UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE, CASE NO. 08-CV-80893-CIV-MARRA/JOHNSON Plaintiff, Vs. JEFFREY EPSTEIN, et al. Defendant. _________________________________/ Related Cases: 08-80119, 08-80232, 08-80380, 08-80381, 08-80994, 08-80811, 08-80893, 09-80469, 09-80591, 09-80656, 09-80802, 09-81092 __________________________________/ PLAINTIFF, JANE DOE’S MOTION FOR ORDER PERMITTING LEGAL COUNSELTO ATTEND INDEPENDENT MEDICAL EXAMINATION AND INCORPORATED MEMORANDUM OF LAW Plaintiff Jane Doe (Case #80893), hereby files this Motion for an Order permitting her legal counsel to attend her upcoming Independent Medical Examination (a psychiatric examination) per Defendant’s Notice of Independent Medical Examination [DE 302]. Many of the questions that will be asked at the examination will raise questions of privilege. Accordingly, Jane Doe is entitled to the assistance of legal counsel when answering each of the questions. Jane Doe is familiar with previous Orders by this Court regarding IME’s in the case and has no intention to delay or substantially interfere with same. Jane Doe only seeks an order ensuring that her legal counsel can attend the examination to protect her legal and constitutional rights. Case 9:08-cv-80119-KAM Document 346 Entered on FLSD Docket 10/13/2009

Page 1 of 7 CASE NO: 08-CV-80119-MARRA/JOHNSON 2 BACKGROUND 1. On September 15, 2009, Defendant Epstein filed a Motion for an Independent Medical Examination [DE 301] (“IME”) of Jane Doe. 2. Epstein’s proposed IME of Jane Doe will involve extensive questioning about a broad range of Jane Doe’s experiences and past activities. In particular, the examiner proposes to ask Jane Doe about her previous “medical, . . . legal, social, criminal, [and] academic” background.” Affidavit of Ryan Hall, Attachment “D” to Defendant Epstein’s Motion to Compel Independent Medical Examination, [DE 301-4] Case 9:08-CV-80119- KAM. In addition, the examiner plans to ask Jane Doe about her “psychological and psychiatric records” as well as her “clinical, hospital, [and] physician records.” Id. Further, the examiner plans to ask about Jane Doe’s “medical history, past psychiatric history, . . . legal history, . . .. substance use history, [and] sexual history.” Id. 3. Epstein’s proposed IME will also involve follow-up questions to a Life History Questionnaire that has been sent to Jane Doe’s legal counsel. See Life History Questionnaire, Attachment “B” to Plaintiff C.M.A.’s Motion for a Protective Order, [DE 254-2] Case 9:08-CV-80119-KAM. That questionnaire includes questions about “drug abuse” (question 6) and use of “marijuana,” “narcotics,” “LSD or other hallucinogen” (question 15). The questionnaire further includes questions about “problems” with “gambling” and “trouble with police” (question 28) 4. Epstein’s proposed IME will further involve follow-up questions to Patient Questionnaire. See Patient Questionnaire, Attachment B to Plaintiff C.M.A.’s Motion for a Protective Order, [DE 254-2], Case 9:08-CV-80119-KAM. That questionnaire asks Case 9:08-cv-80119-KAM Document 346 Entered on FLSD Docket 10/13/2009

Page 2 of 7 CASE NO: 08-CV-80119-MARRA/JOHNSON 3 such questions as “Have you ever used illegal drugs (i.e., marijuana, cocaine, uppers, downers, crack, etc.)” and “have you ever used illegal intravenous drugs (IV drugs)” as well as specific dates of the use of such substances. Id. at 5. The questionnaire further asks whether Jane has ever “shot, stabbed, or beaten another person,” id. at 8, as well as for a full “legal history,” id. at 9. MEMORANDUM OF LAW 5. As is readily apparent from the questions that will be asked during Jane Doe’s IME, many legal issues will arise. In particular, Jane Doe will have to determine whether to assert various privileges with regard to some of the sensitive information that is requested. For example, with regard to questions regarding alleged previous criminal behavior, Jane Doe may be required to determine whether to assert a Fifth Amendment privilege against self-incrimination (U.S. Const. amend. V). As another example, many of the questions raise issues with regard to whether to waive various privileges for doctor-patient information and records (e.g., Fla. Stat. Ann. § 456.057), and various privileges for psychotherapist-patient information and records (e.g., Fla. Stat. Ann. § 90.503) and attorney-client privilege information (which was asked of her in her deposition and will undoubtedly be asked again in IME, despite the clear rule against such questioning). Jane Doe may also have the right to enforce various limits that exist on discovery in this case as well. 6. The legal issues surrounding whether to waive these privileges or enforce those limits are complex. The mere fact that Jane Doe has chosen to file a civil lawsuit against the man who repeatedly sexually abused her does not require her to forfeit a Case 9:08-cv-80119-KAM Document 346 Entered on FLSD Docket 10/13/2009

Page 3 of 7 CASE NO: 08-CV-80119-MARRA/JOHNSON 4 right to assistance of counsel during this IME. Accordingly, her legal counsel should be permitted to attend the IME with her. 7. In his affidavit regarding the IME, the proposed examiner asserts that “[t]jhe IME requires the presence of only [Jane Doe] and the examiner.” Affidavit of Ryan Hall, supra, at 6. To the extent that the examiner is trying to assert that there is no basis for the presence of legal counsel, the proposed examiner has no basis for reaching this conclusion. The proposed examiner, who has no legal training, does not understand the legal issues that surround many of the questions that he plans to ask during the IME. Indeed, if anything, his assertion that no other person need be involved suggests that legal counsel should be present to ensure that legal boundaries are respected. 8. In his affidavit, the proposed examiner also asserts that the presence of another person in the room “changes the testing environment considerably by introducing extraneous variables that may distract the examinee and alter the results of the IME.” Affidavit of Ryan Hall, supra, at 6. Here again, the basis for this conclusion is unexplained. To the extent that it is asserting that legal advice from Jane Doe’s counsel not to answer a particular question is somehow “distracting,” the affidavit should be ignored. Jane Doe has a legal right to assert various privileges, if she chooses to do so, and these legal rights must take precedence over any alleged “distraction.” 9. Epstein has proposed that Jane Doe’s counsel could observe the IME from another room via video. This proposal is no solution to the problem of Jane Doe needing legal advice. Jane Doe is entitled to have legal counsel advise her before she Case 9:08-cv-80119-KAM Document 346 Entered on FLSD Docket 10/13/2009

Page 4 of 7 CASE NO: 08-CV-80119-MARRA/JOHNSON 5 answers every single question whether answering such a question might waive a legal privilege. The only realistic way to ensure protection of her rights is to have her legal counsel present with her. The only other option – Jane Doe stepping outside the examination room after each and every question to confer – will be an unnecessary waste of time for all concerned. 10. The Federal Rules of Civil Procedure plainly authorize the Court, if allowing an IME, to set the “manner” and “conditions” of the examination. Fed. R. Civ. P. (a)(2)(B). The Court should therefore use its power to permit Jane Doe’s counsel to attend the examination. WHEREFORE, Plaintiff, Jane Doe, respectfully request this Court Grant Plaintiff’s Motion and enter an Order allowing Plaintiff’s legal counsel to attend the Independent Medical Examination. DATED October 13, 2009 Respectfully Submitted, s/ Bradley J. Edwards Bradley J. Edwards ROTHSTEIN ROSENFELDT ADLER Las Olas City Centre 401 East Las Olas Blvd., Suite 1650 Fort Lauderdale, Florida 33301 Telephone (954) 522-3456 Facsimile (954) 527-8663 Florida Bar No.: 542075 E-mail: [email protected] and Case 9:08-cv-80119-KAM Document 346 Entered on FLSD Docket 10/13/2009

Page 5 of 7 CASE NO: 08-CV-80119-MARRA/JOHNSON 6 Paul G. Cassell Pro Hac Vice 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: [email protected] CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 13, 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 on 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 filed Notices of Electronic Filing. s/ Bradley J. Edwards Bradley J. Edwards SERVICE LIST Jane Doe v. Jeffrey Epstein United States District Court, Southern District of Florida Jack Alan Goldberger, Esq. [email protected] Robert D. Critton, Esq. [email protected] Isidro Manual Garcia [email protected] Case 9:08-cv-80119-KAM Document 346 Entered on FLSD Docket 10/13/2009

Page 6 of 7 CASE NO: 08-CV-80119-MARRA/JOHNSON 7 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] Adam D. Horowitz [email protected] Stuart S. Mermelstein [email protected] William J. Berger [email protected] Case 9:08-cv-80119-KAM Document 346 Entered on FLSD Docket 10/13/2009