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, ____________________________________/ PLAINTIFFS JANE DOE NOS. 2-8’ APPEAL PURSUANT TO S.D.FLA.MAG.R. 4 AND OBJECTIONS AS TO MAGISTRATE JUDGE’S ORDER ON NET WORTH DISCOVERY Plaintiffs Jane Doe Nos. 2 et al., by and through undersigned counsel, hereby file this Appeal and Objections Pursuant to S.D.Fla. Mag.R. 4 as to the Magistrate Judge’s Order dated March 4, 2010 (DE 480), in accordance with S.D.Fla.Admin. Order 2009-51, as follows: Introduction This appeal concerns Defendant Jeffrey Epstein’s blanket assertion of the Fifth Amendment privilege in response to Plaintiffs’ interrogatories and request for production seeking net worth discovery. This discovery is pertinent to Plaintiffs’ claims for punitive damages. The Court previously considered the issue of Defendant's invocation of the Fifth Amendment privilege with regard to Plaintiffs’ discovery requests concerning the substantive claims and defenses in these cases. By Order dated January 27, 2010, this Court denied the Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 1 of 11 2 Plaintiffs’ objections to the Magistrate Judge’s discovery order, which upheld in substantial part the Defendant’s assertions of the Fifth Amendment privilege. (DE 455). The present issue, concerning net worth discovery, is very different. The connection between the generic documents and information sought by Plaintiffs regarding the Defendant’s financial status and Defendant’s apprehension of a real danger of incrimination would seem to be significantly more obscure and attenuated. Under these circumstances, it was incumbent upon the Magistrate Judge to consider the Defendant’s Fifth Amendment privilege claims with respect to each specific document request and interrogatory, in connection with the Defendant’s in camera submission.1 The Magistrate Judge did so with respect to Plaintiff’s document request no. 1, which seeks Defendant’s federal and state income tax returns.2 For the reasons set forth below, the Magistrate Judge’s Order is clearly erroneous or contrary to law to the extent that it upheld the Defendant’s assertion of the Fifth Amendment privilege in response to Plaintiff’s requests for production nos. 2-5, and interrogatory nos. 1-13. Plaintiffs request that the Magistrate Judge’s Order be set aside accordingly. It is not otherwise apparent from the Magistrate Judge’s Order, however, that each document request was considered vis-à- vis the question of whether the act of production of responsive documents could be incriminating. Likewise, it is not apparent that the Magistrate Judge considered each net worth interrogatory with respect to the danger of incrimination. 1 Plaintiffs, of course, must necessarily argue the Fifth Amendment issues arising from Plaintiffs’ net worth discovery requests without the benefit of Defendant’s in camera submission. Plaintiffs nonetheless assume for present purposes that, notwithstanding the Non-Prosecution Agreement, Defendant apprehends prosecution for federal offenses involving sexual activities with minors and for international sex trafficking, including offenses concerning money transfers and laundering pertaining to such trafficking. (See Magistrate Judge’s Order, p. 6). 2 Defendant has filed an objection to the portion of the Magistrate Judge’s Order rejecting the Defendant’s privilege claims as to tax returns (DE 477), which Plaintiffs oppose. Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 2 of 11 3 Argument I. THE ACT-OF-PRODUCTION DOCTRINE DOES NOT SUPPORT THE DEFENDANT’S ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE IN RESPONSE TO PLAINTIFFS’ NET WORTH DOCUMENT REQUESTS Plaintiffs’ Request for Production of Net Worth Documents included five basic requests, as follows: 1. All Federal and State income tax returns, including all W-2 forms, 1099 forms and schedules, for tax years 2003-2008. 2. All documents relating to the assets, liabilities, income, expenses, and net worth of Defendant, including without limitations, the following for each of the past five (5) years: a. Annual financial reports; b. Balance sheets; c. Income statements; d. Cash flow statements; e. Quarterly financial reports; f. Budget reports; and g. Financial analysis. 3. All documentation which refer or relate to financing or loans requested or applied for by the Defendant, including loan applications, appraisals, financial spreadsheets, etc. 4. Any and all appraisals indicating fair market value of real estate or other property of Defendant. 5. Any and all documents referring to or relating to investment or savings accounts, including, without limitations, account statements and summaries. The Fifth Amendment does not provide a basis to assert a blanket privilege in response to these requests “merely because the demanded documents contained incriminatory evidence, whether written by others or voluntarily prepared by [the party asserting the privilege].” United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 2043 (2000). “The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 3 of 11 4 the contents of the papers produced.” Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1581 (1976). The “act of production” doctrine established in Fisher, however, is not a panacea for avoiding all requests for production in their entirety. It is incumbent upon the Court to determine how the purported testimonial act of production could be incriminatory with respect to each category of documents sought. See Fisher, 425 U.S. at 411, 96 S.Ct. at 1581 (finding that the act of production of accountants’ records did not “pose[] any realistic threat of incrimination”); See also In re Connelly, 59 B.R. 421, 434-35 (Bankr. N.D. Ill. 1986) (holding that debtor’s “lack of any specificity” in assertion of Fifth Amendment privilege was deficient). Plaintiffs’ document request no. 2 seeks various financial statements and reports. Such documents, by their nature, would not reveal any information regarding specific transfers or transactions. These documents would set forth standard accounting categories and corresponding numbers which will be useful for net worth discovery. They could not conceivably be a link in the chain of evidence for the crimes that would be of concern to Defendant. In Fisher, the Court held that work papers prepared for the defendant by an accountant were not protected by the Fifth Amendment: “At this juncture, we are quite unprepared to hold that either the fact or existence of the papers or of their possession by the taxpayer poses any realistic threat of incrimination to the taxpayer.” Id. at 1581. Plaintiffs’ document request no. 3 seeks documents relating to financing or loans requested or applied for by Defendant. If, for example, if Defendant applied for a home mortgage, it is inconceivable that the act of producing such financing documents could be a link in the chain of evidence of a crime. In Connelly, the Court rejected a bankruptcy debtor’s blanket assertion of the Fifth Amendment privilege because it would encompass categories of documents that would not risk incrimination: Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 4 of 11 -- --- ---------- 5 [I]f Connelly fears investigation of his recent business practices while with Churchfield, how would disclosure of his nonbusiness property incriminate him? If he owns a personal residence and auto, or life savings and investments, or if a relative died leaving him property that he now holds personally, by what application of the Fifth Amendment can he now hide that, or information concerning it, from his creditors because of an unrelated business investigation? And if he apprehends a criminal investigation for certain business activities in a given time frame, why does he apprehend incrimination for answering questions about other unrelated business activities at other times? 59 B.R. at 435. Likewise, Defendant Epstein’s assertion of the Fifth Amendment privilege in response to all responsive net worth documents appears egregiously overbroad and dubious. Plaintiffs’ document request no. 4 seeks real estate appraisals and appraisals of other property of the Defendant. An appraisal is an independent opinion and evaluation on the value of specific property. Defendant Epstein’s ownership of real property is known to the criminal authorities. Again, it is inconceivable that the act of producing such a document could be a link in the chain of evidence to any crime which may be of concern to Defendant Epstein. Finally, Plaintiffs’ document request no. 5 seeks primarily statements for bank accounts and investment accounts. In United States v. Ghidoni, 732 F.2d 814 (11th Cir. 1984), the Eleventh Circuit held that bank account statements were not protected by the Fifth Amendment act-of-production doctrine: Ghidoni argues that the directive [for bank account statements] would tend to authenticate any documents obtained from the bank. In this regard, this case is indistinguishable from Fisher, where the government was seeking records prepared by an accountant for the defendant. Because the taxpayer could not authenticate the accountant’s work papers or reports by oral testimony, the Court held that the taxpayer’s production of those accounts would not assist in authentication. Similarly, only the bank could authenticate the records at issue here. Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 5 of 11 6 Id. at 818-19. Likewise Defendant Epstein should not be allowed to withhold bank account statements from discovery on Fifth Amendment grounds. Instead of evaluating the act of production with respect to each specific document request, the Magistrate Judge wielded a broad brush in denying discovery on Defendant’s “financial status and history.” (Order, p. 7). The Magistrate Judge notes that “as the requests at issue would require disclosure in connection with Defendant’s ownership of assets and transfers of assets inside and outside the United States, such disclosure could reveal the availability to him and/or use by him of interstate facilities, which again may implicate Defendant in additional crimes.” (Id.) Yet it is only the act of production that could give rise to a valid assertion of the Fifth Amendment privilege. It is not a basis to assert the Fifth Amendment privilege that the contents of documents show, for example, that Epstein used interstate facilities. See Hubbell, 530 U.S. at 36. In any event, the Magistrate Judge’s broad statement would not apply to, for example, standard financial statements, which would not be expected to identify specific assets or transfers of assets. Moreover, while as the Magistrate Judge recognizes, a party may have “justified concerns regarding waiver” of the privilege, he must nonetheless by in camera submission or otherwise advise the Court how the act of production in response to specific requests could incriminate him. See Fisher, 425 U.S. at 412. It is not at all apparent from the Magistrate Judge’s Order that this was done. See Bear Stearns, Inc. v. Wyler, Inc., 182 F.Supp. 2d 679, 681-82 (N.D. Ill. 2002) (rejecting assertion of Fifth Amendment privilege, noting that the defendant “does little to explain how the act of producing documents would pose a real danger of incrimination”). In Hubbell, the Supreme Court considered the circumstances in which an assertion of the Fifth Amendment privilege would be defeated because the existence and location of documents Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 6 of 11 7 was a “forgone conclusion.” 530 U.S. at 44-45. See also Fisher, 425 U.S. at 411. The Court in Hubbell concluded that the existence and location of documents sought by the government subpoena were not a forgone conclusion, and therefore the act of production had a testimonial aspect. 530 U.S. at 45. The facts in Hubbell are distinguishable from those here. “[I]n Hubbell, the incriminatory nature of the production of the documents sought was obvious.” Bear Stearns & Co., Inc. v. Wyler, 182 F.Supp. 2d 679, 683 (N.D.Ill. 2002). Specifically, production of the documents at issue in Hubbell, concerning the Whitewater investigation, was itself an admission that the defendant had failed to comply with a plea agreement. Id.; Hubbell, 530 U.S. at 36-44. Here, unlike Hubbell, there would seem to be no obvious testimonial aspects to the Defendant’s production of net worth documents, and, indeed, it is difficult to understand how production of such things as financial statements and real property appraisals could, in these cases, be both testimonial and incriminating. As noted by the Court in Fisher, these questions must be determined by the facts and circumstances of each case: [T]he more difficult issues are whether the tacit averments of the taxpayer are both “testimonial” and “incriminating” for purposes of applying the Fifth Amendment. These questions perhaps do no lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof. Fisher, 425 U.S. at 409. It does not appear from the Magistrate Judge’s Order that the peculiar facts and circumstances of these cases, considered with respect to each request for production at issue, was sufficiently considered. Rather, the Magistrate Judge issued a decision which “categorically” denied discovery on Defendant’s “financial status and history”, with the sole exception of Defendant’s tax returns. (Order, p. 7). Accordingly, the Magistrate Judge’s Order is clearly erroneous and contrary to law, and should be set aside to the extent that it upholds the Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 7 of 11 8 Defendant’s assertion of the Fifth Amendment privilege to document request nos. 2-5 in their entirety. II. RESPONSES TO PLAINTIFFS’ NET WORTH INTERROGATORIES WOULD NOT PROVIDE LINK IN THE CHAIN OF EVIDENCE FOR CONVICTION OF A CRIME Assertion of the Fifth Amendment privilege requires that reasonable cause exists to believe that a direct answer to a question would support criminal conviction or provide a link in the chain of evidence leading to a conviction. Hoffman v. United States, 341 U.S. 479 (1951). Each specific interrogatory should be separately evaluated to determine whether an answer would provide a link in the chain of evidence. For example, interrogatory no. 1 asks the Defendant to state the fair market value of all assets in which Defendant has an ownership interest. It is not apparent from information provided to Plaintiffs that ownership of any particular asset could be a link in the chain of evidence of a crime. Indeed, it would appear that the crimes for which Epstein would have reasonable cause to fear prosecution are not property crimes, and ownership of assets would not seem to be a link in the chain of evidence for crimes which would give Epstein concern. As another example, interrogatory no. 4 asks the Defendant to list all real property in which Defendant holds an ownership interest and interrogatory no. 7 asks the Defendant to list all cars, boats and airplanes in which he as an ownership interest. Plaintiff is not asking Defendant which properties he resided in, nor which cars or boats he used; rather, the interrogatory merely seeks ownership information for purposes of determining net worth. It would not seem that such static ownership information could give rise to a reasonable concern of being a link in the chain of evidence. Moreover, Defendant Epstein’s ownership of real property, cars and an airplane are well known, particularly to criminal authorities. Information on the Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 8 of 11 9 appraised values of these properties, which is useful for purposes of punitive damages, would seem to provide nothing to the government relating to evidence of crimes by Defendant. Conclusion Based on the foregoing, Plaintiffs respectfully request an Order (i) finding that the Magistrate Judge’s Order (DE 480) is either clearly erroneous or contrary to law with regard to Plaintiffs’ document request nos. 2-5 and interrogatories 1-13; (ii) setting aside the Magistrate Judge’s Order with regard to document request nos. 2-5 and interrogatories 1-13; (iii) directing Defendant to produce documents in response to document requests nos. 2-5 and to answer interrogatories nos. 1-11; and (iv) such other and further relief as this Court deems just and proper. Dated: March 18, 2010 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 Case 9:08-cv-80119-KAM Document 493 Entered on FLSD Docket 03/18/2010

Page 9 of 11 10 CERTIFICATE OF SERVICE I hereby certify that on March 18, 2010, 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 493 Entered on FLSD Docket 03/18/2010

Page 10 of 11 11 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 493 Entered on FLSD Docket 03/18/2010