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, ____________________________________/ PLAINTIFF JANE DOE NO. 4’S MOTION FOR PROTECTIVE ORDER AGAINST SECOND DAY OF DEPOSITION OF PLAINTIFF EXTENDING PAST SEVEN HOURS IN THE AGGREGATE, Plaintiff, Jane Doe No. 4, by and through undersigned counsel, hereby files this Motion for Protective Order Against Second Day of Deposition of Plaintiff Extending Past Seven Hours in the Aggregate, and Incorporated Memorandum of Law, as follows: AND INCORPORATED MEMORANDUM OF LAW 1. Plaintiff Jane Doe filed a similar Motion for Protective Order on October 29, 2009 seeking relief from Defendant taking her deposition for a second day. (DE 378). Plaintiff Jane Doe No. 4 seeks essentially the same relief limiting her deposition to seven hours, and, accordingly, Jane Doe No. 4 joins in Jane Doe’s Motion for Protective Order. As discussed below, a deposition of Jane Doe No. 4 longer than seven hours in the aggregate would be contrary to Fed.R.Civ.P. 30(d)(1), S.D.Fla.L.R. 26.1(K), and this Court’s Consolidation Order. (DE 98). Introduction Case 9:08-cv-80119-KAM Document 392 Entered on FLSD Docket 11/03/2009

Page 1 of 7 2 2. Pursuant to Court Order, Plaintiff Jane Doe No. 4’s deposition was taken on October 27, 2009. The deposition lasted from approximately 11:00 a.m. until 6:04 p.m. Defendant’s counsel stopped his questioning at that time, stating that he had another appointment. Background 3. Defendant has subsequently demanded that Jane Doe No. 4 appear for a second day of deposition. The parties have tentatively agreed that this second day of deposition will take place on November 17, 2009. 4. Plaintiffs’ counsel has calculated the aggregate time Jane Doe No. 4 has spent in deposition thus far, deducting time spent in breaks, and has determined that Plaintiff Jane Doe No. 4 has spent five hours and thirty five minutes in deposition. This calculation has been provided to Defendant’s counsel, and has not been disputed. 5. For the reasons set forth below, Jane Doe No. 4 should not be required to complete her deposition for a period longer than one hour and twenty five minutes. This will provide Defendant with an aggregate total of seven hours deposition time of Jane Doe No. 4. 6. Rule 30(d)(1), Fed.R.Civ.P., provides a limit on the time that may be taken for a deposition: Discussion Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of seven hours. The Court must allow additional time consistent with Rule 26(d)(2) if needed to fairly examine the deponent . . . Consistent with Fed.R.Civ.P. 30(d)(1), S.D.Fla.L.R. 26.1(K) provides that “[u]nless otherwise authorized by the Court or stipulated by the parties, a deposition is limited, under Fed.R.Civ.P. 30(d) to one day of seven hours.” Case 9:08-cv-80119-KAM Document 392 Entered on FLSD Docket 11/03/2009

Page 2 of 7 3 7. This one day, seven hour limit was waived under the Court’s Consolidation Order for circumstances that are not present in the deposition of Jane Doe No. 4. Specifically, the Court’s Order consolidating cases dated May 14, 2009 (DE 98) waives the seven hour limit so that the multiple Plaintiffs’ attorneys in these cases may have an adequate opportunity to question witnesses with regard to each particular Plaintiff: For depositions, Local Rule 26.1K (limiting deposition time to one day of seven hours) is waived so as to allow each party an adequate opportunity to develop fully the record as it may relate to that party. However, this waiver shall not be construed as authority for any party to take unnecessarily long depositions, or abuse the process. Any abuses of this waiver shall result in the imposition of appropriate sanctions against the offending party. (Order, p. 4, ¶ 8) (emphasis supplied). 8. This waiver does not apply to the deposition of a Plaintiff taken by the Defendant. Defendant’s counsel is the only attorney asking questions at this deposition. There are two other Plaintiffs’ attorneys attending the deposition, one of which has appeared by telephone. It is unlikely that either of these Plaintiffs’ attorneys will ask questions of Jane Doe No. 4 because nothing in the testimony indicates that their clients had any contact with Jane Doe No. 4. Plaintiffs’ counsel may have some questions of Jane Doe No. 4 in the nature of clarification of testimony, but Jane Doe No. 4’s counsel does not seek to use any part of Defendant’s seven hour aggregate for purposes of those questions, which will be brief and be made at the end of the deposition. 9. Separate and apart from the time limit for depositions under the federal and local rules, the questioning of Jane Doe No. 4 thus far has been argumentative, hostile, badgering and abusive. Substantial portions of the questioning have not related to any legitimate discovery purpose. For example, the first exhibit marked by Defendant’s attorney at the deposition was the Case 9:08-cv-80119-KAM Document 392 Entered on FLSD Docket 11/03/2009

Page 3 of 7 4 Proposal for Settlement that Defendant’s counsel served earlier in the case. Defendant’s attorney badgered Jane Doe No. 4 regarding this Proposal for Settlement, questioning whether she received and understood Defendant’s settlement proposal. Such a line of questioning is highly improper and plainly not designed to lead to admissible testimony or the discovery of admissible evidence. As another example, Jane Doe No. 4 testified early in her deposition that the first three massages approximately she gave to Jeffrey Epstein were not sexual and she did not remove any clothes. Beginning with approximately the fourth massage, during her junior year of high school when she was 16 years old, she was asked progressively to remove more clothes and engage in more activities of a sexual nature. Over approximately a two-year period, she would engage in massages in which she was naked and sexual activity occurred approximately twice a week during periods in which Epstein was in Palm Beach. She made it clear early in her testimony that she did not recall the exact dates in which these massages occurred. Despite this, Defendant’s counsel engaged in flurries of identical questions demanding exact dates, berating and badgering the witness, on repeated occasions throughout the course of the deposition. As demonstrated by these examples, a substantial portion of the deposition thus far has consisted of abusive questioning and not legitimate discovery.1 1 There are other instances of abuse by Defendant’s counsel at Jane Doe No. 4’s deposition. S.D.Fla.L.R. 30.1(A)(5) defines abusive deposition conduct to include the following: Questioning that unfairly embarrasses, humiliates, intimidates, or harasses the deponent, or invades his or her privacy absent a clear statement on the record explaining how the answers to such questions will constitute, or lead to, competent evidence admissible at trial. At the present time, Plaintiff’s attorneys have not yet received the copy of the transcript of Jane Doe No. 4’s deposition taken on October 27, 2009. Upon receipt, Plaintiff’s attorney will file the transcript to demonstrate the abusive practices engaged in by Defendant’s attorney. Case 9:08-cv-80119-KAM Document 392 Entered on FLSD Docket 11/03/2009

Page 4 of 7 5 10. This is not a commercial case, in which the questioning must necessarily be focused on numerous complex commercial documents. In Dunkin Donuts, Inc. v. Mary’s Donuts, Inc., 206 F.R.D. 518 (S.D.Fla. 2002), the Court allowed the Plaintiff to depose the Defendant’s accountant and corporate representative for an additional seven hours because it was a complex commercial case involving seven years of commercial activity and 10,000 pages of documents. Id. at 522. See also Pace v. City of Palmetto 11. Under Fed.R.Civ.P. 30(d)(1), S.D.Fla.L.R. 26.1(K) and the Court’s Consolidation Order (DE 98), it is the Defendant’s burden to demonstrate why more than seven hours of deposition time is necessary for a particular Plaintiff. Not only can Defendants not make such a demonstration, the deposition of Jane Doe No. 4 emphatically demonstrates that more than seven hours of deposition time would only provide Defendant with a license for abuse, which is plainly part and parcel of Defendant’s strategy to intimidate and harass the Plaintiffs in these cases. , 2007 WL 470477 (S.D.Fla. 2007) (granting a party one hour additional deposition time because the deponent had not read documents in advance, and was taking an inordinate amount of time during the deposition to read documents). The nature of this case, for damages arising from sexual misconduct, does not warrant a deposition in excess of seven hours. 12. Plaintiff Jane Doe No. 4 is willing to sit for a second day of deposition for a period of no longer than one hour and twenty five minutes, giving Epstein an aggregate of seven hours of deposition time. Under the circumstances, any more deposition questioning will clearly be abusive. This additional one hour twenty five minutes of deposition time is more than enough time for Defendant to complete any remaining legitimate questions of Jane Doe No. 4. WHEREFORE, Plaintiff respectfully requests a protective order consistent with Fed.R.Civ.P. 30(d)(1) and S.D.Fla.L.R. 26.1(K), as well as this Court’s Consolidation Order, Case 9:08-cv-80119-KAM Document 392 Entered on FLSD Docket 11/03/2009

Page 5 of 7 6 providing Defendant with no more than an additional one hour and twenty five minutes of deposition time of Jane Doe No. 4, and for such other and further relief as this Court deems just and proper. CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1.A.3 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, as Defendant’s counsel has advised that Defendant opposes this motion. Dated: November 3, 2009. Respectfully submitted, By: s/ Stuart S. Mermelstein 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 CERTIFICATE OF SERVICE I hereby certify that on November 3, 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/ Stuart S. Mermelstein Case 9:08-cv-80119-KAM Document 392 Entered on FLSD Docket 11/03/2009

Page 6 of 7 7 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 392 Entered on FLSD Docket 11/03/2009