Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 1 of 11 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 I Defendant, Jeffrey Epstein's Reply to Plaintiff, Jane Doe 2-8, Response In Opposition To Defendant's Motions For Independent Examination Of Plaintiffs, With Incorporated Memorandnm Of Law Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN") by and through his undersigned attorneys, hereby files his Reply to Plaintiffs' Memorandum In Response To Defendant's Motion For Independent Examination Of Plaintiffs, With Incorporated Memorandum Of Law, and in support, states as follows: I. Plaintiffs' Memorandum in Response is docketed at DE 345. Plaintiffs' counsel is correct with regard to the agreement reached regarding the IMEs as delineated in DE 345 with the exception of the questions that involve Plaintiffs' past sexual histories, which must be timely ruled upon by this court before the Independent Medical Examinations occur in November 2009. 2. On September 9, 2009, this court entered an order on CMAs scope and questioning of the IME. DE 289. In the Order, the court acknowledged the allegations Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 2 of 11 made by CMA and the damages sought. Jane Doe's 2-8 make similar allegations of Sexual Assault and Battery, Intentional Infliction of Emotional Distress and Coercion and Enticement to Sexual Activity in Violation of 18 U.S.C. 2422. See £,g., Amended Complaints at DE 56 and 62. 1 3. Plaintiffs seek millions of dollars for sexual contact, harmful or offensive contact, sexual assault and battery, and unlawful, offensive and harmful touching. See Amended Complaints at DEs 1, 18, 19, 50, 56, 60 and 62. Plaintiffs allege a plan and scheme to willfully and intentionally commit the above acts. Id. Plaintiffs claim that the above acts resulted in severe and permanent traumatic injuries, including, mental, psychological, mental anguish and pain and emotional damages/distress. Id. Plaintiffs do not allege that any of the alleged acts were consensual. 4. Plaintiffs seek to prevent questioning of their past sexual histories in order to prevent the Defendant and a jury from properly analyzing their damages as it pertains to Epstein while, at the same time, blinding the jury from instances in each of the Plaintiffs' lives where psychological, mental, physical and sexual trauma may have been caused by the acts of others and not Epstein. See Affidavits of Dr. Hall attached hereto which clearly delineate prior instances in each of the Plaintiffs lives where psychological, mental, emotional, physical and sexual trauma was visited upon them. See Exhibits A, B, C, D, E, and F. Those acts have and/or may have caused the damages they seek to recover solely from Epstein. Therefore, Plaintiffs' social, medical and psychological histories are discoverable, all of which directly relate to some sexual history component which, at this juncture, is discoverable. The sexual history component is inextricably 1 Jane Does 2-8 are all represented by the same counsel and each of their Amended Complaints is for the most part, identical. See also DEs J,18,19,50 and 60. Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 3 of 11 woven into Plaintiffs" past social, medical and psychological histories and cannot be excluded from the IME. See infra. 5. Plaintiffs seek to recover complex medical expenses. Therefore, as this court has recognized, " ... full knowledge of Plaintiffs past and present medical, psychological, familial, and social histories is essential." DE 289. This Court has already ruled that" ... defense counsel may ask. . . personal and sensitive questions concerning some of the pivotal issues in this case would work an injustice by preventing Defendant from being able to defend himself." DE 289. Obviously, if Plaintiff was a prostitute or was molested or sexually battered and suffered the same exact emotional or physical damages as a result of the acts of others (i.e., a prior injury), the jury is permitted to weigh this evidence. Even so, at this juncture, it is without question that same is discoverable. Admissibility can be handled on another date. See Fajardo v. Pierce County, 2009 WL 1765756 (W.D. Wash. 2009)(allegations of specific disorders amount to more than garden variety disorders and thus Plaintiff waived physician-patient privilege as it involved a complex medical issue); Alexander v. City of Bellingham, 2008 WL 2077970 (W.D. Wash. 2008); Grit v. Target Corp., 2008 WL 1777744 (M.D. Fla. 2008); Trenary v. Bush Entertainment Corp., 2006 WL 3333621 (M.D. Fla. 2006)(responses to interrogatories placed plaintiffs mental condition at issue); Tracey P. v. Sarasota County, 2006 WL 1678908 (M.D. Fla. 2006)(responses to interrogatories delineating depression and bi-polar disorder are more than simple allegations of emotional distress thus placing plaintiffs mental condition at issue). See also United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993)( dealing with "admissibility of other acts of sexual abuse by individuals Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 4 of 11 other than the defendant to explain why a victim of abuse exhibited behavioral manifestations ofa sexually abused child. Fed.R.Evid. 403,412 and 4!2(b)(l). 6. Here, the information sought by way of IME questions may show that Plaintiffs suffered from the injuries she alleges as a result of other life events or sexual activity prior to, during or after the acts alleged in the Amended Complaints. Did other life events and/or other sexual activity with others, which may be similar to alleged Epstein conduct, cause "emotional distress, psychological trauma, loss of dignity, humiliation or embarrassment", and if so or not, why? Accordingly, the probative value of obtaining full answers to the past sexual history questions is relevant, is basic personal injury discovery and goes to the heart of Plaintiffs' damages or lack thereof, including medical, psychiatric, psychological and the coupled sexual history component related to all of the foregoing. Significantly, Plaintiffs' past sexual histories and experiences may have caused the injuries for which they seek to recover from Epstein. Therefore, it is virtually impossible to separate Plaintiffs' past sexual histories from the psychological, emotional, mental, physical and sexual injuries each Plaintiff seeks to recover. Doing so would hold Epstein accountable for several of the Plaintiffs" preexisting conditions. See attached affidavits of Dr. Hall. Based on Plaintiffs' allegations in this civil suit, full knowledge of Plaintiffs past and present medical and psychological histories (which will include sexual histories) is not only permitted under the law, but is necessary to arrive at a full level of damages. To hold otherwise will result in reversible error, and will prevent Epstein from defending himself and this case, thereby violating his due process rights. Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 5 of 11 The Law and Federal Rnle Of Evidence 412 7. It is well settled that relevant information is discoverable, even if not admissible at trial, so long as the discovery is reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b)(l), Fed.R.Civ.P.; Donahay v. Palm Beach Tours & trans., Inc., 242 F.R.D. 685 (S.D. Fla. 2007). Rule 412 does not automatically result in a determination that such sexual history and sexual activity/behavior information is never admissible. In fact, written into the Rule are the procedures to follow in determining when such information is admissible at trial. The Advisory Committee Notes to Rule 412, Fed.R.Evid, makes clear that the procedures to determine admissibility of an alleged victim's/plaintiffs sexual conduct or activity in civil cases does not apply to discovery of such information. Rather, discoverability of such information is governed by Rule 26, Fed.R.Civ.P., pursuant to which the scope of discovery is broad. Dtmahay, supra, at 686, and cases cited therein. "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claims or defense of any party involved in the pending action." Id. 8. Rule 412, entitled "Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition," provides in relevant part - (a) Evidence generally inadmissible.--The following evidence is not admissible in any civil . . . proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and ( c ): (I) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions.- * * * * * Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 6 of 11 (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. ( c) Procedure to determine admissibility.-- (!) A party intending to offer evidence under subdivision (b) must- (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. 9. In confirming that Rule 412 does not control the discoverability of such information, the Advisory Committee Notes (1994 Amendments) state - The procedures set forth in subdivision ( c) do not apply to discovery of a victim's past sexual conduct or predisposition in civil cases, which will be continued to be governed by Fed. R. Civ. P. 26. In order not to undermine the rationale of Rule 412, however, courts should enter appropriate orders pursuant to Fed. R. Civ. P. 26 (c) to protect the victim against unwarranted inquiries and to ensure confidentiality. 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. In an action for sexual harassment, for instance, while some evidence of the alleged victim's sexual behavior and/or predisposition in the workplace may perhaps be relevant, non-work place conduct will usually be irrelevant. Cf Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 962-63 (8th Cir. 1993) (posing for a nude magazine outside work hours is irrelevant to issue of unwelcomeness of sexual advances at work). Confidentiality orders should be presumptively granted as well. (Emphasis added). Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 7 of 11 10. In accordance with Rule 412 and Rule 26, the discovery sought regarding Plaintiffs sexual activity with males, whether she claims other males committed sexual assault or battery on her, whether she claims other males committed lewd and lascivious conduct to her, and whether other males committed lewd or lascivious exhibition to her in, are all relevant to Plaintiffs' damages claims and the type of injuries they claim has suffered. Defendant has no other means of obtaining such information and obtaining such information through Plaintiff will better protect the confidentiality until the Court can make a determination in accordance with the procedures under Rule 412( c) whether such information will be admissible at trial. See Rule 412(c) quoted above. Defendant will agree to an order keeping the confidentiality of the information obtained through discovery. However, the Defendant cannot agree to waive his due process right to defend himself in these civil cases. 11. The information sought is relevant based on the facts and theories of this action. See Second Amended Complaints. As an example, Jane Doe 2 alleges, that she ". . . suffered and will continue to suffer severe and permanent traumatic injuries, including mental, psychological and emotional damages," and "severe mental anguish and pain." In her answers to interrogatories nos. 9 and 10, Jane Doe 2 further states that: Plaintiff has suffered severe psychological and emotional injuries, including without limitation, anxiety, low self-esteem, feelings of guilt, self-blame, distrustfulness, burdened often by sadness and depression, suicidal thoughts, difficulty trusting others (particularly men), irritability, anger, feeling helpless and powerless, escapism through excessive partying, lack of confidence, loss of innocence. (Interrog. No. 9) . . . . she seeks damages arising from her psychological and emotional injuries. These dan1ages include pain and suffering, costs of psychological care and treatment, and loss of earning capacity .... (Interrog. No. 10). Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 8 of 11 12. Jane Doe 2 also alleges that "Sarah Kellen, Epstein's assistant" was a part of "Epstein's plan and scheme (which) reflected a particular pattern and method" in the alleged recruiting of girl's to come to EPSTEIN's Palm Beach mansion and give him "massages" in exchange for money. 2nd Am. Complaint, iJI 1-12. According to the complaint allegations - "Upon information and belief Epstein has a sexual preference and obsession for underage minor girls." ,is. "Sarah Kellen" would "bring the girl up a flight of stairs to a bedroom that contained a massage table .... " The girl would be alone with EPSTEIN. EPSTEIN would "lie naked on the massage table, and direct the girl to remove her clothes." "Epstein would then perform one or more lewd, lascivious and sexual acts, including masturbation and touching the girl's vagina." 2nd Am. Complaint, iJI I, Exhibit B. Plaintiff alleges that "in 2004-2005," she, "then approximately 16 years old, fell into Epstein's trap and became one of his victims." ,is. Plaintiff alleges that Epstein exposed himself to her and "sexually assaulted" her. iJl2 Plaintiff further alleges that "Epstein committed willful acts of child sexual abuse" on her, which resulted in "mental or sexual injury," and "caused or likely to cause Jane Doe's mental or emotional health to be significantly impaired." 2d Am. Complaint, iJ25. 13. As set forth in Defendant's Motions to Compel Interrogatory Responses, Jane Doe 2-8 allege similar injuries, which include, but are not limted to, "psychological and emotional injuries, including without limitation, anxiety, depression, suicidal ideation, guilt, self-blame, feelings of being degraded, feeling unattractive, diminished sense of femininity, fluctuations in weight/appetite, sexual intimacy problems, flashbacks, disturbing memories, stress, irritability, feelings of being isolated and trapped, diminished trust, social problems, problems in personal relationships, indecisiveness, Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 9 of 11 lower energy, lower ambition and initiative, headaches, back pain, feels stress (particularly around men), obsessive thoughts, problems concentrating, alcohol abuse, corruption of morals and values, loss of innocence, and cries a lot." See Motions to Compel DEs 68, 60, 75, 70, 25 and 27 in each case respectively. Those arguments are incorporated herein by reference. To the extent the Court wishes to review Jane Does' Responses to Interrogatories, those responses can be found at the above docket entries. See also Composite Exhibits attached to the Motions to Compel at Des 68, 60, 75, 70, 25, and 27, in each case respectively, and the argument set forth therein. The information sought is clearly relevant to the injuries and damages claimed by Plaintiff. See United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993)(Defendant charged with sexual abuse of six year old boy was entitled to admission of evidence relating to victim's sexual assault by 3 older boys to establish alternative explanation for why victim exhibited behavioral manifestations of sexually abused child.). 14. In further support of Defendant's motion, See Balas v. Ruzzo, 703 So.2d 1076 (Fla. 5th DCA 1997), rev. denied, 719 So.2d 286 (Fla. 1998), as it is on point to the discovery issues in this action, and the relevancy and discoverability of Plaintiffs' histories of sexual activity and any payment therefore. WHEREFORE, Epstein, through his counsel, requests that this court enter an Order: a. allowing Dr. Hall, Defendant expert psychiatrist, to question Plaintiffs on their past sexual histories; b. requiring that Plaintiff answer those questions; and c. for such other and further relief as this court deem just and proper. Certificate of Service Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009

Page 10 of 11 I HEREBY CERTIFY that a true copy of the foregoing was electronically 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 identifi~he following Service List in the maimer specified by CM/ECF on thistl day of __ .___, 2009 By: _ _.,__:1,,e:_.ll,_ ___ _ ROB 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 Jeffrey Epstein) Certificate of Service Jane Doe No. 2 v. Jeffrey Epstein Case No. 08-CV-80119-MARRA/JOHNSON Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Mennelstein & 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. Brad Edwards, Esq. Rothstein Rosenfeldt Adler 401 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. Pro Hae Vice 332 South 1400 E, Room 101 Salt Lake City, UT 84112 Case 9:08-cv-80119-KAM Document 362 Entered on FLSD Docket 10/21/2009