the net worth discovery sought by Plaintiffs, all of Defendant’s privilege claims fail. He also asserts that the requests are premature as the Plaintiffs should have the documents and information, if at all, only at the very end of the litigation, on the eve of trial. A copy of Defendant’s Responses to Plaintiffs’ Request for Net Worth Documents is attached hereto as Exhibit “A”. A copy of Defendant’s Responses to Plaintiffs’ Net Worth Interrogatories is attached here to as Exhibit “B”. Case 9:08-cv-80119-KAM Document 333 Entered on FLSD Docket 09/30/2009

Page 2 of 9 3 There is no phased discovery in these cases, nor is there any reason to delay net worth discovery. This discovery should be treated the same as any other damages discovery. Plaintiffs will be prejudiced if they are not provided this discovery until the eve of trial. The Defendant’s objections and privilege assertions, as discussed below, are meritless. Plaintiffs, accordingly, request an order compelling Epstein to provide them with all requested documents and information. I. THE PLAINTIFF IS PRESENTLY ENTITLED ARGUMENT TO DISCOVERY OF EPSTEIN’S NET WORTH Defendant Epstein objects to the Plaintiffs’ net worth discovery as premature, contending that Plaintiffs have the burden of showing that punitive damages are available in this case. Plaintiffs have no such burden under the Federal Rules of Civil Procedure. Specifically, Epstein asserts the following objection: To the extent this court rules that some or all of the requested information be produced, it should not be produced without limitations (including confidentiality), and it should only be produced at the very end of litigation but before trial in order for Plaintiff to establish her burden making it apparent that punitive damages can be awarded. A Complaint must include “a demand for the relief sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a)(3). A plaintiff in a federal action may plead punitive damages in her initial complaint. Ward v. Estaleiro Itajai S/A, 541 F.Supp.2d 1344 (S.D. Fla. 2008). (“Thus, in line with Erie and Hanna, Rule 8(a)(3) is applicable in diversity actions and litigants are to include claims for relief, including punitive damages, in their initial pleadings. They do not seek leave of court or make a showing before doing so.”) Once a plaintiff’s demand for punitive damages is set forth in her pleading, discovery of the Case 9:08-cv-80119-KAM Document 333 Entered on FLSD Docket 09/30/2009

Page 3 of 9 4 defendant’s net worth is within the scope of permissible and normal discovery. Pantages v. Cardinal Health 200, Inc., 2009 WL 1011048 (M.D. Fla. 2009). A defendant must respond to those discovery requests in accord with Rules 33 and 34 of the Federal Rules of Civil Procedure, including the timing requirements. To be sure, Florida state procedure allows for net worth discovery only after a plaintiff has successfully moved to amend a complaint to add a claim for punitive damages. Fla. Stat. § 768.72. However, the state statute does not apply in this case. Where state law claims are brought in federal court, and a state rule conflicts with a federal rule, the Court must apply the federal rule unless it is beyond the scope of the Rules Enabling Act or is unconstitutional. Id. Ward v. Estaleiro Itajai S/A, 541 F.Supp. 2d at 1347 (citing Hanna v. Plumer, 380 U.S. 460 (1965)). See also Pantages v. Cardinal Health 200, Inc., 2009 WL 101048 (“…under an Erie analysis, there is no doubt that the federal discovery rules trump § 768.72.”). Fla. Stat. § 768.72 is a procedural rule that conflicts with Fed. R. Civ. P. 8(a)(3), and thus does not apply in the federal courts. See Cohen v. Office Depot, Inc., 184 F.3d 1292 (11th Cir. 1999) (vacated in part on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)). See also Pantages v. Cardinal Health 200, Inc., 2009 WL 1011048, Ward v. Estaleiro Itajai S/A Plaintiffs include punitive damages in their prayers for relief in their Complaints. Therefore, under federal law and procedure, they are presently entitled to discovery relating to Epstein’s net worth. Moreover, Plaintiffs will be prejudiced if they are required to wait until the eve of trial for this damages discovery. This discovery has implications in the retention and preparation of a punitive damages expert, and Defendant’s responses to the Request for Production and Interrogatories may give rise to the need for additional discovery, e.g., nonparty , 541 F.Supp. 2d at 1351. Case 9:08-cv-80119-KAM Document 333 Entered on FLSD Docket 09/30/2009

Page 4 of 9 5 subpoenas on accountants, appraisers and financial institutions. Plaintiffs are in need of this discovery now, prior to the discovery cutoff, to adequately prepare their cases. II. THE PLAINTIFFS ARE ENTITLED TO NET WORTH DISCOVERY BECAUSE EPSTEIN HAS NO VALID CONSTITUTIONAL PROTECTIONS OR PRIVILEGES THAT WOULD PREVENT SUCH DISCOVERY Epstein responds to each of Plaintiffs’ document requests and interrogatories with the same blanket objection, as follows: Defendant is asserting specific legal objections including but not limited to relying on certain U.S. constitutional privileges in declining at present to respond to this request for production based on advice from my counsel that I cannot provide answers/responses to questions relating to my financial history and condition without waiving my Fifth Amendment 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. The Fifth Amendment Privilege extends to answers to questions that would furnish a “link in the chain of evidence” needed to prosecute the person asserting the privilege. Hoffman v. United States, 341 U.S. 479, 486 (1951). This protection “must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.” Id. (emphasis added). “The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself – his say-so does not of itself establish the hazard of incrimination.” Id. A “blanket refusal” to provide testimony or information is unacceptable. See Anglada v. Sprague, 822 F.2d 1035, 1037 (11th Cir. 1987). A witness bears the burden of justifying the invocation of the privilege. In re J.M.V., Inc. Epstein falls far short of the “reasonable cause” standard required by , 90 B.R. 737 (Bankr. E.D. Pa. 1988). Hoffman. It is not apparent from the Plaintiffs’ discovery requests how he is being compelled to offer testimonial evidence against himself in a criminal case. For example, it is not evident from the Plaintiffs’ Case 9:08-cv-80119-KAM Document 333 Entered on FLSD Docket 09/30/2009

Page 5 of 9 6 requests how Epstein’s property values tend to incriminate him, or are related to any pending criminal matter or may give rise to a future criminal investigation. None of the financial information requested by Plaintiffs suggests underlying criminal activity. Epstein therefore has failed to demonstrate reasonable cause to believe that providing the requested information responsive to Plaintiffs’ Net Worth Interrogatories will incriminate him. Failing such a showing, Epstein’s blanket Fifth Amendment assertion must be rejected. The documents requested by Plaintiffs likewise do not give rise to reasonable cause to believe that their production will incriminate Defendant Epstein. Even if there were such reasonable cause, the act of producing documents may be considered testimonial, and thus encompassed within the Fifth Amendment privilege, only in two instances: (1) if the existence and location of the documents are unknown; and (2) where production “implicitly authenticates” documents. In re Grand Jury Subpoena, 1 F.3d 87, 93 (2d Cir. 1993). It is the burden of the defendant to show that the act of producing responsive documents would entail testimonial self- incrimination. United States v. Wujkowski, 929 F.2d 981, 984 (4th Cir. 1991). In many cases, the existence and location of papers are a foregone conclusion and the defendant adds little or nothing to the sum total of the prosecutor’s information by conceding that he in fact has the papers. Fisher v. United States In , 425 U.S. 391, 96 S.Ct. 1569 (1976), Fisher, the United States Internal Revenue Service subpoenaed the accounting records in the possession of several taxpayers’ attorneys. 425 U.S. at 391. The taxpayers were under investigation by the IRS for criminal and civil violations of the federal income tax code. Id. The Supreme Court held that the mere production of the documents did not compel the taxpayers to become witnesses against themselves, and ordered compliance with the subpoenas. Id. at 414. While a subpoena demonstrates a measure of compulsion, the production of the documents Case 9:08-cv-80119-KAM Document 333 Entered on FLSD Docket 09/30/2009

Page 6 of 9 7 alone, even if the documents contain potentially incriminating information, is neither “testimonial” nor “incriminating” for purposes of the Fifth Amendment. Id. at 411-412, 414. Tacit admission of their existence and their presence in the defendant’s possession is not testimonial self-incrimination. Id. at 412. Under such circumstances, “no constitutional rights are touched. The question is not of testimony, but of surrender.” Id. (citing In re Harris The scope of the Plaintiffs’ document requests at issue is limited to Defendant’s net worth. They are unrelated to Defendant’s inducement of minors to sexual activity. As a result, compelling Defendant to provide net worth discovery does not concern his Fifth Amendment rights. , 221 U.S. 274, 279 (1911)). Likewise, in the instant case constitutional rights are not even remotely implicated in the Defendant’s production of net worth records. Based on the foregoing, Plaintiffs respectfully request that Defendant’s assertions of privilege and objections be denied and overruled, and that an Order be entered directing Defendant to produce documents responsive to the Plaintiffs’ Requests for Production of Net Worth Documents and answer Plaintiffs’ Net Worth Interrogatories. Plaintiffs further request such other relief as this Court deems just and proper. CONCLUSION Undersigned counsel has conferred with Defendant’s counsel in a good faith effort to resolve the issues raised in this motion, and has been unable to do so. CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1.A.3 Dated: September 30, 2009 Respectfully Submitted, By: Stuart S. Mermelstein (FL Bar No. 947245) /s/ Stuart S. Mermelstein [email protected] Adam D. Horowitz (FL Bar No. 376980) Case 9:08-cv-80119-KAM Document 333 Entered on FLSD Docket 09/30/2009

Page 7 of 9 8 [email protected] MERMELSTEIN & HOROWITZ, P.A. 18205 Biscayne Boulevard, Suite 2218 Miami, FL 33160 Tel: (305) 931-2200 Fax: (305) 931-0877 I hereby certify that on September 30, 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. CERTIFICATE OF SERVICE /s/ Stuart S. Mermelstein Case 9:08-cv-80119-KAM Document 333 Entered on FLSD Docket 09/30/2009

Page 8 of 9 9 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 333 Entered on FLSD Docket 09/30/2009