Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 1 of 15 JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CIV-80119-MARRA/JOHNSON --------------~/ 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 --------------~/ Defendant's Response In Opposition To Plaintiffs' Appeal And Objections To Magistrate Judge's Order Entered September 10, 2009 (DE 293), With Memorandum Of Law Defendant, Jeffrey Epstein (hereinafter "Epstein"), by and through his undersigned attorneys, hereby files his Response in Opposition to Plaintiffs' Appeal and Objections to the Magistrate Judge's Order Entered September 10, 2009 (DE 293), with Incorporated Memorandum of Law. In support, Epstein states: I. Procedural Background 1. The Magistrate Judge entered an order (DE 242) sustaining several of Epstein's Fifth Amendment objections and stating, among other things, that Epstein must supplement his Response Memorandum to Plaintiffs Motion to Compel. (DE 242) 2. On August 31, 2009, Epstein filed his Supplementary Brief providing a more particularized showing as to why his objections under the Fifth Amendment should be sustained. (DE 282)(the "Supplementary Brief'). Of even date, Epstein filed his Motion for Reconsideration and Request for Rule 4 Appeal of Portions of the 1 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 2 of 15 Magistrate's Order et al. (DE 282)("Epstein's Rule 4 Appeal") As discussed in more detail below, the Magistrate Judge was provided with unredacted versions of the Supplementary Brief and Epstein's Rule 4 Appeal, in camera. 1 3. After Epstein provided a more particularized showing in the Supplementary Brief and his Rule 4 Appeal as to why Epstein's objections should be sustained or reconsidered under the Fifth Amendment, the Magistrate Judge entered the Omnibus Order at DE 293 sustaining Epstein's Fifth Amendment privilege. 4. As set forth in DE 293 and the case law cited therein, the Magistrate Judge followed the appropriate procedures and law in entering DE 293 and therefore same should be sustained and left undisturbed. II. The Magistrate Judge Followed The Appropriate Procedures Under the Fifth Amendment In Entering DE 293 5. As Plaintiffs concede in their Rule 4 Appeal (p.2)(DE 327), the Magistrate Judge's initial order at DE 242 directed Epstein 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." DE 242. 6. Inconsistent with the law (discussed infra) and the Magistrate's Order, Plaintiffs claim that "[t]he Magistrate [ made her ruling] apparently in reliance upon the substantially redacted Supplementary Brief filed by Defendant" and that Defendant was required to produce documents in making his more particularized showing. Plaintiffs' Rule 4 Appeal at p.3. 7. From the outset, Defendant provided the Magistrate Judge with unredacted copies of the Supplementary Brief (DE 282) and the Rule 4 Appeal (DE 282), in camera. 1 If Epstein had not provided the information in camera but instead provided same to opposing counsel, Epstein would have waived his Fifth Amendment privilege. 2 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 3 of 15 Epstein electronically filed those same briefs in redacted form in order to preserve his rights under the Fifth Amendment. Therefore, the Magistrate Judge, despite Plaintiffs' specious contentions, did not make her rulings based upon substantially redacted briefs. 8. Blacks law Dictionary (8th Edition 2004), defines an in camera inspection as "[a] trial judge's private consideration of the evidence." Obviously, if an in camera inspection is the trial judge's private consideration of the facts, Plaintiff cannot argue that they are entitled to receive umedacted versions of the briefs, which contain evidence that would inevitably be used to incriminate Epstein and result in Epstein's waiver of his Fifth Amendment privilege. 9. In Hoffman v. U.S., 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 118 (1951), the Supreme Court enunciated the standard for measuring when a witness may properly claim his right against self-incrimination, and thus refuse to respond to questions: To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. "2 Id. at 486-87, 71 S.Ct. at 918; see also (DE 242, p.6) A proper application of this standard requires that the Fifth Amendment claim be raised in response to specific questions. This permits the reviewing Court to determine whether a responsive answer might lead to injurious disclosures. United States v. 2 Once a particularized showing has been made, "[i]t is for the Court to decide whether a witness' silence is justified and to require him to answer if it clearly appears to the Court that the witness asserting the privilege is mistaken as to its validity." In re Morograth, 718 F.2d 161, 166-67 (6th Cir. 1983). Here, the Com1 has spoken, and has considered the nature of the allegations made against Epstein along with the in camera submissions. 3 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 4 of 15 Malnik, 489 F.2d 682, 685 (5th Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974). 10. It is clear that Epstein followed not only the Court's order (DE 242) but also the well-settled law with regard to making a more particularized showing that there is reasonable cause for Epstein to believe that a direct answer or response to the requests would support a conviction or provide a link in the chain of evidence to support a conviction against Epstein. See M•, Sheldon v. Sheldon, 193 B.R. 152, 162 (S.D. N.Y. 1996)(the Court, in camera, determined that answers to certain deposition questions would support a conviction or provide a link in the chain of evidence to support a conviction) As this Court recognized, Epstein's refusal to respond or produce information to each request is, as required, based on a specific apprehension of a compelled production and disclosure providing a link in the chain of evidence adverse to him. Blau v. United States, 340 U.S. 159 (1950). Production would therefore constitute a testimonial admission of the genuineness, the existence, and Epstein's control of such records, and thus presents a real and substantial danger of self-incrimination in this case, in other related cases and as well in areas that could result in criminal prosecution. See generally Hoffman v United States, 341 U.S. 479, 486 (1951) and United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043 (2000). 11. Therefore, Epstein is not required to produce any documents or responses to interrogatories. Instead, an evaluation can and was made by this Court of Epstein's unredacted in camera submissions, and it was clearly evident from the implications of the interrogatories and the requests that a responsive answer to the interrogatories and the requests for production could result in injurious disclosures and compelled testimony, 4 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 5 of 15 which would, among other things, require Epstein to be a witness against himself. Under the law espoused in Hoffman, an explanation of why answers to the subject interrogatories and the requests for production would violate Epstein's Fifth Amendment privilege is sufficient. In entering DE 292, the Magistrate Judge considered all the facts necessary including, but not limited to, and the setting in which the interrogatories and the request for production were made and thus correctly entered DE 293. 12. As this Court ruled in DE 242, " ... it is evident from the requests themselves, the allegations in the various complaints, and the facts and circumstances surrounding these cases, that to demand a more particularized showing of danger, would require Epstein to 'surrender the very protection which the privilege is designed to guarantee."' "As such, no more particularized showing than that offered by Epstein in his Response Brief is necessary." (DE 242, p.18); citing Hoffman, 341 U.S. at 479. Here, the Magistrate Judge correctly followed Hoffman. That same reasoning should apply here. 13. Significantly, Plaintiffs have not challenged several of the interrogatories and the requests for production in which Epstein's Fifth Amendment privilege was sustained in DE 242 (above) based upon their misguided theory that an "explanation" is not sufficient in detailing why Epstein's privilege should be sustained and that answers to interrogatories and responsive documents must be produced in order to make a more particularized showing to sustain the privilege. If this Court accepts Plaintiffs' slanted argument, then a severe conflict would exist between what is required to sustain the protections of the Fifth Amendment as to interrogatories and requests for production. That is, if Plaintiffs theory is accepted, then this Court must make a ruling that is in 5 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 6 of 15 direct conflict with Hoffman and require Epstein to respond to interrogatories and produce documents to make a more particularized showing rather than provide the appropriate explanation as to how answers or responses would be injurious under Hoffman. Plaintiffs would, albeit incorrectly, have this Court believe that it was not permitted to make a determination of Epstein's Fifth Amendment privilege from the requests themselves, the allegations in the various complaints, and the facts and circumstances surrounding these cases as provided under Hoffman. Plaintiffs' argument simply does not make sense and is unsupported by the law. 14. Epstein, in his Response in Opposition which led to the entering of DE 242, and in his Rule 4 Appeal and his Supplementary Brief, has demonstrated and provided fact specific explanations as why answers to the subject interrogatories and the request for production would violate Epstein's Fifth Amendment privilege. As Hoffman observed: The claim of privilege must be sustained unless it is '"perfectly clear, from a careful consideration of all the circumstances in the case, ... that the answer( s) cannot possibly have such tendency' to incriminate." Id. at 488. (quoting Temple v. Commonwealth, 75 Va. 892, 898 (188l)(emphasis in original).)) Here, the Court cannot conclude that answers and responses cannot possibly have a tendency to incriminate Epstein. III. The Underlying Federal Statutes And the Specified Discovery Requests 15. As to Interrogatory Numbers 7 and 11, Epstein made a sufficient showing as to why answers relate to potential federal claims violations as well as the statutes p!ed by Plaintiffs in an effort to recover millions from Epstein. For example, the underlying criminal offense, as it relates to Interrogatory Number 7, is " ... knowingly persuading, 6 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 7 of 15 inducing, enticing or coercing any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so .... " Id. Interrogatory Number 7 asks for time periods Epstein was present in Florida and the dates he arrived ru1d departed (i.e., traveled into and out of Florida). Plaintiffs allege that Epstein engaged a "scheme and plan" against minor girls at his places of residence (i.e., Florida, New York and St. Thomas). If Plaintiffs allegations are accepted as true, forcing Epstein himself to provide this information may provide a clue or a link in the chain of evidence allowing Plaintiff or others to satisfy one or more of the elements of 18 U.S.C. 2422(a) resulting in self-incrimination, and may subject Epstein to future criminal prosecution under the NPA or in another district for an alleged violation of a criminal offense Likewise, other Jane Does such as Jane Doe I 02 have contended that they are entitled to 18 U.S.C. 2255 drunages based on Epstein's violation of 18 U.S.C. 2423(b) a separate federal criminal statute that prohibits "a person who travels in interstate commerce or travels into the United States ... for the purpose of engaging in illicit sexual activity". By seeking testimonial disclosures regarding dates Epstein traveled to and from the State of Florida, a response to contested interrogatory 7 may furnish a link in the chain of evidence that could potentially expose Epstein to the hazards of self-incrimination as to 18 U.S.C. 2423(b) violations. As such, the court made the correct ruling ru1d no further particularized showing is required as that would cause Epstein to surrender his Fifth Amendment rights. I 6. Next, the underlying criminal offense, as it relates to Interrogatory Number 11, is " ... using the mail or any facility or means of interstate or foreign 7 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 8 of 15 commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so .... " Id. Interrogatory Number 11 asks for Epstein to identify all telephone numbers used by Epstein, including cellular phones and landlines in any of his residences, by stating the complete telephone number and the name of the service provider. Plaintiff alleges that Epstein engaged a "scheme and plan" against minor girls at his places of residence, (i.e., Florida, New York and St. Thomas). Assuming Plaintiffs allegations are true, forcing Epstein himself to provide this information may provide a clue or a link in the chain of evidence allowing Plaintiff or others to satisfy one or more of the elements of 18 U.S.C. 2422(b) (e.g., telephones - the use of any facility or means of interstate or foreign commerce) resulting in self- incrimination, and may subject Epstein to future criminal prosecution under the NPA or in another district for an alleged violation of a criminal offense. Significantly, this Court sustained Epstein's objections to Interrogatory Number 12, which requested information similar to Interrogatory Number 11. As such, the court made the correct ruling and no further particularized showing is required as that would cause Epstein to surrender his Fifth Amendment rights. 17. Likewise, Request for Production numbers 10, 11, 19 and 21 all relate to potential federal claims violations as well as the statutes pied by Plaintiffs in an effort to recover millions from Epstein. For instance, Plaintiffs alleges violations of 18 U.S.C. 2422, entitled "Coercion and enticement", contained in Chapter 117 of Title 18 - "Transportation for Illegal Sexual Activity and Related Crimes," and as to other Jane 8 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 9 of 15 Does, violations of 18 U.S.C. 2423(b) which criminalizes interstate or foreign travel for the purpose of having illicit sexual activity. Both 18 U.S.C. 2422(b) and 2423(b) are alleged by Jane Doe 2 and other Jane Does as predicate criminal offenses for federal damages lawsuits pursuant to 18 U.S.C. §2255 which creates a civil remedy for personal injuries when a plaintiff can first show a violation of specified federal statutory criminal statues. Most importantly for purposes of the Court's making a determination regarding whether Epstein had shown a specific risk of self-incrimination, or that production of a document would constitute a link in the chain of evidence, (see DE242, at pgs 8-9, 18), the lynchpin for the exercise of federal criminal jurisdiction under 18 U.S.C. 2422(b) is "the use of "any facility or means of interstate or foreign commerce" and the analogous essential element of 18 U.S.C. 2423(b) is "travel { s} in interstate commerce or travels into the United States or {as} to a United States citizen ... travels in foreign commerce". Thus, facially, an essential proof of any allegation of 18 U.S.C. 2422(b) - the statutory precondition alleged by Jane Doe 2 for a 2255 civil damage recovery - includes telephone, cellular phone, e-mail records or other "communications" as a facility of interstate commerce during which use there was persuasion, inducement, enticing, or coercing of an underage person to engage in prostitution or sexual activity. Contested requests for production numbers I 0, 11, 19 and 21 ask that Epstein produce information (e.g .. documents reflecting Epstein's air travel, aircraft used and flight manifests, all communications with female models, MC2 models or Jean Luc Brunel relating to or referring to females coming into the United States from other countries and his personal calendars and schedules) that could reveal the availability to him or use of such interstate facilities and thus would constitute a link in the chain of evidence that could potentially 9 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 10 of 15 expose him to the hazards of self-incrimination as to 18 U.S.C. 2422(b) federal criminal violations. Again, other Jane Does such as Jane Doe 102 have contended that they are entitled to 18 U.S.C. 2255 damages based on Epstein's violation of 18 U.S.C. 2423(b) a separate federal criminal statute that prohibits "a person who travels in interstate commerce or travels into the United States ... for the purpose of engaging in illicit sexual activity". By seeking testimonial disclosures regarding Epstein's Epstein's air travel, aircraft used and flight manifests, all communications with female models, MC2 models or Jean Luc Brunel relating to or referring to females coming into the United States from other countries and his personal calendars and schedule, assuming Plaintiffs' allegations to be true, responses to contested requests 10, 11, 19 and 21 may furnish a link in the chain of evidence that could potentially expose Epstein to the hazards of self- incrimination as to 18 U.S.C. 2423(b) violations. As such, the court made the correct ruling and no further particularized showing is required as that would cause Epstein to surrender his Fifth Amendment rights. 18. As such, the court made the correct ruling and no further particularized showing is required as that would cause Epstein to surrender his Fifth Amendment rights. (i) Application Of The 5th Amendment 19. In the instant case, it is evident from the requests themselves, the allegations in the various Complaints, and the facts and circumstances surrounding these cases, that to demand from Epstein a more particularized showing, requires Epstein to walk a thin line with regard to "surrender[ing] the very protection which the privilege is designed to guarantee." Hoffman, 341 U.S. at 479. The United States Supreme Court has made clear that the scope of the Fifth Amendment Privilege also encompasses the 10 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 11 of 15 circumstance where "the act of producing documents in response to a subpoena ( or production request) has a compelled testimonial aspect." United States v. Hubbell, 530 U.S. at 36; see also Fisher v. United States, 425 U.S. 391 (1976); McCormick on Evidence, Title 6, Chap. 13. The Privilege Against Self-Incrimination, §138 (6th Ed.). The "implicit authentication" rationale appears to be the prevailing justification for the Fifth Amendment's application to documentary subpoenas, which is no different from producing documents responsive to a request for production. See U.S. v Hubbell, 530 U.S. 27, 36 (2000); Schmerber v. California, 384 U.S., 757, 763-764, (1966) ("the privilege reaches ... the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers); Couch v. United States, 409 U.S. 322, 344-46 (1973) (the person complying with the subpoena "implicitly testifies that the evidence he brings forth is in fact the evidence demanded"); People v. Defore, 242 N.Y. 13, 27 (1926) ("A defendant is 'protected from producing his documents in response to a Subpoena duces tecum, for his production of them in Court would be his voucher of their genuineness.' There would then be 'testimonial compulsion' "). 20. Again, if plaintiff's theory is accepted, Epstein would be compelled to produce documents and therefore provide assertions of fact, thereby admitting that such documents existed and further admitting that the documents were in his possession or control, and were authentic. In other words, the very act of production of the category of documents requested would implicitly communicate "statements of fact." Hubbell, supra; Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814 (1951). As such, the act of production might not only provide evidence to support a conviction, but also a link in the 11 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 12 of 15 chain of evidence for prosecution. Importantly, such compulsion to produce is the same as being compelled to testify. Thus, in those instances where the existence and/or location of the requested documents are unknown, or where the production would "implicitly authenticate" the requested documents, the act of producing responsive documents is considered "testimonial" and is protected by the Fifth Amendment. In re Grand Jury Subpoena, 1 F.3d 87, 93 (2nd Cir. 1993); see also Fisher v. U.S., 425 U.S. 391, 410 (1976)(issue expressed as whether compliance with a document request or subpoena "tactically conceded" the items authenticity, existence or possession by defendant). Even more egregious is that fact that producing or responding to the Specified Requests could result in self-incrimination and potential prosecution and waiver of the 5th Amendment. "The claimant must [also] be 'confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination." United States v. Apfelbaum, 445 U.S. 115, 128 (1980). Accordingly, responses to the requests propounded upon Epstein would provide information which is protected by the privilege i.e., "the responses [c]ould merely provide a 'lead or clue' to evidence having a tendency to incriminate [Epstein]" United States v., Neff, 615 F.2d 1235, 1239 (9 th Cir.), cert. denied, 447 U.S. 825 (1980). IV. This Is Not An Instance Where Sealing Occurred Or Should Have Occurred - This is a Private In Camera Viewing By Definition 21. As to Plaintiffs' argument that Defendant did not follow the local rules with regard to sealing Epstein's Rule 4 Appeal and the Supplementary Brief, Defendant's response is simple - this is not an instance where documents were submitted under seal but rather for private in camera review, which is within the Court's discretion. Interestingly, several documents have been filed by Defendant in this federal Court 12 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 13 of 15 redacting the faces of each of the Plaintiffs and/or their identifying information without moving to seal same. Do the plaintiffs now concede that since the local rules were not followed in that "redacting" instance that all of their Plaintiffs faces and names can be made public - Epstein thinks not. Plaintiffs forget that "[t]he immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime." United States v. White, 1944, 322 U.S. 694,698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542. Wherefore, Epstein respectfully requests that this Court issue and order: a. denying Plaintiffs' Rule 4 Appeal and Sustaining DE 293; and b. for such other and further relief is Court deems just and proper. HAEL J. PIKE, ESQ. Florida Bar #617296 Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also ce ify that the foregoing document is being served this day on all counsel o~ identifi d on t following Service List in the manner specified by CM/ECF on t,~'day of.m-i;,..,!1.,t,t,LJU.C, 2009. Respect ull x, /4ib11J-ifte, 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 13 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009

Page 14 of 15 561/842-2820 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. Mermelstein & 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. Richard H. Willits, P.A. 2290 10th Avenue North Suite 404 Lake Worth, FL 33461 561-582-7600 Fax: 561-588-8819 Counsel for Plaint/ff in Related Case No. 08-80811 [email protected] Jack Scarola, Esq. Jack P. Hill, Esq. Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 561-686-6300 Fax: 561-383-9424 [email protected] 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 84 I 12 801-585-5202 801-585-6833 Fax [email protected] Co-counsel for Plaintiff Jane Doe Isidro M. Garcia, Esq. Garcia Law Firm, P.A. 224 Datura Street, Suite 900 West Palm Beach, FL 33401 561-832-7732 561-832-7137 F [email protected] Counsel for Plaint/ff in Related Case No. 08-80469 Robert C. Josefsberg, Esq. Katherine W. Ezell, Esq. Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130 14 Case 9:08-cv-80119-KAM Document 391 Entered on FLSD Docket 11/03/2009