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’ MEMORANDUM IN RESPONSE TO DEFENDANT’S MOTIONS TO COMPEL 1. Between September 16, 2009 and September 25, 2009, Defendant Jeffrey Epstein (“Epstein”) filed similar Motions to Compel Independent Medical Examination (IME) directed toward Jane Doe Nos. 2 through 8. INDEPENDENT MEDICAL EXAMINATIONS Plaintiffs, Jane Does No. 2-8, by and through undersigned counsel, hereby file this Memorandum in Response to Defendant’s Motions to Compel Independent Medical Examinations, and state as follows: 2. Plaintiffs Jane Doe Nos. 2-8 note at the outset that they do not object to an IME being conducted, provided that reasonable parameters are in place to protect the Case 9:08-cv-80119-KAM Document 345 Entered on FLSD Docket 10/09/2009

Page 1 of 9 2 integrity of the IMEs and preserve applicable objections and privileges.1 3. With one notable exception discussed below which requires court intervention, the parties have stipulated to the terms on which the IME may be conducted, as follows: The Defendant may conduct an Independent Medical Examination (IME) pursuant to Rule 35 of Jane Doe Nos. 2-8. The IME may be videotaped. A live videofeed of the IME shall be available to counsel in an adjacent room. All videotaping expenses shall be shared equally by the Plaintiff and Defendant. Absent further Court Order, each IME shall last no longer than eight (8) hours, including all testing and interviewing. Defendant Jeffrey Epstein will not attend the IMEs or make himself seen by Plaintiffs on the date of their IMEs.2 (See 4. The remaining issue is whether and to what extent Epstein’s expert, Dr. Hall, may inquire about each abuse victim’s sexual history with persons other than Epstein. proposed Order, submitted herewith). 3 5. Unlike other discovery devices in the federal rules, Fed.R.Civ.P. 35 provides that medical examinations are to be conducted by court order for “good cause”. The Plaintiffs have already briefed this issue in the context of Objections to Interrogatories. (DE 93, Plaintiffs’ Memorandum in Opposition to Epstein’s Motion to Compel Answers to First Set of Interrogatories). 1 Plaintiffs’ counsel notes that they have always taken the position that IMEs of Plaintiffs can be conducted subject to reasonable parameters. Defendant’s counsel began filing their IME Motions as to Jane Doe Nos. 2-8 before there was any real opportunity for counsel to discuss and work out those parameters. 2 Epstein also initially set the IMEs to take place at his counsel’s office. The parties have now agreed that the IMEs should be reset for a different mutually agreeable location in Palm Beach County. 3 Contrary to Epstein’s suggestion, this issue was not before the Court in the CMA Order (DE 289). In CMA, the only issue before the Court was the length of the proposed IME. The parties did not brief or contemplate whether Epstein’s expert could take a detailed sexual history from the victim. Id. Case 9:08-cv-80119-KAM Document 345 Entered on FLSD Docket 10/09/2009

Page 2 of 9 3 See Fed.R.Civ.P. 35(a)(2). It is the movant’s burden to show that each condition for which an examination is sought “is genuinely in controversy and that good cause exists for ordering each particular examination.” Schlangenhauf v. Holder, 37 U.S. 104, 118, 85 S. Ct. 234, 242-243 (1964). Once the Court determines that a Rule 35 examination may proceed, it may subject this examination to appropriate protective restrictions, in the Court’s discretion. Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir. 1971); Swift v. Swift 6. The Plaintiffs’ sexual history not involving Epstein is not relevant. , 64 F.R.D. 440, 443 (E.D.N.Y. 1974) See 7. The Motions to Compel fail to set forth adequate reasons why Dr. Hall should be allowed to inquire into a Plaintiff’s sexual conduct with men other than Defendant Epstein. Dr. Hall has already received the video interviews of Plaintiffs by Dr. Gilbert Kliman, and is thus armed with a wealth of information about each Plaintiffs’ psychological condition and history, before the IME even begins. Indeed, the subject Motions refer to the details of these interviews, yet fail to state specifically why further inquiry on an particular topic is necessary. Plaintiffs, nonetheless, do not contest further interviews by Dr. Hall generally, but do object to interrogations of the Plaintiffs about their sexual conduct with men other than Epstein. Such interrogations could only be for the purpose of harassment, intimidation and/or psychological manipulation of the Plaintiffs. Fed.R.Evid. 412. Just as it would be inappropriate for Defendant’s counsel to ask questions regarding unrelated sexual history at a Plaintiff’s deposition or in interrogatories, the same is true at an IME. 8. Accordingly, Plaintiffs request an order providing that Plaintiffs’ counsel Case 9:08-cv-80119-KAM Document 345 Entered on FLSD Docket 10/09/2009

Page 3 of 9 4 may instruct their client not to answer any question at the IME that concerns sexual conduct with persons other than Epstein or otherwise implicates a privilege. A proposed Order, which also incorporates the matters stipulated by counsel, is submitted herewith. 9. It is well-settled that Fed.R.Evid. 412 is not merely a rule of evidence, but must also “inform the discovery process.” Barta v. City and County of Honolulu Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case and cannot be obtained except through discovery. , 169 F.R.D. 132 (D. Haw. 1996). The Rule 412 Committee Notes state, in relevant part, as follows: 10. Nowhere in Defendant’s Motion to Compel IMEs is it explained how or why this presumption should be overcome. It is well established under Fed.R.Evid. 412 that a victim’s past sexual behavior is wholly irrelevant to the credibility of her testimony, and that her prior and subsequent sexual activity with third parties has no bearing on the issue of whether she consented to or complied with the sexual acts charged. See United States v. Stone, 472 F.2d 909, 919 (5th Cir. 1973); Virgin Islands v. Jacobs, 634 F.Supp. 933, 936-37 (D. V.I. 1986) (policy of rule disallowing evidence to show character of assault victim); Dept. of Professional Regulation v. Wise, 575 So.2d 713 (Fla. 1st DCA 1991) (holding that evidence of sexual relations with a person other than an accused is not relevant). One commentator has noted that once the identity of persons and similarity of circumstances are removed, “probative value all but disappears.” See Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L. Rev. 96, 106 (1977). The Case 9:08-cv-80119-KAM Document 345 Entered on FLSD Docket 10/09/2009

Page 4 of 9 5 sexual histories of the Plaintiff are lacking in probative value. 11. The argument that Rule 412 is merely an evidentiary rule that should be disregarded in discovery disputes has been routinely rejected in federal courts. See, e.g., Barta v. City and County of Honolulu, 169 F.R.D. 132 (D. Haw. 1996) (granting protective order pursuant to Rule 412 to prevent a sexual battery and harassment victim from having to disclose off-duty sexual contacts with persons other than defendant in discovery); Herron v. Eastern Industries, Inc., 2007 WL 2781211 (N.D. Fla. Sept. 19, 2007); Gibbons v. Food Lion, Inc., 1999 WL 33226474 (M.D. Fla. Feb. 19, 1999); P.J. Herchenroeder v. John Hopkins Univ. Applied Physical Lab, 171 F.RD. 179 (D. Md. 1997) (looking at both Rule 26 and Rule 412 in resolving discovery motion); Sanchez v. Zabihi, 166 F.R.D. 500 (D. N.M. 1996) (explaining that “[a]lthough the present motion arises in the context of discovery under Rule 26, the Court must remain mindful of Rule 412 and its implications); Stalnaker v. Kmart Corp. 12. As the above-referenced cases make abundantly clear, childhood sexual abuse cases are not garden-variety litigation subject to traditional broad discovery concerning a victim’s sexual history. Rule 412 is designed to protect victims of sexual misconduct from undue embarrassment and intrusion into their private affairs. , 1996 WL 397563 (D. Kan. 1996) (noting that Rule 412 “is applicable and has significance in deciding certain discovery motions”). See Fed.R.Evid. 412. The Committee Notes explain that the Rule is also intended to prevent “sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process.” Rule 412, Advisory Committee Notes to 1994 Amendments. Common sense dictates that requiring a sexual Case 9:08-cv-80119-KAM Document 345 Entered on FLSD Docket 10/09/2009

Page 5 of 9 6 abuse victim to disclose the intimate details of sexual history would be at least as embarrassing and intrusive in an IME conducted by Epstein’s chosen physician as it would be if the victim were interrogated about these facts at trial, if not more. Thus, in order to carry out its purpose, Rule 412 “must inform the discovery process” and the Court “must impose certain restriction on discovery to preclude inquiry into areas which will clearly fail to satisfy the balancing test” set forth in Rule 412. See Barta v. City and County of Honolulu 13. In , 169 F.R.D. at 135. In the present context, this means a protective order restricting Dr. Hall’s questioning of the Plaintiffs concerning their sexual histories with persons other than Epstein. Barta, the Court confronted this issue in the context of a discovery motion in a civil case. 169 F.R.D. at 133. A former employee brought a sexual harassment and battery claim against her former employer and individual employees. Id. The defendants asked questions at deposition which delved into the plaintiff’s sexual conduct outside the workplace. Id. at 134. The Court did not allow these questions and the wait until trial to determine admissibility. Id. at 135. Instead, the Court sustained the plaintiff’s objections. Id. The Court based its decision on Fed.R.Evid. 412. Id. Although noting that Rule 412 controls the admissibility of evidence, the Court explained that it must also apply Rule 412 to “impose certain restrictions on discovery to preclude inquiry into areas which will clearly satisfy the balancing test of 412(b)(2)…” Id. Thus, the Court concluded that the defendants should not be permitted to inquire into the plaintiff’s sexual conduct while she was off-duty, outside the workplace, and which did not involve the same defendants. The identical rationale should apply here. The IME should not involve intimate details of the Plaintiff’s sexual conduct with persons other than Epstein, Case 9:08-cv-80119-KAM Document 345 Entered on FLSD Docket 10/09/2009

Page 6 of 9 7 particularly where such conduct does not involve similar criminal circumstances such as those involving Epstein. WHEREFORE, Plaintiffs, Jane Doe Nos. 2-8, respectfully request an Order which will allow Dr. Hall to conduct an IME of each Jane Doe Nos. 2-8, subject to the following agreed conditions: (i) a live videofeed of the IME will be available to counsel in an adjacent room, with videotape expenses to be shared equally between Plaintiff and Defendant; (ii) the IME shall be no longer than eight (8) hours in length, including all testing and interviews; (iii) Jeffrey Epstein will not attend the IMEs or be in a location where he could be seen by the Plaintiff on the day of her IME; and (iv) the IME will be conducted at a place and time mutually agreeable to both parties, not at the office of Defendant’s counsel. In addition, Plaintiffs’ request that the Court order that Plaintiffs’ counsel be allowed during the course of the IME to instruct the Plaintiff not to answer any question that concerns her sexual conduct with persons other than Epstein or otherwise implicates a privilege. Plaintiffs further request such other and further relief this Court deems just and proper. Dated: October 9, 2009. Respectfully submitted, By: s/ Adam D. Horowitz 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 345 Entered on FLSD Docket 10/09/2009

Page 7 of 9 8 CERTIFICATE OF SERVICE I hereby certify that on October 9, 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/ Adam D. Horowitz Case 9:08-cv-80119-KAM Document 345 Entered on FLSD Docket 10/09/2009

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 345 Entered on FLSD Docket 10/09/2009