Case 9:08-cv-80119-KAM Document 450 Entered on FLSD Docket 01/13/2010

Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80232-MARRA-JOHNSON JANE DOE NO. 3, Plaintiff, V. JEFFREY EPSTEIN, Defendant. I DEFENDANT, EPSTEIN'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS, AND DEFENDANT'S MOTION FOR SANCTIONS WITH INCORPORATED MEMORANDUM OF LAW Defendant, JEFFREY EPSTEIN, by and through his undersigned counsel, serves his Response In Opposition and Supporting Memorandum of Law to Plaintiff's Motion for Sanctions, Motion for Protective Order, And Incorporated Memorandum of Law (DE 244, "The Motion for Sanctions") and Motion for Sanctions against Plaintiff for Unilaterally Terminating the IME. In support, Defendant states: 1. On January 4, 2010, Plaintiff filed her Motion for Sanctions, which contains several misleading statements and assertions. 2. Plaintiff's IME was set to occur on November 24, 2009 at 250 Australian Avenue South, West Palm Beach Florida ("One Clearlake Centre"). All of the Plaintiffs' IMEs occurred at One Clearlake Center with the consent of their lawyers, Adam Horowitz and Stuart Mermelstein (the "Plaintiffs' Lawyers"). Plaintiffs' Lawyers always knew that Epstein's office was located on the 14th Floor of One Clearlake Centre, and they know full well that Epstein maintains an office there today. See Affidavit of Epstein attached as Exhibit "A". Plaintiff, Jane Doe #3's IME took place on the 15th Floor of Case 9:08-cv-80119-KAM Document 450 Entered on FLSD Docket 01/13/2010

Page 2 of 8 Jane Doe No. 3 v. Epstein Page 2 One Clearlake Centre at the offices of Prose Court Reporting, one Floor above the 14 th Floor where Epstein's office is located. The IME was scheduled at One Clearlake Centre in order to provide Plaintiffs' Attorneys with a video-feed from the IME room into an adjacent room so that Plaintiffs' Attorneys could monitor the IME as requested. In an effort to avoid any alleged contact between Epstein and any Plaintiff on the dates of the IMEs, the undersigned offered Plaintiffs' Attorneys his office located at 303 Banyan Boulevard within which to conduct the IMEs but Plaintiffs' Attorneys refused. During the time in which negotiations were taking place relative to the location where the IMEs would occur, Plaintiffs' Attorneys knew full well that Epstein's office was located at One Clearlake Centre because several depositions took place at the above location wherein a video-feed was utilized from Prose Court Reporting to Epstein's office in One Clearlake Centre so that Epstein could view the depositions from a separate floor. 1 3. Also, well before Jane Doe 3's IME took place, this court entered an Order (DE 369) wherein it outlined the procedure to be followed when Plaintiffs arrived at and exited One Clearlake Centre, which included Plaintiff's Lawyer contacting the undersigned by cellular telephone upon their arrival and Plaintiff's lawyer contacting the undersigned by cellular telephone once they had exited the building. While the undersigned lawyers were not in attendance at said IME, it appears that Plaintiff and her lawyer exited the building to take breaks without contacting the undersigned to let them know that they were exiting the building. See infra. Epstein cannot be expected to predict when Plaintiff and her lawyer would take a smoking break during the IME, 1 Of note, Epstein was not viewing Jane Doe Number 3's IME from any video-feed on November 24, 2009. Case 9:08-cv-80119-KAM Document 450 Entered on FLSD Docket 01/13/2010

Page 3 of 8 Jane Doe No. 3 v. Epstein Page 3 especially since Plaintiff and her lawyer refused and/or failed to contact the undersigned to let him know when they would be exiting the building. 4. On November 24, 2009, at or around 4:40 p.m., the undersigned's office was contacted by Dr. Hall (Defendant's IME Examiner) who stated that Plaintiff's counsel terminated the IME because Plaintiff and her lawyer, while on a smoking break, had seen Epstein exiting One Clearlake Centre through the lobby area, which occurred towards the end of the work day. At that time, the undersigned contacted Mr. Horowitz, who was not in attendance at the IME, to discuss the circumstances. See Affidavit of Michael Pike, Esq. attached hereto as Exhibit "B." On that telephone call, the undersigned lawyer explained to Mr. Horowitz that Epstein's office was still located in One Clearlake Centre, that Epstein was leaving the building at the end of the day to meet with the undersigned and Robert D. Critton, Jr., Esq. for an attorney-client meeting and that no one from Mr. Horowitz's office had contacted the undersigned to let him know that Plaintiff and her lawyer had exited the building to have a cigarette or otherwise. See Exhibits "A" and "B". Arguably, had Plaintiff's counsel contacted the undersigned as required by the Order (DE 369) this event could have been avoided altogether. 5. Despite Plaintiff's inability to follow simple directives, her lawyer now claims that Epstein "terrorized Jane Doe No. 3 by crossing paths with her .... " as he exited One Clearlake Centre to meet with his lawyers. See Motion for Sanctions at ,J3. "Terrorized" is certainly a stretch and is simply interposed as a means to prejudice Epstein in the eyes of the court. Again, Plaintiff and her counsel were on an unannounced smoke break. See Jessica Arbour, Esq.'s Affidavit attached to the Motion Case 9:08-cv-80119-KAM Document 450 Entered on FLSD Docket 01/13/2010

Page 4 of 8 Jane Doe No. 3 v. Epstein Page4 for Sanctions as Exhibit "A". How was Epstein supposed to know that Plaintiff and her lawyer were outside of One Clearlake Center at the time he was exiting the building to go meet his lawyers for an attorney-client meeting? He was not! It should also be noted that six (6) IMEs occurred in the exact same manner prior to Jane Doe No. 3's IME and at no time did any Plaintiff have an alleged "Epstein sighting." 6. Plaintiff forgets that her lawyers stipulated to the above location, and agreed to the procedure outlined in DE 369. The undersigned's office is not located in One Clearlake Centre. Therefore, the only way to know when Plaintiff and her lawyer were going to exit the building would have been for Plaintiff's Lawyer to call the undersigned by cellular telephone as anticipated by the above order. Based upon Ms. Arbour's Affidavit, Plaintiff and Ms. Arbour exited the building at or around 4:15. Based upon the transcript of the IME, Ms. Arbour returned to the IME room and terminated the IME at or around 4:35 p.m. Therefore, if Ms. Arbour is correct, the unannounced smoking break lasted approximately fifteen (15) to twenty (20) minutes. If the transcript is correct, the unannounced smoking break lasted only six (6) minutes and, based upon Jane Doe Number 3's allegations, resulted in a Jeffrey Epstein "sighting." 7. Importantly, Jeffrey Epstein did not notice anyone (much less Jane Doe No. 3 and her lawyer) when he exited the building to go meet with his lawyers. See Epstein Affidavit. He simply exited the building, got in his vehicle and left the premises. Jg. Moreover, Epstein did not make eye contact with them as he did not notice them outside the building and he certainly did not "terrorize" Jane Doe No. 3. 8. Any suggestion that the chance "visual" between Mr. Epstein and Jane Doe No. 3 was "pre-planned" would be absurd, disingenuous and false. The Case 9:08-cv-80119-KAM Document 450 Entered on FLSD Docket 01/13/2010

Page 5 of 8 Jane Doe No. 3 v. Epstein Page 5 undersigned has gone out of his way to make sure that Epstein is out-of-sight during depositions and IMEs. Had the Plaintiff and her counsel been in the IME room and on the separate floor where the IME was taking place or had Plaintiff's counsel notified the undersigned that they were exiting the building, no alleged contact would have occurred. 9. Had the "visual" been premeditated, the cancellation of the IME may have been justified, however, under these circumstances, it was grandstanding and improper. In that the Plaintiff has stated that she voluntary went to Epstein's home without trauma until she filed a lawsuit, this alleged brief visual encounter from a distance should not have resulted in the unilateral cancellation of her IME or any trauma whatsoever. 10. Ms. Arbour claims in her Affidavit that she is unaware how Dr. Hall learned of the alleged sighting of Mr. Epstein. The answer to that question is simple - Ms. Arbour went on the record and terminated the IME in front of Dr. Hall because she claimed to have seen Epstein while outside of the One Clearlake Centre building. See Transcript attached as Exhibit "C". 11. After having discussions with Mr. Horowitz and Epstein, the undersigned sent Mr. Horowitz a letter dated November 25, 2009 discussing the alleged incident as Mr. Horowitz had explained it to the undersigned on November 24, 2009. See Exhibit "B" attached to the Motion for Sanctions. Despite Plaintiff's contentions, the letter does not state that Epstein noticed Plaintiff or her lawyer as he exited the building, nor does it remotely concede that the event even happened because Mr. Epstein did not recall seeing anyone as he exited the building. The undersigned simply took Mr. Horowitz for Case 9:08-cv-80119-KAM Document 450 Entered on FLSD Docket 01/13/2010

Page 6 of 8 Jane Doe No. 3 v. Epstein Page 6 his word, and sent the November 25, 2009 letter to Mr. Horowitz in an effort to reschedule the IME that Ms. Arbour unilaterally terminated. 12. Despite Plaintiff's interpretation of the November 25, 2009 letter, Epstein does dispute that he saw Jane Doe No. 3 on November 24, 2009. See Epstein Affidavit attached hereto. Epstein does NOT recall ever seeing jane Doe No. 3 as he exited the building. Further, Epstein has NEVER seen or met Ms. Arbour and therefore would be unable to even recognize or identify her. 13. The unilateral termination of the IME was unnecessary, inappropriate and a substantial waste of physician and now attorney time, and the costs related to the IME ( court reporter and videographer) have now increased in that Dr. Hall will be required to travel to Palm Beach County to conclude Jane Doe No.: 3's IME, and an additional fee for the court-reporter and the videographer will be required as well. See Affidavit of Michael J. Pike, Esq. 14. The costs associated with the court reporter and videographer currently totals $1,260.00 for Visual Evidence and $2,207.65 for Prose Court Reporting for a total amount of $3,467.65. See Affidavit of Michael J. Pike, Esq. See Beecham v. City of West Sacramento, 2009 WL 689729 (E.D. Cal. 2009) Memorandum of Law In support of Motion 15. A substantial amount of administrative time went into the setting up the IME of Jane Doe No. 3, not to mention the many motions that were filed pursuant to Rule 35 to get the Plaintiffs to consent to a rule 35 IME. Weeks passed from the time that the Defendant's counsel first requested dates for the IMEs of Plaintiffs. Case 9:08-cv-80119-KAM Document 450 Entered on FLSD Docket 01/13/2010

Page 7 of 8 Jane Doe No. 3 v. Epstein Page 7 16. Pursuant to Rule 30(d)(2) and (3)(A) and (C) and its reference to 37(a)(5) and (d)), Federal Rules of Civil Procedure, the court may impose an appropriate sanction, including reasonable expenses in attorneys fees incurred by any party on a person who impedes or delays the fair examination of the deponent. While this matter involves and IME and not a deposition, the same legal application should be utilized here because an IME is an examination as contemplated by Rule 35. In this instance, the alleged and brief sighting of Epstein, which was completely unintended and inadvertent, should not have been grounds for Plaintiff's counsel and Plaintiff refusing to move forward with the IME. Furthermore, Plaintiff and Plaintiff's counsel had no right to unilaterally terminate/cancel the IME and fail to move forward. In fact, Plaintiff and her counsel have not, to date, filed an appropriate Motion seeking the proper termination of the IME. Plaintiff should have continued with the IME and filed any motion deemed appropriate post IME. Therefore, Defendant is asking for the costs associated with the attendance of the court reporter, her transcript and the presence of the videographer. Defendant would also request reasonable fees for being required to prepare this motion and affidavits associated with same. Rule 7 .1 A. 3. Certification of Pre-Filing Conference Counsel for Defendant conferred with Counsel for Plaintiff by telephone and by e- mail; however, an agreement has not been reached. WHEREFORE, Defendant moves this court for an order denying Plaintiff's Motion for Sanctions and Motion for Protective Order, granting sanctions to include attorneys fees and costs as set forth above and costs associated with the attendance of the court reporter, the transcript and the presence of the videographer and direction that Case 9:08-cv-80119-KAM Document 450 Entered on FLSD Docket 01/13/2010