Case 9:08-cv-80119-KAM Document 510 Entered on FLSD Docket 03/29/2010

Page 1 of 8 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 -----------------'/ EPSTEIN'S RESPONSE IN OPPOSITION TO JANE DOE'S MOTION FOR COURT ORDER RELEASING FBI RECORDS REGARDING EPSTEIN Defendant, JEFFREY EPSTEIN ("Epstein"), submits his Response in Opposition to Plaintiff, Jane Doe's, Motion for Court Order Releasing FBI Records Regarding Jeffrey Epstein ("Motion") (DE #486) and states: 1. On March 10, 2010, Jane Doe filed her Motion essentially seeking the FBI' s entire file on Epstein pursuant to 5 U.S.C. §552a(b)(l l). 2. Jane Doe argues that "the FBI gathered significant information about Epstein during the course of its criminal investigation of him for sexually abusing children. She seeks that information to help support her case against him." See DE #486 at 2. 3. As a threshold matter, the Court should deny Jane Doe's Motion as the procedures set forth in 28 C.F.R. § 16.21, et seq., in requesting records from the FBI were not followed. Case 9:08-cv-80119-KAM Document 510 Entered on FLSD Docket 03/29/2010

Page 2 of 8 4. Moreover, it is interesting that Jane Doe also seeks similar records from Epstein pursuant to various requests to produce which are now the subject of a Rule 4 appeal. See DE #s 4 77 and 502. These simultaneous requests should be scrutinized and are fmther reason why the FBI, the U.S. Attorney and the State Attorney must be placed on notice that said records are being sought by "backdoor" discovery methods. 5. Jane Doe does not provide any documents or other information from the FBI or U.S. Attorney in response to her request for records. Indeed, the overly broad and non-specific language of her subpoena could be a reason the FBI has not produced any records. See 28 C.F.R. § 16.3(b) (requiring that "[y Jou must describe the records that you seek in enough detail to enable Department personnel to locate them with a reasonable amount of effort. Whenever possible, your request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record .... If your request does not reasonably describe the records you seek, the agency's response to your request may be delayed."). 6. Next, the assertion that "[t]he FBI has advised Jane Doe that it will release the materials if this Court enters an appropriate order" is disingenuous. See Motion at I. There is nothing in the record, either by way of a paper filed by the FBI, affidavit of an FBI representative or even a letter or e-mail, to corroborate Jane Doe's statement. It is telling that the FBI did not produce anything in response to Jane Doe's subpoena, issued approximately five (5) months ago. 7. And it is doubtful the FBI made such a statement as 28 C.F.R. §16.22(a) provides that "no employee or former employee of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department ... without prior approval of the proper Department official in accordance with §§16.24 and 16.25 of this part." Section 2 Case 9:08-cv-80119-KAM Document 510 Entered on FLSD Docket 03/29/2010

Page 3 of 8 §16.24 requires the matter to be referred to a U.S. Attorney and mandates specific procedures to be followed in determining whether and under what circumstances the requested information should be disclosed. Moreover, the U.S. Attorney must request and receive a summary of the information sought and its relevance to the proceeding. See 28 C.F.R. §16.22(d). Only after these procedures are followed can the FBI and the U.S. Attorney produce responsive materials. 8. Moreover, 28 C.F.R. §16.26(a), outlines various factors the Department must consider in determining whether to disclose records; § 16.26(b) provides circumstances under which disclosure will not be made. 9. And even if the Court granted Jane Doe's Motion, the FBI and U.S. Attorney may "respectfully decline to comply" if the requirements of 28 C.F .R. §§ 16.24 and 16.25 have not been met. See 28 C.F .R. § 16.28. 10. The Court should therefore deny Jane Doe's Motion as the procedures and requirements outlined in 28 C.F.R. §16.21, et seq have not been satisifed. 11. This Court should also deny Jane Doe's Motion because it is merely an attempted fishing expedition. Jane Doe fails to demonstrate how the information is relevant to her case such that it would outweigh Epstein's privacy interests. 12. Jane Doe has asserted the following causes of action: Count I - "Sexual Battery Upon a Minor," Count II - "Cause of Action Pursuant to 18 USC §2255," Count III - "Intentional Infliction of Emotional Distress," and Count V - "Cause of Action Pursuant to Florida Statute 796.09." 13. Jane Doe's Florida RICO claim (Count IV) was dismissed with prejudice by this Court on March 3, 2010. See DE #125 in Case No. 08-80893. Yet Jane Doe refers to her "Civil 3 Case 9:08-cv-80119-KAM Document 510 Entered on FLSD Docket 03/29/2010

Page 4 of 8 RICO Case Statement" to argue that the FBI's files related Sarah Kellen and Nadia Marcinkova should be produced because of their "involvement in the scheme." See DE #486 at 2. 14. As Jane Doe's RICO claim was dismissed with prejudice, any argument that the FBI's files are relevant to prove a scheme or conspiracy should fall on deaf ears. 15. In addition, Jane Doe asserts that she "need the [FBI] information to help her prove her claims against Epstein." See DE #486 at 3. Yet, Jane Doe fails to articulate how the FBI's information will help her prove her case. Instead, she makes an amorphous reference to "other young girls whom Epstein sexually abused and who are relevant witnesses to Jane Doe's case." Jane Doe does not explain how these other unidentified young girls 1 would be relevant witnesses to her case and it is entirely speculative to suggest they have information relevant to Jane Doe's claims. 16. In her proposed "Privacy Act Court Order" attached to her Motion, Jane Doe notes that the Court must first determine that the need for disclosure of information outweighs the privacy interests of the subject of the disclosure, citing 5 U.S.C. §552a(b)(ll), Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984) and Tootle v. Seaboard Coast Line Railroad Co., 468 So. 2d 237 (Fla. 5th DCA 1984). 17. Perry and Tootle illustrate why the Court should deny Jane Doe's Motion. 18. In Perry, plaintiff sought to collect under a homeowner's insurance policy following the destruction of her home by fire. State Farm asserted an arson defense. State Farm filed a motion pursuant to 5 U.S.C. §552a(b)(l l) seeking to require the Social Security Administration to testify as to when plaintiffs Social Security benefits terminated (i.e. one month before the fire) to prove that plaintiff had a motivation to burn down her house and collect 1 Epstein assumes Jane Doe is referring to potential witnesses not currently known to her. If Jane Doe already has the names of the "other young girls" who may be potential witnesses, it undercuts her argument in favor of releasing the FBI records. 4 Case 9:08-cv-80119-KAM Document 510 Entered on FLSD Docket 03/29/2010

Page 5 of 8 insurance proceeds. The court denied the motion and found that "the balance tilts against disclosure because State Farm had no real need for the Social Security Administration's testimony. State Farm conld have utilized normal discovery procedures to obtain the information .... " Id. at 1447. 19. In Tootle, the plaintiff sought to prevent the Social Security Administration psychologist who examined him in a disability case from giving a deposition in his personal injury case. 468 So. 2d at 238. 20. Jane Doe's request is unlike those in Perry and Tootle which sought specific information related to a specific element of the case. To the contrary, Jane Doe makes a broad and blanket request for the FBI's entire file regarding Epstein. See Subpoena attached to Jane Doe's Motion. Notably absent from the subpoena is any reference to Jane Doe. Jane Doe is essentially seeking information related to every claim investigated by the FBI as it relates to Epstein. Thns, it is apparent the requested information is not relevant or reasonably calculated to lead to the discovery of admissible evidence as it relates to Jane Doe's claims. 21. Next, the court in Perry held that State Farm did not need the information and could have utilized normal discovery procedures to obtain it. 734 F.2d at 1447. Apart from not being able to demonstrate how the requested information is relevant, Jane Doe fails to demonstrate why she "needs" this information and why she cannot or has not been able to obtain it through traditional discovery. 22. Jane Doe testified regarding the individual who brought her to Epstein's house and as to her knowledge regarding others individuals who went to Mr. Epstein's house. This is not a situation where Jane Doe "needs" the FBI to determine the identity of a specific person that would have information relevant to Jane Doe's claims. This is, instead, a fishing expedition. 5 Case 9:08-cv-80119-KAM Document 510 Entered on FLSD Docket 03/29/2010

Page 6 of 8 23. Indeed, extensive discovery has been conducted in this and related cases and there has been numerous "fishing" expeditions. For example, counsel for Jane Doe deposed Larry Eugene Morrison and Larry Visoski, Epstein's pilots, for a combined total of approximately 8 hours without asking any questions related to his client. Instead the questions sought information regarding which celebrities have flown on Epstein's plane, improperly sought to illicit lay opinions from fact witnesses, asked questions regarding witnesses' feelings towards Mr. Epstein and their beliefs regarding media reports of this case, asked whether they would leave their children with Mr. Epstein and asked whether they would go back to work for Mr. Epstein assuming the media reports were accurate, among other things. Indeed, such questions were the subject of a Motion for Protective Order filed in the companion case L.M. v. Epstein, Case No. 502008CA028051XXXXMB AB in the Fifteenth Judicial Circuit. The Court granted Epstein's motion, finding the types of questions identified therein to be "highly inappropriate and irrelevant and not reasonably calculated to lead to the discovery of admissible evidence." 24. Regarding the scope of discovery, Judge Linnea Johnson noted in her October 28, 2009 Omnibus Order,2 "[w]hile the scope of discovery is broad, it is not without limits. Washington v. Brown & Williamson Tobacco, 959 F.2d 1566, 1570 (I Ith Cir. 1992) .... Courts have long held that '[w]hile the standard of relevancy [in discovery] is a liberal one, it is not so liberal as to allow a party to roam in the shadow zones of relevancy and to explore matter (sic) which does not presently appear germane on the theory that it might conceivably become so.' Food Lion Inc. v. United Food & Commercial Workers Intern. Union, 103 F.3d 1007, 1012-13 (C.A. D.C. 1997) (string cite omitted)." 2 The Omnibus Order (DE #377) was entered in the federal companion case Jane Doe No. 2 v. Epstein, Case No. 08- CIV-80119 MARRA/JOHNSON in the U.S. District Court, Southern District of Florida. 6 Case 9:08-cv-80119-KAM Document 510 Entered on FLSD Docket 03/29/2010

Page 7 of 8 25. Jane Doe's request for the FBI files clearly steps into the shadow zones of relevancy as Jane Doe fails to establish how the FBI files may be relevant to any of her causes of action. WHEREFORE, Defendant, JEFFREY EPSTEIN, respectfully requests the Court deny Jane Doe's Motion (DE #486) and grant any additional relief the Court deems just and proper. By: s/Michael J. Pike ROBERT D. CRITTON, JR., ESQ. Florida Bar #224162 MICHAEL 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 certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this 29th day of March 2009. Respectfully submitted, By: s/Michael J. Pike ROBERT D. CRITTON, JR., ESQ. Florida Bar No. 224162 [email protected] MICHAEL J. PIKE, ESQ. Florida Bar #617296 [email protected] BURMAN, CRITTON, LUTTIER & COLEMAN 303 Banyan Blvd., Suite 400 West Palm Beach, FL 33401 561/842-2820 Phone 561/253-0164 Fax (Counsel/or Defendant Jeffrey Epstein) 7 Case 9:08-cv-80119-KAM Document 510 Entered on FLSD Docket 03/29/2010