Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 15 of 64 summary of evidence, guidelines calculations." The Government is asserting attorney-client privilege regarding this e-mail. I understand the reference to "Richards' and "Kuyrkendall" to be references to FBI agents — not attorneys in the U.S. Attorney's Office. Accordingly, the attorney-client privilege would not extend to this e-mail. The Government's Fiduciary Duty to Crime Victims Bars Any Privilege 74. I am familiar with the caselaw recited in our pleadings regarding a "fiduciary exception" (also known as the "Garner exception" in some settings) to privileges. In this case, the Government had a fiduciary obligation to protect the CVRA rights of Jane Doe No. I and Jane Doe No. 2. Specifically, because they were recognized "victims" under the CVRA, the Government had obligations to provide them rights under the CVRA, including the right to confer, the right to notice, and the right to be treated with fairness. Because of this fiduciary duty, an exception applies to many of the Government privilege claims regarding interactions with the victims. 75. The fiduciary duty of the Government to the victims in this case is clear. In 2007, the FBI determined that both Jane Doe No. I and Jane Doe No. 2 were victims of sexual assaults by Epstein while they were minors beginning when they were approximately fourteen years of age and approximately thirteen years of age respectively. These sexual assaults involved use of means of interstate commerce (i.e., a telephone) and travel in interstate commerce. Both Jane Does were initially identified through the Palm Beach Police Department's investigation of Epstein. 76. Confirming the fact that the Government had identified Jane Doe No. 1 as a victim in this case, on about June 7, 2007, FBI agents hand-delivered to Jane Doe No. 1 a standard CVRA victim notification letter. The notification promises that the Justice Department would make its "best efforts" to protect Jane Doe No. l's rights, including title reasonable right to confer with the attorney for the United States in the case" and "to be reasonably heard at any public proceeding in the district court involving . . . plea .. .." The notification further explained that "[alt this time, your case is under investigation." 77. Similarly, on about August 11, 2007, FBI agents hand-delivered to Jane Doe No. 2 a standard CVRA victim notification letter. The notification promises that the Justice Department would make its "best efforts" to protect Jane Doe No. l's rights, including "[t]he reasonable right to confer with the attorney for the United States in the case" and "to be reasonably heard at any public proceeding in the district court involving ... plea ...." The notification further explained that "[a]t this time, your case is under investigation." 78. Early in the investigation, the FBI agents and the Assistant U.S. Attorney had several meetings with Jane Doe No. 1. Jane Doe No. 2 was represented by counsel that was paid for by Epstein and, accordingly, all contact was made through that attorney. These meetings occurred because the FBI had obligations to protect the victims' rights under the CVRA. 79. In October 2007, shortly after the initial non-prosecution agreement was signed between Epstein and the U.S. Attorney's Office for the Southern District of Florida, Jane Doe No. I was contacted to be advised regarding the investigation. On October 26, 2007, Special Agents E. Nesbitt Kuyrkendall and Jason Richards met in person with Jane Doe No. 1 because she was recognized as a "victim' of Epstein's crime. 15 EFTA00179713

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 16 of 64 80. In all of these dealings between the Government and the victims, as well as other dealings of a similar nature, the Government had a fiduciary obligation to protect the interests of the victims under the Crime Victims Rights Act. Accordingly, the Government is precluded from raising any privilege claim to which a fiduciary exception applies or, at the very least, any privilege assertion would be outweighed by the victims' compelling need for the material. 81. An illustration of a situation where the fiduciary duty exception applies is found on page 1 of the supplemental privilege log (DE 216-1), with regard to supplemental box No. 3 (P-013282 to 83). The entry here reads: "7/08/08 email from A. Marie Villafafia to A. Acosta, J. Sloman, K. Atkinson, and FBI re proposed response to Goldberger's letter re victim notification." In responding to defense attorney Goldberger's letter about victim notification, the U.S. Attorney's Office had a statutory duty under the CVRA to protect the victims' interests. Accordingly, the Office cannot assert privilege when questions about whether it fulfilled its obligations to the victims have arisen in this case or, at the very least, any privilege assertion would be outweighed by the victims' compelling need for the materials. 82. Another illustration of a situation where the fiduciary duty exception applies is found on page 16 of the first privilege log (DE 212-1), with regard to Box #2 P-010526 to P-010641. The entry reads: "File folder entitled tsrch re Crime Victims Rights' containing attorney research, handwritten notes, draft victim notification letter, and draft correspondence to Jay Lefkowitz." Here again, the materials at issue go to the heart of this case — what kind of notifications were made to the victims and how did the defense attorneys shape and limit those notifications. Moreover, in evaluating victims' rights issues and determining what kind of letter to send, the Government was fulfilling legal duties that it owed to the victims. Accordingly, the Office cannot now assert privilege when questions about whether it fulfilled its obligations to the victims have arisen in this case. Communications Facilitating Crime-Fraud-Misconduct Not Covered 83. I am familiar with the cases cited in our brief regarding an exception to various privileges when the communications concern crime, fraud, or government misconduct. Many of the important documents about the treatment of the victims to which the Government is asserting privilege would fall within that exception. 84. With regard to fraud and government misconduct, a number of the documents in the Government's privilege log concern concealment from the victims of the existence of a non- prosecution agreement between the Government and Epstein. I have reviewed a copy of the non- prosecution agreement signed on about September 24, 2007, by Epstein and his attorneys and a representative of the U.S. Attorney's Office. The text of that agreement bars disclosure of the agreement to the victims. 85. On about January 10, 2008, my clients Jane Doe No. 1 and Jane Doe No. 2 received letters from the FBI advising them that "Whis case is currently under investigation. This can be a lengthy process and we request your continued patience while we conduct a thorough investigation." The statement in the notification letter was deceptive, because it did not reveal that the case had previously been resolved by the non-prosecution agreement entered into by Epstein and the U.S. Attorney's Office discussed previously. Moreover, the FBI did not notify Jane Doe No. 1 or Jane Doe No. 2 that a plea agreement had been reached previously, and that part of the agreement was a non-prosecution agreement with the U.S. Attorney's Office for the 16 EFTA00179714

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 17 of 64 Southern District of Florida and that the Non-Prosecution Agreement would resolve the federal case completely. (Whether the FBI itself had been properly informed of the non-prosecution agreement is also unclear. We are not alleging misconduct by the FBI, but rather that the FBI was not properly informed about the case or, in any event, was acting at the direction of the U.S. Attorney's Office.) 86. In about April 2008, Jane Doe No. I contacted the FBI because Epstein's counsel was attempting to take her deposition and private investigators were harassing her. Assistant U.S. Attorney A. Marie Villafafia secured pro bono counsel to represent Jane Doe No. 1 and several other identified victims in connection with the criminal investigation. Pro bono counsel was able to assist Jane Doe No. I in avoiding the improper deposition. AUSA Villafafia secured pro bono counsel by contacting Meg Garvin, Esq. of the the National Crime Victims' Law Center in Portland, Oregon, which is based in the Lewis & Clark College of Law. During the call, Ms. Garvin was not advised that a non-prosecution agreement had been reached in this matter. 87. On May 30, 2008, another one of my clients who was recognized as an Epstein victim by the U.S. Attorney's Office, received letters from the FBI advising her that "1-11his case Is currently under investigation. This can be a lengthy process and we request your continued patience while we conduct a thorough investigation." The statement in the notification letter was deceptive because it did not reveal that the case had been resolved by the non-prosecution agreement entered into by Epstein and the U.S. Attorney's Office in September 2007. 88. In mid-June 2008, I contacted AUSA Villafafia to inform her that I represented Jane Doe No. 1 and, later, Jane Doe No. 2. I asked to meet to provide information about the federal crimes committed by Epstein, hoping to secure a significant federal indictment against Epstein. AUSA Villafaffa and I discussed the possibility of federal charges being filed. At the end of the call, AUSA Villafafia asked me to send any information that I wanted considered by the U.S. Attorney's Office in determining whether to file federal charges. I was not informed that previously, in September 2007, the U.S. Attorney's Office had reached an agreement not to file federal charges. I was also not informed that any resolution of the criminal matter was imminent at that time. Presumably the reason the U.S. Attorney's Office withheld this information from me was because of the confidentiality provision that existed in the non-prosecution agreement. At this point it is clear that AUSA Villafana was restricted in what she was being permitted to tell me. 89. On July 3, 2008, I sent to AUSA Villafafia a letter. In the letter, I indicated my client's desire that federal charges be filed against defendant Epstein. In particular, I wrote on behalf of my clients: "We urge the Attorney General and our United States Attorney to consider the fundamental import of the vigorous enforcement of our Federal laws. We urge you to move forward with the traditional indictments and criminal prosecution commensurate with the crimes Mr. Epstein has committed, and we further urge you to take the steps necessary to protect our children from this very dangerous sexual predator." When I wrote this letter, I was still unaware that a non-prosecution agreement had been reached with Epstein — a fact that continued to be concealed from me (and the victims) by the U.S. Attorney's Office. I only learned of this fact later on. 90. As alleged in the preceding paragraphs, and elsewhere in this affidavit and in this case, deliberate concealment from crime victims and their legal counsel of the existence of a signed 17 EFTA00179715

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 18 of 64 non-prosecution agreement would be a fraud and government misconduct. Documents relating to that fraud and misconduct would then fall outside of many of the privileges being asserted. 91. An illustration of a document to which the crime-fraud-misconduct exception applies on this basis is found on page 3 of the supplemental privilege log (DE 216-1), with regard to Suppl. Box #3 P-013342 to P-013350. The entry reads: "File folder entitled '12/05/07 Stan• to Acosta' containing drafts of 11/30/07 letters from A. Acosta to K. Starr and from J. Sloman to J. Lefkowitz re performance and victim notification with handwritten notes and edits by A. Marie Villafafla." Again, these materials are central to the dispute in this case, as they involve discussions between the U.S. Attorney's Office and defense attorneys about notifications to crime victims. And given the dates of the communications, in all likelihood they would be related to the deceptive notifications that the Government made to the victims a few weeks later. 92. Another illustration of a document to which the crime-fraud-misconduct exception applies is found on page I of the supplemental privilege log (DE 216-1), with regard to Suppl. Box #3 P- 013282 to P-013283. The entry reads: "7/9/08 Email from A. Marie Villafafia to A. Acosta, J. Sloman, K. Atkinson, and FBI re proposed response to Goldberger letter re victim notification." These communications would presumably reflect efforts by the government prosecutors and Epstein's defense attorneys (e.g., Goldberger) to kcep the non-prosecution agreement secret. 93. Another illustration of where the crime-fraud-misconduct exception would apply is to information that the Government possesses that Bruce Reinhart learned private, non-public information about the Epstein case. This would show (at the very least) misconduct by Bruce Reinhart in later representing Epstein-related entities. Because the Government's (inadequate) privilege log does not reveal which entries relate to Reinhart, it is not possible to point the Court to the specific documents that demonstrate this misconduct. These documents, however, are covered by the crime-fraud-misconduct exception. 94. Another illustration of where the crime-fraud-misconduct exception could potentially apply is with regard to information that the Government possesses that Matthew Menchel has a personal or business relationship with defendant Jeffrey Epstein. Gov't Answers to RFA's 120. This could potentially show misconduct by Menchel, and also potentially a motive to violate the victims' rights as explained previously. The Government's privilege log has numerous entries showing that Menchal was substantially and personally involved in making decisions related to the Epstein prosecution. See, e.g., page 19 of the first privilege log (DE 212-1), with regard to Box #3 P-011923 to P-011966. The victims have information suggesting that immediately after leaving his employment with the U.S. Attorney's Office, Menchel was associated with Epstein- controlled entities or had some business relationship with him. The documents that the Government possesses showing a personal or business relationship between one of its prosecutors and the man he was charged with prosecuting should be produced. 95. The Government has admitted that its internal affairs component — the Office of Professional Responsibility — has collected information about possible improper behavior during the investigation of the Epstein matter. Gov't Answers to RFA 122 (government admits that "The Justice Department's Office of Professional Responsibility and/or other Government entities have collected information about ... other government attorney's [apart from Bruce Reinhart's] possible improper behavior in the Epstein matter"). The fact that the Government's own investigating agencies have collected such information demonstrates that there is a prima facie 18 EFTA00179716

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 19 of 64 case of improper behavior, which is enough to trigger the crime-fraud-misconduct exception to various privileges. Factual Materials Not Privileged 96. As noted in the accompanying legal memorandum, factual materials are generally not covered by the privileges at issue in this case. Many of the materials to which the Government is asserting privilege are factual materials. Assertions of Attorney-Client Privilege 97. The Government has asserted attorney client privilege regarding many documents. Yet with regard to most of these assertions, it is impossible to determine who is the attorney, who is the client, whether professional legal services are being rendered, and whether the communications were confidential to those involved in the delivery of legal services. Accordingly, it is very difficult for me to respond to many of the assertions of attorney client privilege and, in any event, the Government has failed to carry its burden of showing that the privilege applies. 98. An illustration of documents at to which attorney-client privilege appears to have been improperly asserted or inadequately described is found at page 7 of the first privilege log (DE 216-1), with regard to Suppl. Box #3 P-013811 to P-013833. The entry for these twenty-two pages of documents reads: "File folder entitled 'Information Packet Drafts' containing several drafts of Informations, and complete draft Information packet." It is impossible from this description to see how the attorney-client privilege applies to these documents. I could provide many other illustrations of the problem. 99. The Government's attorney-client privilege claim directly covers situations where it was in a fiduciary relationship with the victims and therefore is limited in now asserting privilege. For example, page 3 of the supplemental privilege log (DE 216-1) contains an entry concerning Suppl. Box #3 P-013342 through P-013350, which involves "File folder entitled '12/05/07 Starr to Acosta' containing drafts of 11/30/07 letters from A. Acost to K. Starr and from J. Sloman to J. Leficowitz re performance and victim notification with handwritten notes and edits by A. Marie Villafafia." This information goes very directly to the issues involved in this case, as it goes directly to "victim notification." Yet the Government has asserted an attorney-client privilege to prevent the victims from learning what is in these documents. The fiduciary exception to the attorney-client privilege applies in this situation, and limits the government's ability to invoke a privilege. This also appears to be shared communications between the Government and Epstein's attorneys, and it is unclear how the attorney-client privilege could ethically apply to such documents. 100. As one example of why the victims have established a compelling need for the materials described in the preceding paragraph (and other materials like them) is the fact that the Court has indicated that it will be considering an "estoppel" argument raised by the Government as a defense in this case. DE 189 at 12 n.6. The Court has noted that this argument "implicates a fact-sensitive equitable defense which must be considered in the historical factual context of the entire interface between Epstein, the relevant prosecutorial authorities and the federal offense victims - including an assessment of the allegation of a deliberate conspiracy between Epstein and federal prosecutors to keep the victims in the dark on the pendency of negotiations between Epstein and federal authorities until well after the fact and presentation of the non-prosecution agreement to them as a fait accompli." DE 189 at 12 n.6 (emphasis added). The materials to 19 EFTA00179717

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 20 of 64 which the Government is asserting attorney-client privilege go directly to that "interface" between the victims, the Government, and Epstein. The victims have a compelling need for this information and the fiduciary exception to the attorney-client privilege applies to permit the Court to provide these documents to the victims. 101. The Government has not explained any harm that would come from releasing the documents covered by attorney client privilege to the victims. If the Government raises any such harm, I respectfully request an opportunity to provide additional information on that alleged harm. Deliberative Process Privilege 102. Some of the correspondence that is being withheld by the Government under the deliberative process privilege concerns an investigation that the Justice Department's Office of Professional Responsibility (OPR) opened with' regard to the Epstein case. This investigation was undertaken at the request of the victims in this case. On December 10, 2010, co-counsel, Professor Paul Cassell of the University of Utah College of Law, and I met with the U.S. Attorney for the Southern District of Florida regarding this case in the U.S. Attorney's Office in Miami, Florida. At on that date, Professor Cassell presented a letter to the U.S. Attorney, Mr. Ferrer, asking him to personally investigate what happened during the Epstein prosecution and how the victims were treated during that investigation. Based on the privilege log that has been provided, as well as subsequent correspondence sent to Professor Cassell, that request for investigation was turned over to OPR in Washington, D.C. 103. The ultimate outcome of the OPR investigation is unclear. What is clear is that many documents are being withheld about that investigation — documents that would go to the central issues in this case. Approximately three whole pages of the privilege log — pages 12 through 14 of the supplemental privilege log (DE 216-1) — relate to the OPR investigation of how the Epstein case was handled and how the victims were treated. 104. A deliberative process privilege claim can only be asserted with regard to the process of reaching a decision, not the ultimate decision itself. The Government here has apparently asserted a deliberative process claim over not only the OPR process, but also over the OPR decision. It is not clear which document embodies the final OPR decision (or, given the inadequacies of the Government's privilege log, whether that final decision has been produced). Given the limited descriptions of the documents that have been provided, it appears that the OPR decision may be reflected in a document found on page 13 of the supplemental privilege log (DE 216-1), with regard to Suppl. Box #3 P-013940 to P-013942. The description there reads: "Draft Letter, marked 'Confidential: To Be Opened by Addressee Only,' Robin C. Ashton to Wifredo A. Ferrer, with handwritten corrections." No date is provided regarding this letter. Nor is there any indication as to whether the letter was or was not circulated to other persons. It is also noteworthy that this letter is described as a "draft" letter. Nowhere in the privilege log is the final version of the letter indicated, raising questions about what was "draft" and what was "final." If this is the final embodiment of OPR's conclusions, then this letter would not be protected by a "deliberative process" privilege, because the deliberations would have come to an end. (It is also worth noting that because OPR is an agency that investigates misconduct by federal prosecutors, it would not be providing attorney-client advice to prosecutors and its 20 EFTA00179718

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 21 of 64 documents would not be attorney-client privileged with regard to, for example, the U.S. Attorney's Office for the Southern District of Florida.) 105. The fact that OPR has investigated many of the exact claims raised by Jane Does I and 2, and were able to gather documents unobstructed by the Government in order to reach its conclusion likely means that production of the OPR file to the victims in this case could significantly shortcut this discovery process and the litigation. Additionally, if OPR "needed" the documents to investigate and make findings regarding the victims' claims, then logically the victims share that "need" and have no other means through which to obtain the documents. The Government has not explained any harm that would come from releasing the documents covered by deliberative process privilege to the victims. If the Government raises any such harm, I respectfully request an opportunity to provide additional information on that alleged harm. Investigative Privilege 106. The investigative privilege is a qualified privilege, which balances the need of particular litigate for access to information against any public interest in non-disclosure. That balancing process is ordinarily made with reference to factors discussed in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.Pa.1973), specifically: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiffs suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case. On the facts of this case, these factors weigh in favor of disclosing the information the victims have requested. 107. With regard to factor (1) (the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information), I represented four victims of Epstein's sex offenses in Federal Court — Jane Doe No. 1, Jane Doe No. 2, and a victim I will refer to as "S.R." and "M.J.", and other victims of Jeffrey Epstein's abuse as well. If further information is disclosed about this case, that will not discourage them from providing information, but rather will encourage them. I have also talked personally to attorneys for a number of other victims in this case. I have been told that many of these other victims hope that Jane Doe No. 1 and Jane Doe No. 2 are successful in their case. 108. With regard to factor (2) (the impact upon persons who have given information of having their identities disclosed), Jane Doe No. 1 and Jane Doe No. 2 are not asking for information that would identify any particular victim. Accordingly, there will be no effect on other victims. Additionally, I am aware of the true names of many of Epstein's victims and that information has 21 EFTA00179719

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 22 of 64 not been disseminated to the public where those individual victims did not wish for their identities to be disseminated. 109. With regard to factor (3) (the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure), this is a lawsuit to force the compliance by the Government with its CVRA obligations. Accordingly, the Government's "program" of providing victims' rights will be directly improved if the victims are able to enforce their rights in this lawsuit. 110. With regard to factor (4) (whether the information sought is factual data or evaluative summary), many of the items that the victims seeks arc factual summaries. An example of this is found at page 18 of the first privilege log (DE 212-1), with regard to Box #3 P-011778 to P- 011788. The entry reads: "File folder entitled '6/12/09 Victim Notif. Log' containing chart with victim contact information and attorney notes regarding dates and type of contacts." This would include, for example, dates of contacts with Jane Doe No. 1 and Jane Doe No. 2, which would be purely factual information. ill. With regard to factor (5) (whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question), Jane Doe No. 1 and Jane Doe No. 2 are plainly victims of a crime, not criminal defendants. Indeed, as the Court is aware, it is the criminal defendant (Jeffrey Epstein) who has undertaken several "limited" intervention efforts to try and block disclosure of information to the victims. 112. With regard to factor (6) (whether the police investigation has been completed), the investigation of Epstein was completed years ago and the Government has not produced in its privilege log any information indicating recent investigative activity. 113. With regard to factor (7) (whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation), it appears than OPR investigation has arisen as a direct result of the victims' efforts in this case. However, it does not appear that release of any information to the victims would hamper any disciplinary proceedings. Indeed, to the extent that the victims are able to obtain information about this case and find information about misconduct, then they can provide that information to Government and other disciplinary entities as appropriate. 114. With regard to factor (8) (whether the plaintiffs suit is non-frivolous and brought in good faith), it should be clear at this juncture of a five-year long case that the victims have a substantial claim that is brought in good faith. 115. With regard to factor (9) (whether the information sought is available through other discovery or from other sources), as recounted throughout this affidavit, the victims have no other way to obtain the information at issue in this privilege debate, as it involves information internal to the Justice Department. 116. With regard to factor (10) (the importance of the information sought to the plaintiffs case), the information that the victims are seeking is highly important to their case. Indeed, without adequate proof, the Court has indicated that it may have to deny the victims' petition. DE 99 at 11. Throughout this affidavit, I have provided numerous examples and explanations of why the victims need the information that they are requesting. The documents to which the Government 22 EFTA00179720

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 23 of 64 is asserting investigative privilege, for example, bear directly on the Government's alleged "estoppel" defense, which the victims need a complete evidentiary record to dispute. Work-Product Doctrine 117. A work product claim can be defeated by a showing of substantial need and undue hardship to obtain the materials in other ways. In this affidavit, I have tried to articulate the specific and compelling need for all of the materials that victims are seeking. I will not repeat all of those assertions here, but simply note that I stand ready to provide any additional information that the Court may require to determine the compelling need that the victims have for the materials they have requested as well as the undue hardship (if not actual impossibility) of obtaining the materials in other ways. Any balancing of considerations tips decisively in the victims favor. 118. As one example, the victims have a compelling need for the materials that OPR collected as part of its investigation. Because Justice Department attorneys are generally required to talk to OPR investigators, OPR was apparently able to investigate the claims of misconduct related to the Epstein case by getting statements from the attorney's involved. These interviews appear to be recorded in materials found at page 14 of the supplemental privilege log (DE 216-1), with regard to Suppl. Box #3 P-013956 to P-013846 [sic — apparently should be P413970, a total of 14 pages]. Judging from the entry, these notes would be factual statements from Justice Department prosecutors about how the Epstein case was handled and whether any misconduct occurred during the handling of the case. Those are central issues in this case. There is no other way for the victims to obtain information about these subjects, because the Justice Department has declined to provide information on this subject. 119. The victims have established a substantial need for the materials they are requesting in the previous paragraphs of this affidavit that review, request-by-request, their document production requests numbers 1 through 25 and supplemental request number 1. 120. As another example of why the victims have established a compelling need for the materials is the fact that the Court has indicated that it will be considering an "estoppel" argument raised by the Government as a defense in this case. DE 189 at 12 n.6. The Court has noted that this argument "implicates a fact-sensitive equitable defense which must be considered in the historical factual context of the entire interface between Epstein, the relevant prosecutorial authorities and the federal offense victims - including an assessment of the allegation of a deliberate conspiracy between Epstein and federal prosecutors to keep the victims in the dark on the pendency of negotiations between Epstein and federal authorities until well after the fact and presentation of the non-prosecution agreement to them as a fait accompli." DE 189 at 12 n.6 (emphasis added). The materials to which the Government is asserting work product protection go directly to that "interface" between the victims, the Government, and Epstein. The victims have no other way of showing what that interface is. The Government will not be harmed if the materials are provided to the victims. Grand Jury Information 121. The victims' legal pleading has explained why the Government has not properly asserted any grand jury secrecy to the documents at issue. In addition, many of the Government's grand jury privilege assertions appear to broadly cover both grand jury and non-grand jury information. Even if the Court allows the Government to assert some form of grand jury privilege, it should require the Government to sever grand jury materials from non-grand jury materials. 23 EFTA00179721

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 24 of 64 122. An illustration of this problem comes from page 12 of the first privilege log (DE 212-1), with regard to Box #2 P-008616 to P-008686. The entry reads: "File folder entitled 'FBI Summary Charts' containing chart prepared at direction of AUSA, containing victims names, identifying information, summary of activity, and other information relevant to indictment." This does not appear to be a document that was ever presented to the grand jury or that directly discloses grand jury proceedings. Moreover, to the extent that it involves some kind of limited disclosure of grand jury proceedings, that limited disclosure could be redacted and the other information provided to the victims. 123. It does not appear that any of the alleged grand jury materials that the Government is asserting privilege involve on-going grand jury issues. Moreover, it does not appear that disclosing any of the materials would "tip off" a potential target to a Government investigation. Of course, Jeffrey Epstein (and his associates) are well aware of the Government's investigation into their crimes against young girls for sexual purposes. 124. The Government has not explained any harm that would come from releasing the documents to the victims. If the Government raises any such harm, I respectfully request an opportunity to provide additional information on that alleged harm. Privacy Rights of Other Victims 125. Jane Doe No. 1 and Jane Doe No. 2 do not seek confidential or identifying information about any other victims. To clarify that fact, on July 31, 2013, I sent a letter to the Government stating, in part, that "to avoid any interference with any privacy rights of victims who are not parties to this litigation, Jane Doe #1 and Jane Doe #2 are not seeking any identifying information about other victims. In any of the documents that Jane Doe #1 and Jane Doe #2 have requested the Government produce, the Government should not produce the names of other victims or other identifying information (e.g., address or telephone number) but should instead redact that information." I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and belief. Executed this 16th day of August, 2013. /s/ Bradley J. Edw rds BRADLEY J. EDWARDS, ESQ. Attachments: 1. October 3, 2011, request for production; 2. June 24, 2013, supplemental request for production; and 3. Victims' Requests for Admissions and Government Answers 24 EFTA00179722

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 25 of 64 EXHIBIT 1 To Brad Edwards Affidavit EFTA00179723

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 26 of 64 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2, Plaintiffs UNITED STATES, Defendants JANE DOE #1 AND JANE DOE #2'S FIRST REQUEST FOR PRODUCTION TO THE GOVERNMENT REGARDING INFORMATION RELEVANT TO THEIR PENDING ACTION CONCERN THE CRIME VICTIMS RIGHTS ACT COME NOW Jane Doe #1 and Jane Doe #2 ("the victims"), by and through undersigned counsel, and request the defendant United States (hereinafter "the Government") to produce the original or best copy of the items listed herein below for inspection and/or copying, pursuant to the Court's Order (DE #99) directing discovery in this case. BACKGROUND As the Government will recall, the victims have asked the Government to stipulate to undisputed fads in this case. The Government has declined. Accordingly, the victims filed their Motion for Finding of Violations of the Crime Victims' Rights Act and Request fora Hearing on Appropriate Remedies (DE 48) (the victims' "summary judgment motion") along with a Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts (DE 49). On September 26, 2011, the Court denied the victims' motion to have their facts accepted (DE 99 at 11). At the same time, however, the Court has ordered discovery to develop the EFTA00179724

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 27 of 64 factual record concerning the summary judgment motion (DE 99 at 11). The Court reserved ruling on the victims' motion for an order directing the Government not to suppress relevant evidence (DE 99 at 11). On September 28, 2011, the victims requested that the Government voluntarily provide documents concerning this case. The Government declined to provide even a single document. Accordingly, the victims now seek the following information relevant to their pending summary judgment motion. DISCOVERY REQUESTED The numbered discovery requests below should all be construed in light of the definitions of terms provided at the end of the requests. 1. In the victims' currently-pending summary judgment motion, the victims contend that the Government conducted an extensive criminal investigation into Jeffrey Epstein's sexual exploitation of young girls, including Jane Doe #1 and Jane Doe #2 between 2001 and 2008. The victims also contend that the FBI and other federal agencies established that Epstein operated a large criminal enterprise that used paid employees and underlings to repeatedly find and bring minor girls to him. In deferring ruling on the victims' summary judgment motion, the Court noted that the victims had alleged that the FBI and the U.S. Attorney's Office's "investigation developed a strong case for a federal prosecution against Epstein based on 'overwhelming' evidence." DE 99 at 2. The Court, however, also noted that this was an allegation that needed "further factual development." DE 99 at 2 n.2. Please provide all documents, correspondence, and other information that supports these victims' allegations, including: (a) the FBI case file on the Epstein case; (b) all documents, correspondence, witness statements, FBI 302s, and other similar information, that the Government collected as part of its case against and/or investigation of Epstein, including any information provided to Epstein or receive from Epstein as part of "discovery" or exchange of information concerning the case; (c) all documents, correspondence, witness statements, and other similar information that the Government received from any federal, state, local, or other law enforcement agency regarding sex offenses committed against children by Jeffrey Epstein; (d) the 82-page prosecution memorandum (a/k/a "pros memo") outlining numerous federal sexual offenses committed by Epstein (and any attachments to that memorandum) and the 53-page draft indictment for numerous federal EFTA00179725

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 28 of 64 offenses that the Government developed in this case and any similar successor or predecessor document; and (e) Any other prosecution memorandum regarding Jeffrey Epstein (and any documents attached to that memorandum) and all draft federal indictments that were prepared regarding Epstein. Please also provide all documents, correspondence, and other information regarding these prosecution memoranda and the draft federal indictments. 2. Throughout their pending summary judgment motion, the victims contend that they received only limited notifications from the Government (and, in particular, the U.S. Attorney's Office acting through FBI agents) about the plea negotiations that occurred with Jeffrey Epstein and the non-prosecution agreement that was ultimately reached. Please provide all documents, correspondence and other information regarding victim notifications in this case, including (but not limited to): a) All crime victims notifications (and draft notifications) sent to Jane Doe #1 and Jane Doe #2 and the other identified victims of Epstein's offenses; b) All correspondence, documents, and other information regarding negotiations between the Government and Epstein's defense attorneys concerning the extent and nature of notifications to be made to Epstein's victims; c) All correspondence, documents, and other information regarding discussions between the Government, the FBI, the Palm Beach Police Department, the Palm Beach County State Attorney's Office, and Epstein's defense attorneys concerning the extent and nature of notifications to be made to Epstein's victims; d) All correspondence, documents, and other information regarding "marching orders" that were given to FBI agents regarding the information that they could provide to the victims about the negotiations and the non-prosecution agreement; e) All correspondence, documents, and other information regarding information that could be given to attorneys for the victims about the non-prosecution agreement, including information about what could be told to Brad Edwards (counsel for Jane Doe #1 and Jane Doe #2) about the non-prosecution agreement; f) All correspondence, documents, and other information regarding Epstein's awareness that his victims (including Jane Doe #1 and Jane Doe #2) would not be notified of the non-prosecution agreement (and its ultimate presentation in court) or given a chance to confer regarding the plea negotiations he was conducting with the Government. 3. The victims allege in their pending summary judgment motion that the Government negotiated a non-prosecution agreement with Epstein and that among the subjects covered in that non-prosecution agreement was a confidentiality provision that precluded disclosing the agreement to them and to other victims. Please provide all draft plea agreements (both state and federal) and non-prosecution agreements prepared either by attorneys for the Government or by attorneys for Epstein, as well as any correspondence, documents or other information pertaining to these agreements and to any confidentiality provision in these agreements. Please indicate that date on which each of these proposed agreements was drafted and by whom. EFTA00179726

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 29 of 64 4. The victims allege in their pending summary judgment motion that the Government was interested in finding a place to conclude any plea agreement that would effectively keep Epstein's victims (most of whom resided in or about West Palm Beach) from learning what was happening through the press. Please provide all correspondence, documents, and other information pertaining to negotiations between the Government and Jeffrey Epstein concerning the court and/or location in which Jeffrey Epstein would enter any guilty plea (including in particular any negotiations concerning concluding the plea in Miami or other location outside of West Palm Beach). 5. The victims allege in their pending summary judgment motion that part of the plea negotiations with Epstein involved Epstein's efforts to make sure that the victims would be represented in civil cases against Epstein by someone who was not an experienced personal injury lawyer. Please provide all correspondence, documents, and other information pertaining to negotiations between the Government and Jeffrey Epstein regarding any legal representation of the victims in civil cases against Epstein, including any negotiations about what kinds of representation should be provided in a plea agreement or non-prosecution agreement. 6. The victims allege in their pending summary judgment that the Government wanted the non-prosecution agreement with Epstein concealed from public view because of the intense public criticism that would have resulted had the agreement been disclosed and/or the possibility that victims would have objected in court and convicted the judge not to accept the agreement. Please provide all correspondence, documents, and other information concerning the Government's and/or Epstein awareness or discussion of this possible public criticism and/or victim objections. 7. The victims allege in their pending summary judgment motion that the Government was aware that it potentially had obligations under the CVRA to notify the victims about the non- prosecution agreement and any related state court plea agreement. Please provide all correspondence, documents, and other information regarding the Government's awareness of its potential CVRA obligations in this case and regarding any discussions between the Government and Epstein concerning these CVRA obligations in this case. This should include any objections raised by Epstein to any notification of the victims (including Jane Doe #1 and Jane Doe #2) and any Government response to these objections. This should also include any correspondence and information about whether the CVRA applied to the victims. 8. The victims allege in their pending summary judgment motion that, after Epstein signed the non-prosecution agreement, his performance was delayed while he used his significant social and political connections to lobby the Justice Department to obtain a more favorable plea deal (including lobbying components of the Justice Department in Washington, D.C., including the Child Exploitation Obscenity Section). Please provide all correspondence, documents, and other information regarding Epstein's lobbying efforts to persuade the Government to give him a more favorable plea arrangement and/or non-prosecution agreement, including efforts by former President Bill Clinton, Andrew Albert Christian Edward (a/k/a Prince Andrew, Duke of York), Harvard Law Professor Alan Dershowitz, Ken Starr, Lillian Sanchez, Jay Lefkowitz, and Roy Black on his behalf. EFTA00179727

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 30 of 64 9. On January 10, 2008, Jane Doe #1 and Jane Doe #2 received letters from the FBI advising them that "this case is currently under investigation." Please provide all documents, correspondence, and other information relating to those representations being made by the FBI to Jane Doe #1 and Jane Doe #2, including all information about whether the FBI was aware of the non-prosecution agreement at that time and about whether Epstein was aware of the notifications being made to the victims. 10. In their pending summary judgment motion, the victims have alleged that the FBI was led to believe that their investigation of Epstein was going to produce a federal criminal prosecution and that the FBI was also misled by the U.S. Attorney's office about the status of the case. Please provide all documents, correspondence, and other information relating to these allegations, including: a) All documents, correspondence, and other information relating to discussions between the U.S. Attorney's Office and the FBI concerning the status of the investigation and the plea discussions with Epstein, as well as what kind of charges would appropriately be filed against Epstein; b) All documents, correspondence, and other information relating to the U.S. Attorney's Office's representations to the FBI and any other state or local law enforcement agency about how this case was being handled; and c) All documents, correspondence, and other information relating to whether the FBI would support the position of the U.S. Attorney's Office that it has not violated the rights of Epstein's victims in this case. 11.1n their pending summary judgment motion, the victims have alleged that they had various meetings with Government prosecutors and/or agents (including FBI agents). Related to these meetings, they also allege that in mid-June 2008, their attorney (Bradley J. Edwards) discussed with an AUSA involved in the case the need for filing federal charges and that the AUSA asked the attorney to send a letter about why such charges should be filed without disclosing the existence of a previously-signed non-prosecution agreement. The victims further allege that on about July 3, 2008, their attorney sent a letter urging the filing of federal charges against Epstein. Please provide all documents, correspondence, and other information regarding these meetings with the victims and their legal counsel, including meetings with the victims on October 26, 2007, and January 31, 2008, and the contact with their legal counsel in mid-June 2008. Please also provide all documents, correspondence, and other information related to contacts between the Government and the National Crime Victim's Law Institute (NCVLI) concerning possible legal representation or other assistance to the victims by NCVLI. 12. In their pending summary judgment motion, the victims allege that in mid-June 2008, their attorney (Bradley J. Edwards) discussed with an AUSA involved in the case the need for filing federal charges and that the AUSA asked the attorney to send a letter about why such charges should be filed without disclosing the existence of the non-prosecution agreement. The victims further allege that on about July 3, 2008, their attorney sent a letter urging the filing of federal charges against Epstein. Please provide all documents, correspondence, and other information regarding these contacts, including e-mails and correspondence generated as a result of the attorney's inquiry and any action that was taken in response to the letter that he sent. EFTA00179728

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 31 of 64 13. In their pending summary judgment motion, the victims allege that on or about June 27, 2008, the Government learned that Epstein would be entering his plea to state charges on about June 30, 2008. Please provide all documents, correspondence, and information regarding: a) How the Government Office learned that the plea was going to be entered; b) How the Government notified victims about the entry of the guilty plea; and c) The contents of the notifications given to the victims about the entry of the guilty, including whether the victims were informed about the non-prosecution agreement and about whether the entry of this plea would preclude prosecution of crimes Epstein had committed against them. 14. In their pending summary judgment motion, the victims have alleged that the Government and Epstein worked together to keep the existence of the non-prosecution agreement secret, including declining comment about the existence of such an agreement when asked about it when his guilty plea in state court became public knowledge. Please provide all documents, correspondence, and information about the Government's and Epstein's efforts to keep the existence of the non-prosecution agreement secret, including all e-mails and correspondence about "declining comment" or similar devices to keep the non-prosecution agreement secret. 15. In their pending summary judgment motion, the victims allege that at all materials times, it would have been practical and feasible for the Government to have kept the victims informed about the discussions concerning the non-prosecution agreement. The victims further allege that on about July 9, 2008, the U.S. Attorney's Office provided notice to Jane Doe #1 of some of the terms of the agreement between it and Jeffrey Epstein. The victims also received a "corrected" notification letter on about September 3, 2008. Please provide all documents, correspondence, and other information about these notifications, including: a) any information about whether these notifications should or should not include some mention of the non-prosecution agreement; b) any information about the contents of these notifications; c) any communications between the Government and Epstein's counsel regarding what the notifications should contain, including any communication on or about July 9, 2008, objecting to parts of the draft; d) My communications between the Government and Epstein's counsel about which parts of the non-prosecution agreement were operative (including whether Part 3 was operative); e) Any communications between the Government and Epstein's counsel regarding the September 3, 2008, corrected notification letter; and f) any documents, correspondence, and other information regarding the practicality and feasibility of providing notice to the victims of the existence of the agreement, which shall include any correspondence related to meeting with the victims or notifying them in any way of the non-prosecution agreement. 16. In their pending summary judgment motion, the victims allege that one of the senior prosecutors in the U.S. Attorney's Office joined Epstein's payroll shortly after important decisions were made limiting Epstein's criminal liability — and improperly represented people close to Epstein. In light of this fact, the peculiar nature of the non-prosecution agreement EFTA00179729

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 32 of 64 reached in this case, and other information in the possession of the victims, it is also possible that other improper relationships exist between Government agents and Epstein. Please provide any documents, correspondence, and other information regarding the possibility of any improper relationship, including: a) Attorney Bruce Reinhart's involvement in and/or awareness of any aspect of the Government's criminal investigation and/or possible prosecution/non-prosecution of Epstein; b) Attorney Bruce Reinhart's involvement in and/or awareness of the Government's witness, subject, or tar et o Ghislaine Maxwell, ▪ Investigation Includi Larry Mo iso i 1 ogers, r lam Hammond, and Robert Roxburgh; c) All documents, correspondence, and other information reflecting telephone calls (including telephone logs and telephone billing statements) made by or received by Reinhart from Jeffrey Epstein, the Florida Science Foundation, Jack Goldberger, Alan Dersowitz, Roy Black, Ken Starr, Lillian Sanchez, and any other person involved with the criminal defense of Jeffrey Epstein, including telephone calls to and from Jack Goldberger and the Florida Science Foundation; d) All documents, correspondence, and other information (including, for example, e- mails) that red to, or sent by Reinhart in which the word "Epstein," " "Morrison," "Visoki," "Rogers," "Hammond," Roxburgh,' r afana, " "Florida SS Foundation," "Starr," "Black," "Goldberger," "Jeffrey," "Australian,"' "Sanchez," "358 El Brillo Way" appears and which are connected to or related to Jeffrey Epstein, Jack Goldberger, or the Jeffrey Epstein investigation or prosecution; e) All documents, correspondence, and other information (including for example e- mails) of a similar nature that indicate that my other Government prosecutor has represented (or discussed representing) a person or entity related to Jeffrey Epstein or has received business or funds from a person or entity related to Jeffrey Epstein; f) All documents, correspondence, and other information that indicate or suggest that any Government prosecutor or investigator (including state and local prosecutor or investigator) has had any form of business, social, personal, or other relationship with Jeffrey Epstein or a person or entity related to Jeffrey Epstein; and g) All documents, correspondence, and other information that indicate or suggest that my Government prosecutor or investigator (including state and local prosecutor or investigator) would receive anything of value, directly or indirectly from Jeffrey Epstein or a person or entity related to Jeffrey Epstein (including any charitable contributions to be made by Epstein to any entity). 17. In December 2010, the victims sent a letter to the U.S. Attorney's Office for the Southern District of Florida, requesting that the Office investigate whether "improper influences" were brought to bear during the negotiations involving the possible prosecution (and ultimately the non-prosecution) of Jeffrey Epstein. That letter led to a reference of the matter to the Office of EFTA00179730

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 33 of 64 Professional Responsibility (OPR) in the Justice Department in Washington, D.C., which began some kind of an inquiry/investigation. Please provide: a) All documents, correspondence, and other information collected by the Office of Professional Responsibility (OPR) and any other component of the Justice Department (including the FBI) in response to the victims' letter; b) All documents, correspondence, witness statements, and other information collected as part of OPR's inquiry/investigation; c) All documents, correspondence, witness statements and other information collected as part of any criminal inquiry/investigation that was initiated as a result of that letter, including any inquiry/investigation into criminal conflict of interest violations (such as 18 U.S.C. § 205 and § 207) d) All documents, correspondence, witness statements, and other information collected by any federal investigative agency that was triggered by OPR's inquiry/investigation, including any FBI inquiry/investigation regarding any improper influences or criminal or ethical violations that may have been committed by government attorneys during the handling of the Epstein investigation and/or prosecution; e) Any documents, correspondence, and other information regarding the accuracy or inaccuracy of Bruce Reinhart's sworn statements (found in DE 79-1 at p. 31) that he "did not participate in any way in the Office's investigation of Epstein;" that he "was not involved in any of the Office's decisionmaking with regard to the Epstein matter;" and that he "never learned any confidential, non-public information about the Epstein matter;" f) Any documents, correspondence, or other information regarding the circumstances that lead OPR to send a letter to the victims on May 6, 2011, indicating that they would not provide any further assistance to the victims in connection with their allegations that improper influences were brought to bear on the Epstein case; g) Any document, correspondence, e-mail, memoranda, or other information prepared by OPR, the FBI, or other Justice Department Component as a result of or following up on the victims' December 2010 letter concerning the Epstein case; and h) Any documents, correspondence, or other information that OPR has collected or obtained regarding the Epstein investigation and/or prosecution. 18. At a couple points during the prosecution of this action, including in approximately December 2010 and most recently after the August 2011 hearing, the Justice Department in Washington, D.C., discussed or determined that the U.S. Attorney's Office for the Southern District of Florida (USAO SDFL) was "conflicted out", or may be conflicted out, of handling various issues related to the Epstein case because it suffered from a conflict of interest. The Justice Department accordingly sent various issues related to the Epstein case (and, on information and belief, issues related to Jane Doe #1 and Jane Doe #2) to the Department of Justice and to a United States Attorney's Office in another District. Please provide all documents, correspondence, and other information regarding the potential conflicts of interest that the Justice Department discussed or determined existed for the USAO SDFL, as well as any referral that was made to Main Justice or to any other District, including any documents that EFTA00179731

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 34 of 64 were transmitted to any other District regarding the conflict and regarding what was to be investigated. 19. In March 2011, former U.S. Attorney Alexander Acosta sent a three-page letter to the news media in which he claimed that when Government attorneys began investigating Epstein, Epstein launched "a yearlong assault on the prosecution and the prosecutors." Shortly thereafter, Jeffrey Epstein's defense attorney Roy Black sent a responsive letter to Alexander Acost's letter to the news media in which he claimed that he did not pry into the personal lives of prosecutors but merely pointed out misconduct and over-reaching by certain people involved in the Epstein investigation. Please provide all documents, correspondence and other information that supports or contradicts Acosta's allegations in his letter, including any information that the Justice Department received from Epstein attacking the prosecutors and investigators working on the case. Please also provides all documents, correspondence, information about misconduct and over-reaching that was provided by Black and that the Government found that supported or contradicted such allegations. 20. In their pending summary judgment motion, the victims have alleged that Epstein's guilty plea to state charges was intended to be the consummation of a non-prosecution agreement that barred prosecution of federal offenses committed against them. They have further alleged that Epstein entered such a guilty plea on or about June 30, 2008. Please provide all documents, correspondence, and other information between the Government and state and local prosecutors and police agencies (including The Palm Beach Police Department and Palm Beach State Attorney's Office) regarding the Epstein investigation and ultimate Epstein plea. 21. In their pending summary judgment motion, the victims have alleged that correspondence in the possession of the Government will support their claims. Please provide all documents, correspondence, and other information between Government attomeys/officials (including both federal and state prosecutors) and attorneys for Jeffrey Epstein (or non-attorney acting on Epstein's behalf) relating to (I) negotiations involving the possible prosecution (and ultimately the non-prosecution) by federal or state agencies for sex offenses, including sex offenses committed against Jane Doe #1 and Jane Doe #2, (2) Epstein's entry of state guilty pleas for related sex offenses; (3) a non-prosecution agreement entered into between Epstein and the Government that barred his prosecution for offenses committed against Jane Doe #1 and Jane Doe #2; (4) the fulfillment of Epstein's and/or the Government's obligations under the non- prosecution agreement and/or the state guilty pleas Epstein entered; (5) any work release or other conditional release of Epstein from confinement; (6) any designation of Epstein as a sex offender or restrictions on him contacting victims of his offenses (including Jane Doe #1 and Jane Doc #2); and (7) any termination of supervision or parole of Epstein. This information should include unredacted c-mails, letters, and correspondence of any type between government prosecutors working on the case (including, but not limited to, federal prosecutors Alexander Acosta, Jeffrey H. Sloman, Matt Menchel, Andy Lourie, Ann Marie Villafana, Dexter Lee, and Bruce Reinhart and state prosecutors Dahlia Weiss, Lana Belolovek, and others involved in the Epstein investigation) and defense attorneys representing Epstein (including, but not limited to, Roy Black, Jay Lefkowitz, Jack Goldberger, Martin Weinberg, Gerald Lefcourt, Michael Tien, Guy Lewis, Lilly Ann Sanchez, Ken Starr, Alan Dershowitz) and agents acting in support of Epstein (including, but not limited to former President Bill Clinton and Andrew Albert Christian Edward EFTA00179732

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 35 of 64 (a/k/a Prince Andrew, Duke of York). This should also include letters of recommendation or similar communications submitted to any Government official vouching for or providing support for Jeffrey Epstein. 22. As you know, throughout their pending summary judgment motion, the victims have alleged that they were not properly notified of plea negotiations with Jeffrey Epstein and were denied their right to confer by the Government and that instead the Government gave Epstein generous concessions through the plea negotiations. Please provide any documents, correspondence and other information that reflects or discusses any consideration of any type that Epstein had previously provided or offered to provide to the Government (or any individual within the Government, in either his official or private capacity) or any person previously employed by the Government and involved in the Epstein investigation or prosecution. The documents, correspondence, and other information should include any information discussing: (a) Any donation or offer to donate, directly or indirectly, either funds, services, or any other valuable consideration to any person or entity; (b) My offer to assist, directly or indirectly, any person to obtain employment, business opportunities, business clients, real estate, office properties; (c) Any offer to assist the Government or law enforcement agencies in the investigation or prosecution of any federal or state criminal offense; (d) My consideration that Epstein had provided to Government or law enforcement agencies in the past; and (e) Any other consideration of any type that Epstein offered to provide or had provided in the past that could provide a basis for the Government extending Epstein a more generous or lenient plea bargain or non-prosecution agreement than would be received by any other similarly situated child abuse suspect. 23. The Crime Victims' Rights Act, 18 U.S.C. § 3771(cX1), requires the Government to use its "best efforts" to protect the rights of crime victims. Please provide all documents, correspondence, and other information that will assist Jane Doe #1 and Jane Doe #2 in protecting their rights under the CVRA, including all documents, correspondence, and other information that the Government previously identified as being helpful to the victims but refused to provide based on its legal interpretation (now rejected by the Court) that the CVRA did not apply to this case because no indictment was filed. 24. In the course of its investigation of Epstein and negotiations with Epstein, the Government (i.e., federal investigators and prosecutors) shared documents, correspondence, and information with other persons outside the federal government, including state and local prosecuting and law enforcement agencies, prosecuting and law enforcement agencies in other countries, Epstein's legal counsel, legal counsel for crime victims, and other entities. Please provide all documents, correspondence, and other information that the Government shared with any entity or person outside the federal government, including all correspondence (including e- mails) with those entities or persons. 25. After the victims had made extensive efforts to try and reach a stipulated set of facts in this case, in March 2011 the Government refused to negotiate about such facts. Accordingly, at that time the victims filed various motions to obtain evidence in this case and, at the same time, EFTA00179733

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 36 of 64 the victims voluntarily made all initial disclosures on their part that are required by Federal Rule of Civil Procedure 26(a)(1). Please provide all initial disclosures required by the Federal Rules of Civil Procedure, including all disclosures required by Rule 26(aXI). DEFINITIONS For the purpose of construing the foregoing discvery requests, the following terms are defined: The term "documents" means and includes, without limitation, all writings of any kind, including the originals and all non-identical copies or drafts, whether different from the original by reason of any notation made on such copy or draft or otherwise including, without limitation, correspondence, memoranda, notes, diaries, statistics, letters, e-mails, electronic computer files, telegrams, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books, prospectuses, interoffice communications, offers, notations of any sort of conversation, telephone calls, meetings or other communications, bulletins, printed matter, computer print-outs, teletypes, facsimiles, invoices, work sheets and all drafts, alterations, modifications, changes, and amendments of any of the foregoing, graphic or aural writs, records or representations of any kind including, without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures; and electronic, mechanical or electric records or representations of any kind including, without limitation, tapes, cassettes and disc recordings, and writings and printed material of every kind. The term "correspondence" means any tangible object that conveys information or memorializes information that was conveyed in tangible or oral form including, but not limited to, writings, letters, memoranda, reports, notes, e-mails, telephone logs, telephone billing information, telephone recordings, and interoffice communications. The term "Epstein's victims" means any person that the Government identified as a possible victim of a sex offense committed by Jeffrey Epstein, including Jane Doe #1, Jane Doe #2, all victims identified in attachment to the non-prosecution agreement entered into by Epstein, and another person that the Government investigated as a possible victim of Epstein's sex offenses. The term "Government" means the federal government, including all employees of and components of the United States Department of Justice (such as, the Office of the Attorney General, the Office of the Deputy Attorney General, the Criminal Divisions, the Office of Professional Responsibility, the Child Exploitation and Obscenity Section, the U.S. Attorney's Offices for the Southern District and Middle District of Florida, and the Federal Bureau of Investigation) and other federal government agencies with law enforcement responsibilities related to the Epstein case (such as the Internal Revenue Service). This request for production seeks all documents, correspondence, and other information held by all of these entities, including all employees of and components of the Justice Department that worked on or were in any way involved the Epstein investigation and/or that possess information relevant to the victims' claims. EFTA00179734

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 37 of 64 The term "including" means containing within the request, but not limiting the request. The term "witness statement" means any document or other recording in any form (including oral form) reflecting, recording, or otherwise memorializing a statement made or information conveyed by a potential witness, including for example FBI 302's. The term includes information collected by any law enforcement, prosecuting or government agency, including all federal, state, and local law enforcement agencies located in Washington, D.C., or Florida. NO GRAND JURY TRANSCRIPTS SOUGHT If any of the foregoing requests cover grand jury transcripts, do not provide the grand jury transcript. If any of the foregoing requests include documents that quote directly from a grand jury transcript, please redact that particular quotation. PRIVILEGE LOG If you believe that any document, correspondence, or other information requested in this request is subject to a privilege and if you intend to assert that privilege, please provide a "privilege log" consistent with Local Rule 26.1(g), including a description a document that is consistent with Local Rule 26.1(g)(3XB). Your privilege log should include the type of document, general subject matter of the document, date of the document, and author and addressee of the document or correspondence. REDUCING UNDUE BURDEN If you believe that complying with any of the foregoing requests would be unduly burdensome, please contact victims counsel — Bradley J. Edwards — to discuss ways to reduce any such burden. DATED: October 3. 2011 Respectfully Submitted, s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 Florida Bar No.: 542075 E-mail: brad(4)pathtojustice.com EFTA00179735

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 38 of 64 and Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: [email protected] Attorneys for Jane Doe #1 and Jane Doe #2 CERTIFICATE OF SERVICE The foregoing document was served on October 3, 2011, on the following via US Mail and E-Mail Transmission: Dexter Lee A. Marie Villafafia Assistant U.S. Attorneys 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: [email protected] E-mail: ann.marie.c,[email protected] Attorneys for the Government Roy Black, Esq. Jackie Perczek, Esq. Black, Srebnick, Komspan & Stumpf, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, FL 33131 JIBlackaroyblack.com Attorneys for Proposed Intervenors Roy Black et al. Respectfully Submitted, S/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. EFTA00179736

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLED Docket DB/16/2013 Page 39 of 64 EXHIBIT 2 To Brad Edwards Affidavit EFTA00179737

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 40 of 64 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-110736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2, Plaintiffs r. UNITED STATES, Defendants JANE DOE #1 AND JANE DOE #2'S SUPPLEMENTALJtEOUEST FOR PRODUCTION TO THE GOVERNMENT REGARDING NEW INFORMATION CONCERNING INVESTIGATION OF HANDLING OF EPSTEIN NON- PROSECUTION AGREEMENT COME NOW Jane Doe #I and Jane Doe #2 ("the victims), by and through undersigned counsel, and request the defendant United States (hereinafter "the Government") to produce the original or best copy of the items listed herein below for inspection and/or copying, pursuant to the Court's Order (DE 99) directing discovery in this case, the Court's Order denying the Government's motion to dismiss and lifting stay of discovery (DE 189), and the Court's Omnibus Order (DE 190): BACKGROUND As the Government will recall, the victims have repeatedly asked the Government to stipulate to undisputed facts in this case. The Government has declined. Accordingly, the victims filed their Motion for Finding of Violations of the Crime Victims' Rights Act and Request for a Hearing on Appropriate Remedies (DE 48) (the victims' "summary judgment motion") along with a Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts (DE 49). EFTA00179738

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 41 of 64 On September 26, 2011, the Court denied the victims' motion to have their facts accepted (DE 99 at II). At the same time, however, the Court has ordered discovery to develop the factual record concerning the summary judgment motion (DE 99 at I I). The Court reserved ruling on the victims' motion for an order directing the Government not to suppress relevant evidence (DE 99 at 11). On September 28, 2011, the victims requested that the Government voluntarily provide documents concerning this case. The Government declined to provide even a single document. On October 3, 2011, the victims sent requests for production of documents relevant to this case. On November 8, 2011, the same day that the production of this discovery was due, rather than produce a single item of discovery or stipulate to a single fact, the Government filed a motion to dismiss the victims' case. The Government also filed an accompanying motion for a stay in this case. On November 8, 2011, the Government filed an ex parte, sealed motion to stay further discovery in this case. (DE 121). On November 9, 2011, the Court granted an cx parte, sealed order to stay. (DE 123). On December 5, 2011, the victims filed a response to Government's motion to stay. The victims strenuously objected to the Government's approach, alleging specifically that "delay appears to be the Government's motivation for filing the motion to dismiss." DE 129 at 2. The victims went on to recount the fact that the Government had waited three years to file a motion to dismiss, concluding that "as a practical matter, the Government's motion has had the desired effect of delay: While its motion remains pending, the victims have been effectively denied any ability to obtain discovery from the Government." DE 129 at 2-3. The victims also filed a EFTA00179739

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 42 of 64 protection motion to compel (DE 130) asking that the Court direct the Government to produce the requested materials. On January 24, 2012, the Government filed a reply in support of its motion to stay. DE 140. In that reply, the Government represented that it would voluntarily be providing information to the victims: "[Tjhe United States has agreed to provide some information to [the victims] even during the pendency of the stay and is undertaking a search for that information." DE 140 at 4. Contrary to that representation, however, over the next seventeen months, the Government did not provide any information to the victims. A year after the Government's motion to dismiss, on December 6, 2012, the victims filed a Motion for a Prompt Ruling Denying the Government's Motion for a Stay (DE 179). The motion explained that it had been more than a year since the Government had filed its motion for a stay and that the Government's refusal to produce any information continues to effective block the victims from learning what happened during the Government's plea negotiations with the man who sexually abused them. The Government filed a response in opposition to that motion (DE 182). On February 25, 2013, counsel for the victims sent a request to the Government that, in view of that fact that its requested stay had never been granted, it should begin fulfilling its court-ordered discovery obligations: The victims believe that in view of fact that it has been more than fifteen months since the Government filed its motion for a stay of discovery and yet the Court has not granted that motion, the Court's discovery order is in effect and controlling. Accordingly, the victims respectfully request that by March 8, 2013, the Government produce all of the materials which is covered by the victims' discovery requests. If the Government has not produced those materials by March 8, 2013, the victims may be forced to seek the intervention of the Court to order the Government to follow its obligations. If you would like to discuss this further, please feel free to set up a time where we can talk to you over the phone about all this. We are happy to work EFTA00179740

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 43 of 64 with you to try and minimize any unnecessary burden from your discovery obligations. E-mail from Paul G. Cassell & Bradley J. Edwards to Dexter Lee, et al., Counsel for the Government (February 25, 2013). The Government ignored the e-mail and did not respond in any way. Accordingly, in view of the Government recalcitrance and refusal to even discuss its discovery obligations, on March 14, 2013, the victims filed a motion to compel production of discovery materials. The Government did not respond to this motion. On June 1, 2013, the Court denied the Government's motion to dismiss. DE 189. That denial also lifted stay of discovery proceedings. DE 189 at 14 ("The stay of discovery pending ruling on the Government's motion to dismiss entered on November 8, 2011 [DE# 123] is also lifted."). The Court also entered an Omnibus Order (DE 190) that, among other things, granted the victim motion to compel (DE 130). SUPPLEMENTAL DISCOVERY REQUEST The victims now request one specific item of supplemental discovery relating to information that, in large measure, has come into existence since they filed the first request for production of documents on October 3, 2011: Jane Doe #1 and Jane Doe #2 have asked the Government to investigate their allegations that the U.S. Attorney's Office for the Southern District of Florida entered into a non-prosecution agreement with Jeffrey Epstein for sexual offenses committed against them and other victims based on considerations apart from the merits of the criminal case and also that violations of criminal law, rules of ethics, Justice Department policies (including policies on crime victims' rights), and the Crime Victims Rights Act occurred during the negotiations leading up to and surrounding the entry of the non-prosecution agreement. Please provide any information that the Government has developed concerning or relating to those allegations and the handling of the negotiations and consummation of the non-prosecution agreement, including any information developed by the Justice Department's Office of Professional Responsibility (0PR), the Federal Bureau of Investigation or other federal investigative entity, and any grand jury investigating these (or releated) allegations, including any grand jury meeting in the Southern District of Florida, the Middle District of Florida, the District of EFTA00179741

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 44 of 64 New Jersey, and/or the District of Columbia. For this one discovery request only, please include all relevant grand jury transcripts and evidence collected by the grand jury. DEFINITIONS For the purpose of construing the foregoing discovery requests, the following terms are defined: The term "documents" means and includes, without limitation, all writings of any kind, including the originals and all non-identical copies or drafts, whether different from the original by reason of any notation made on such copy or draft or otherwise including, without limitation, correspondence, memoranda, notes, diaries, statistics, letters, e-mails, electronic computer files, telegrams, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books, prospectuses, interoffice communications, offers, notations of any sort of conversation, telephone calls, meetings or other communications, bulletins, printed matter, computer print-outs, teletypes, facsimiles, invoices, work sheets and all drafts, alterations, modifications, changes, and amendments of any of the foregoing, graphic or aural writs, records or representations of any kind including, without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures; and electronic, mechanical or electric records or representations of any kind including, without limitation, tapes, cassettes and disc recordings, and writings and printed material of every kind. The term "correspondence" means any tangible object that conveys information or memorializes information that was conveyed in tangible or oral form including, but not limited to, writings, letters, memoranda, reports, notes, e-mails, telephone logs, telephone billing information, telephone recordings, and interoffice communications. The term "Epstein's victims" means any person that the Government identified as a possible victim of a sex offense committed by Jeffrey Epstein, including Jane Doe #1, Jane Doe #2, all victims identified in attachment to the non-prosecution agreement entered into by Epstein, and another person that the Government investigated as a possible victim of Epstein's sex offenses. The term "Government" means the federal government, including all employees of and components of the United States Department of Justice (such as, the Office of the Attorney General, the Office of the Deputy Attorney General, the Criminal Divisions, the Office of Professional Responsibility, the Child Exploitation and Obscenity Section, the U.S. Attorney's Offices for the Southern District and Middle District of Florida, and the Federal Bureau of Investigation) and other federal government agencies with law enforcement responsibilities related to the Epstein case (such as the Internal Revenue Service). This request for production seeks all documents, correspondence, and other information held by all of these entities, including all employees of and components of the Justice Department that worked on or were in any way involved the Epstein investigation and/or that possess information relevant to the victims' claims. The term "including" means containing within the request, but not limiting the request. EFTA00179742

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 45 of 64 The term "witness statement" means any document or other recording in any form (including oral form) reflecting, recording, or otherwise memorializing a statement made or information conveyed by a potential witness, including for example FBI 302's. The term includes information collected by any law enforcement, prosecuting or government agency, including all federal, state, and local law enforcement agencies located in Washington, D.C., or Florida. PRIVILEGE LOG If you believe that any document, correspondence, or other information requested in this request is subject to a privilege and if you intend to assert that privilege, please provide a "privilege log" consistent with Local Rule 26.1(g), including a description a document that is consistent with Local Rule 26.1(g)(3XB). Your privilege log should include the type of document, general subject matter of the document, date of the document, and author and addressee of the document or correspondence. REDUCING UNDUE BURDEN If you believe that complying with any of the foregoing requests would be unduly burdensome, please contact victims counsel — Bradley J. Edwards — to discuss ways to reduce any such burden. DATED: June 24, 2013 Respectfully Submitted, s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 Florida Bar No.: 542075 E-mail: [email protected] and Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. EFTA00179743

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 46 of 64 Salt Lake City, UT 841 (2 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: eassellnalaw.utah.edu Attorneys for Janc Doe #1 and Jane Doe #2 EFTA00179744

Case 9:08,v-807364.M Document 226-1 Entered on ELSE Docket 08116/2013 Page 47 of EXHIBIT 3 To Brad Edwards Affidavit EFTA00179745

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 48 of 64 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2, Plaintiffs UNITED STATES, Defendants JANE DOE #1 AND JANE DOE #2'S FIRST REQUEST FOR ADMISSIONS TO THE GOVERNMENT REGARDING QUESTIONS RELEVANT TO THEIR PENDING ACTION CONCERNING THE CRIME VICTIMS RIGHTS ACT COME NOW Jane Doe #1 and Jane Doe #2 ("the victims"), by and through undersigned counsel, and request the defendant United States (hereinafter "the Government") to admit or deny the following facts: BACKGROUND As the Government will recall, the victims have asked the Government to stipulate to undisputed facts in this case. The Government has declined. Accordingly, the victims filed their Motion for Finding of Violations of the Crime Victims' Rights Act and Request for a Hearing on Appropriate Remedies (DE 48) (the victims' "summary judgment motion") along with a Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts (DE 49). On September 26, 2011, the Court denied the victims' motion to have their facts accepted (DE 99 at 11). At the same time, however, the Court has ordered discovery to develop the factual record concerning the summary judgment motion (DE 99 at 11). The Court reserved EFTA00179746

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 49 of 64 ruling on the victims' motion for an order directing the Government not to suppress relevant evidence (DE 99 at 11). The Court allowed the victims to propound requests for admission to the Government. DISCOVERY REOUESTED The numbered requests for admissions below should all be construed in light of the definitions of terms provided at the end of the requests. Where the request for admission has separate, lettered sub-parts, please admit or deny each separate sub-part: I. The FBI and the U.S. Attorney's Office for the Southern District of Florida's investigation into Jeffrey Epstein developed a case for a federal prosecution against Epstein for many federal sex offenses. UNITED STATES RESPONSE: 1. The government admits that the FBI and the U.S. Attorney's Office for the Southern District of Florida ("USAO") conducted an investigation into Jeffrey Epstein ("Epstein") and developed evidence and information in contemplation of a potential federal prosecution against Epstein for many federal sex offenses. Except as otherwise admitted above, the government denies Request No. 1. * The government's response is confined to Request No. 1 through Request No. 26 in the "Discovery Requested" section of the Request for Admissions and does not intend to respond to assertions in any other section of the Request for Admissions (including the "Background" section), none of which appear to separately state any matter calling for an admission. Nonetheless, the government denies the assertion that the government has declined the request of Jane Doe #1 and Jane Doe #2 to stipulate to undisputed facts in this case. EFTA00179747

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 50 of 64 2. Regarding notifications provided to victims of Jeffrey Epstein's sexual abuse: (a) The U.S. Attorney's Office negotiated with Jeffrey Epstein's defense attorneys concerning the notifications to be provided to victims of Epstein's abuse; UNITED STATES RESPONSE: 2. (a) The government admits that, after Epstein's attorneys learned of the notification that the government planned to provide to Jane Doe #2, who claimed that she was not a victim, Epstein's attorneys contacted the USAO and objected to the procedures for notification and the legal bases therefor. The government further admits that the USAO considered those objections when evaluating what notification to provide to victims. Except as otherwise admitted above, the government denies Request No. 2(a). (b) It is not standard practice for the U.S. Attorney's Office to negotiate with defense attorneys about the extent of notifications provided to crime victims; UNITED STATES RESPONSE: (b) Admitted. (c) As a result of those negotiations or requests received from Epstein, the U.S. Attorney's Office stopped making notifications to some crime victims; UNITED STATES RESPONSE: (c) The government admits that, as a result of objections lodged by Epstein's attorneys, the government reevaluated the notifications that it had intended to provide to victims and, as a result of that reevaluation, the USAO altered the scope, nature, and timing of notifications that it had contemplated providing to victims. With regard to Jane Doe #2, the government further admits that, as a result of representations made by Jane Doe #2 that she was not a victim and objections lodged by Epstein's attorneys, the USAO stopped making notifications to Jane Doe #2. Except as otherwise admitted above, the government denies Request No. 2(c). EFTA00179748

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 51 of 64 (d) The language used in the notifications to Jane Doe #1 and Jane Doe #2 were affected by the negotiations with Epstein's defense lawyers; UNITED STATES RESPONSE: (d) The government admits that, after the USAO received objections to victim notifications from Epstein's counsel and reevaluated its victim notification obligations, the USAO altered the language that was ultimately contained in the July 9, 2008 notification letter to Jane Doe #1 in care of Bradley Edwards. Except as otherwise admitted above, the government denies Request No. 2(d). (e) At least in part as a result of the negotiations, Jane Doe #1 and Jane Doe #2 were not told that the U.S. Attorney's Office had entered into a non-prosecution agreement with Epstein until after the agreement was executed. UNITED STATES RESPONSE: (e) The government admits that, at least in part as a result of objections lodged by Epstein's lawyers to victim notifications, the USAO reevaluated its obligations to provide notifications to victims, and Jane Doe #1 was thus not told that the USAO had entered into a non-prosecution agreement with Epstein until after the agreement was signed. The government further admits that Jane Doe #2 was not told that the USAO had entered into a non-prosecution agreement with Epstein until after the agreement was signed, but denies that the USAO did not inform Jane Doc #2 as a result of any negotiations involving Epstein or any objections lodged by Epstein's lawyers; the USAO did not consider Jane Doe #2 a victim after she informed the USAO and the FBI that she was not a victim of any offense committed by Epstein, and, as a result, the USAO did not consider informing Jane Doe #2 about the non-prosecution agreement. Except as otherwise admitted above, the government denies Request No. 2(c). 3. Because of a confidentiality provision in the non-prosecution agreement signed by the U.S. Attorney's Office, it would have been a breach of the agreement for the U.S. Attorney's Office to inform Jane Doe #1 and Jane Doe #2 of the existence of the terms of that non-prosecution agreement barring prosecution of certain sex offenses. UNITED STATES RESPONSE: 3. Denied. EFTA00179749

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 52 of 64 4. During its negotiations with Jeffrey Epstein's defense attorneys, the U.S. Attorney's Office was aware that publicly disclosing the non-prosecution agreement with Jeffrey Epstein would likely have led to public criticism of the agreement. UNITED STATES RESPONSE: 4. Denied. 5. During negotiations with Jeffrey Epstein regarding the non-prosecution agreement, it was the position of at least one experienced attorney within the U.S. Attorney's Office that the Crime Victims' Rights Act required notifications to the victims in this case. UNITED STATES RESPONSE: 5. The government admits that, during the negotiations with Jeffrey Epstein regarding the non-prosecution agreement, at least one experienced attorney within the USAO subscribed to the position that the CVRA required notifications to the victims in this case and that position was communicated to Epstein's counsel. To the extent that Request No. 5 seeks admissions regarding the positions held by attorneys within the USAO that were not communicated to non-government personnel regarding whether or not the CVRA ultimately required notifications to the victims in this case, the government objects to Request No. 5 as violative of the deliberative process privilege. 6. The Justice Department possesses documents, correspondence or other information reflecting contacts with the Department between May 2007 and September 2008 on behalf of Jeffrey Epstein by: UNITED STATES RESPONSE: (a) President Bill Clinton; Denied. (b) Andrew Albert Christian Edward (a/k/a Prince Andrew, Duke of York); Denied. (c) Harvard Law Professor Alan Dershowitz; Admitted (d) Ken Starr; Admitted. (e) Lillian Sanchez; Admitted to the extent that the reference to "Lillian Sanchez" was meant to refer to Lilly Ann Sanchez. (f) Jay Lelkowitz; Admitted and (g) Roy Black. Admitted EFTA00179750

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 53 of 64 7. On about January 10, 2008, when Jane Doe #1 and Jane Doe #2 were sent letters advising them that "this case is currently under investigation," the U.S. Attorney's Office had already entered into a non-prosecution agreement with Jeffrey Epstein. UNITED STATES RESPONSE: 7. The government admits that, on about January 10, 2008, when Jane Doe #1 and Jane Doe #2 were sent letters advising them that "this case is currently under investigation," the U.S. Attorney's Office had already signed a non-prosecution agreement with Jeffrey Epstein, but that, on that date, the non-prosecution agreement nonetheless remained in a state of some flux and was subject to being set aside as Epstein was challenging the propriety of the non-prosecution agreement and seeking further review from the Department of Justice. 8. In September 2007 when the U.S. Attorney's entered into the non-prosecution agreement with Epstein, it did not inform FBI agents of the details of the disposition of the case in the way that it ordinarily informed them of dispositions of other cases. UNITED STATES RESPONSE: Denied 9. With regard to the non-prosecution agreement between Epstein and the Government: (a) (b) Epstein insisted on, and the U.S. Attorney's Office agreed to, a provision in the non-prosecution agreement that made the agreement secret; UNITED STATES RESPONSE: (a) The government admits that, at Epstein's insistence, the USAO agreed to a provision in the non-prosecution agreement that provided as follows: "The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure." Except as otherwise admitted above, the government denies Request No. 9(a). In particular, the agreement stated: "The parties anticipate that this agreement will not be made part of any public record;" UNITED STATES RESPONSE: Admitted EFTA00179751

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 54 of 64 (c) By entering into such a confidentiality agreement, the U.S. Attorney's Office put itself in a position that conferring with the crime victims (including Jane Doe #1 and Jane Doe #2) about the non-prosecution agreement would violate certain terms of the agreement; UNITED STATES RESPONSE: Denied (d) Even notifying the victims about the agreement would have violated the confidentiality provision; and UNITED STATES RESPONSE: Denied (e) From September 24, 2007 through June 2008, the U.S Attorney's Office did not notify Jane Doe #1 and Jane Doe #2 of the existence of the non-prosecution agreement. UNITED STATES RESPONSE: (e) The government admits that, during the period from September 24, 2007 through June 2008, the USAO did not notify Jane Doe #2 of the existence of the non-prosecution agreement. The government further admits that, although FBI agents notified Jane Doe #1 of the existence and substance of the agreement at the request of the USAO on or about October 27, 2007, no employee of the USAO personally notified Jane Doe #1 of the existence of the non-prosecution agreement during the period from September 24, 2007 through June 2008. Except as otherwise admitted above, the government denies Request No. 9(e). 10. With regard to contact between the Government and the victims: (a) On about October 26, 2007, FBI agents met with Jane Doe #1; UNITED STATES RESPONSE: 10. (a) Admitted. Because Request No. 10 appears directed solely to the communica- tions between FBI agents and Jane Doe #1 during their meeting on or about October 26, 2007, the government responses to Requests No. 10(b) through 10(g) address only that meeting. (b) The agents explained that Epstein would plead guilty to state charges involving another victim, he would be required to register as a sex offender, and he had made certain concessions related to the payment of damages to the victims, including Jane Doe #1; EFTA00179752

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 55 of 64 UNITED STATES RESPONSE: (b) The government admits that, on or about October 26, 2007, FBI agents explained to Jane Doe #1 that Epstein would plead guilty to state charges for procuring minors to engage in prostitution; that Epstein would be required to register as a sex offender; that Jane Doe #1 would be entitled to seek damages from Epstein; and that, if she desired, Jane Doe #1 would be entitled to use the services of an attorney at no expense to her in seeking those damages from Epstein. The government denies that the FBI agents explained that the state charges "involvied) another victim." (c) During this meeting, the agents did not explain that an agreement had already been signed that precluded any prosecution of Epstein for federal crimes committed against Jane Doe #I; UNITED STATES RESPONSE: (c) The government denies that the FBI agents did not explain to Jane Doe #1 that an agreement had already been signed; denies that the FBI agents did not explain to Jane Doe #1 that the agreement resolved the investigation of the federal case involving Jane Doe #1; and denies that the FBI agents did not explain to Jane Doe #1 other terms of that agreement Except as otherwise admitted above, the government denies Request No. 10(c). (d) The agents could not have revealed this part of the non-prosecution agreement without violating the terms of the non-prosecution agreement; (e) (f) (g) UNITED STATES RESPONSE: Denied The agents themselves had not been informed of the existence of the provision in the non-prosecution agreement barring Epstein's prosecution for various federal crimes or sex offenses at that time; UNITED STATES RESPONSE: Denied Because the non-prosecution agreement had already been reached with Epstein, the agents made no attempt to secure Jane Doe #I's view on the proposed resolution of the case; and UNITED STATES RESPONSE: Denied The agents never explained that the non-prosecution agreement would ultimately bring to an end the federal investigation in the case. UNITED STATES RESPONSE: Denied EFTA00179753

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 56 of 64 11. On about November 29, 2007, the U.S. Attorney's Office sent a draft of a crime victim notification letter to Jay Lefkowitz, defense counsel for Jeffrey Epstein. The notification letter would have explained: "I am writing to inform you that the federal investigation of Jeffrey Epstein has been completed, and Mr. Epstein and the U.S. Attorney's Office have reached an agreement containing the following terms . . . ." Because of concerns from. Epstein's attorneys, the U.S. Attorney's Office never sent the proposed victim notification letter to the victims. UNITED STATES RESPONSE: 11. The government admits that, on or about November 28, 2007, A. Marie Villafafia of the USAO sent a draft of a crime victim notification letter to Jay Letkowitz, counsel for Jeffrey Epstein, and that the draft notification letter stated, in part: "I am writing to inform you that the federal investigation of Jeffrey Epstein has been completed, and Mr. Epstein and the U.S. Attorney's Office have reached an agreement containing the following terms . . . ." The government further admits that, in part as a result of objections lodged by Epstein's lawyers, the USAO reevaluated its obligations to provide notifications to victims, and, as a result of that reevaluation and other considerations and developments, the USAO never sent victims the draft notification letter that was sent to Jay Leflcowitz on or about November 28, 2007. Except as otherwise admitted above, the government denies Request No. 11. 12. On July 3, 2008, when Bradley J. Edwards was working on a letter to the U.S. Attorney's Office concerning the need to federally prosecute Epstein for sex offenses committed against Jane Doe #1 and Jane Doc #2, the U.S. Attorney's Office had already entered into a binding non-prosecution agreement with Jeffrey Epstein. UNITED STATES RESPONSE: 12. The government admits that, prior to July 3, 2008, the USAO had already entered a binding non-prosecution agreement with Jeffrey Epstein. The government is without knowledge of precisely when "Bradley J. Edwards was working on a letter to the U.S. Attorney's Office concerning the need to federally prosecute Epstein for sex offenses committed against Jane Doe #1 and Jane Doe #2," and, accordingly, the government denies the assertion that Edwards worked on that letter on July 3, 2008. Except as otherwise admitted above, the government denies Request No. 12. 13. When Jeffrey Epstein pled guilty to state charges on June 30, 2008, (a) Jane Doe #1 and Jane Doe #2 had not been informed by the U.S. Attorney's Office of the existence of the non-prosecution agreement. EFTA00179754

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 57 of 64 UNITED STATES RESPONSE: 13. (a) The government admits that, when Epstein pled guilty to state charges on June 30, 2008, Jane Doe #2 had not been informed by the USAO of the existence of the non-prosecution agreement. The government further admits that, although the USAO, through FBI agents, had notified Jane Doe #1 of the existence of the non-prosecution agreement prior to Epstein's June 30, 2008 guilty plea, no employee of the USAO had personally notified Jane Doe #1 at that time of the existence of the non-prosecution agreement. Except as otherwise admitted above, the government denies Request No. 13(a). (b) The U.S. Attorney's Office had not conferred with either Jane Doe #1 or Jane Doe #2 about the non-prosecution agreement; UNITED STATES RESPONSE: (b) The government denies that, by the time of Epstein's June 30, 2008 guilty plea, an attorney for the government working at the USAO had not already conferred with Jane Doe #1 and Jane Doe #2 about their opinions regarding how the federal investigation and potential prosecution of Epstein should proceed. The government admits that the USAO had not conferred with Jane Doe #2 about the non-prosecution agreement prior to Epstein's June 30, 2008 guilty plea. The government further admits that, although the USAO had communicated with Jane Doe #1 about the non-prosecution agreement through FBI agents prior to Epstein's June 30, 2008 guilty plea, no employee of the USAO had personally conferred with Jane Doe #1 about the non-prosecution agreement prior to Epstein's guilty plea. Except as othenvise admitted above, the government denies Request No. 13(b). (c) Epstein's defense attorneys were aware that the U.S. Attorney's Office had not conferred with Jane Doe #1 and Jane Doe #2 about the agreement; and UNITED STATES RESPONSE: (c) Although the government was aware that Jane Doe #2 had been represented by counsel paid for by Epstein, the government is unaware of the extent of Epstein's defense attorneys' awareness of the USAO's communications with Jane Doe #1 and Jane Doe #2 about the agreement, as described in the responses to Requests No. 13(a) and 13(b), and therefore can neither deny nor admit Request No. 13(c). Except as othenvise admitted above and in the responses to Requests No. 13(a) and 13(b), the government denies Request No. 13(c). EFTA00179755

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 58 of 64 (d) Epstein's defense attorneys had negotiated for a confidentiality provision in the non-prosecution agreement that barred conferring with victims about the agreement. UNITED STATES RESPONSE: (d) The government admits that Epstein's attorneys negotiated with the USAO for a provision in the non-prosecution agreement that ultimately provided as follows: "The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure." Except as otherwise admitted above, the government denies Request No. 13(d). 14. When Epstein was pleading guilty to the state charges discussed in the non-prosecution agreement, both the U.S. Attorney's Office and Epstein's defense attorneys were working to keep the existence of the non-prosecution agreement confidential. UNITED STATES RESPONSE: 14. The government admits that, when Epstein was pleading guilty to the state charges discussed in the non-prosecution agreement, the USAO and Epstein's defense attorneys sought to keep the document memorializing the non- prosecution agreement confidential, but denies that they sought at that time to keep the existence of the non-prosecution agreement confidential. Except as otherwise admitted above, the government denies Request No. 14. 15. Defense attorney Bruce E. Reinhart: (a) learned confidential, non-public information about the Epstein matter; UNITED STATES RESPONSE: 15. (a) The government admits that, while Bruce E. Reinhart was an Assistant U.S. Attorney, he learned confidential, non-public information about the Epstein matter. (b) discussed the Epstein matter with an attorney working on the case for the U.S. Attorney's Office; and UNITED STATES RESPONSE: (b) The government admits that, while Bruce E. Reinhart was an Assistant U.S. Attorney, he discussed the Epstein matter with another Assistant U.S. Attorney working on the Epstein matter. EFTA00179756

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 59 of 64 (c) was involved in decision-making with regard to the Epstein matter. UNITED STATES RESPONSE: Denied 16. The Government possesses information (including telephone logs and emails) reflecting contacts between Bruce E. Reinhart and persons/entities affiliated with Jeffrey Epstein (including Jeffrey Epstein, the Florida Science Foundation, Jack Goldberger, Harvard Law Professor Alan Dershowitz, Roy Black, Ken Starr, Lily Ann Sanchez) before Reinhart left the employment of the U.S. Attorney's Office. UNITED STATES RESPONSE: Admitted. 17. The Government possesses information (including telephone logs or emails) reflecting contacts between Bruce E. Reinhart and persons working at or for the Department of Justice or United States Attorney's Office that related to Jeffrey Epstein or the investigation into Jeffrey Epstein and other potential co-conspirators of Jeffrey Epstein. UNITED STATES RESPONSE: Admitted. 18. The government possesses, or has knowledge or information (including telephone logs or photographs or emails) reflecting improper communication or influence made or attempted with the Government, on Jeffrey Epstein's behalf by: (a) Guy Lewis UNITED STATES RESPONSE: Denied. (b) LilyAnn Sanchez UNITED STATES RESPONSE: Denied. 19. The government possesses, or has knowledge or information (including telephone logs, photographs, emails or statement(s) of other credible sources) about a personal or business relationship between Jeffrey Epstein and U.S. Attorneys and/or Assistant US Attorneys. UNITED STATES RESPONSE: 19. To the extent that Request No. 19 is directed to the business or personal relationships of the 93 U.S. Attorneys and over 5,400 Assistant U.S. Attorneys serving across this country, or the countless individuals who have formerly served as U.S. Attorneys and Assistant U.S. Attorneys throughout this nation, the government objects to Request No. 19 as overly broad and burdensome and not calculated to lead to or involve information relevant to the instant matter. EFTA00179757

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 60 of 64 The government denies possessing or having any knowledge or information about a personal or business relationship between Jeffrey Epstein and either the U.S. Attorney or any Assistant U.S. Attorney serving in the Southern District of Florida. Except as otherwise admitted above, the government denies Request No. 19. 20. The government possesses, or has knowledge or information (including telephone logs, photographs, emails or statement(s) of other credible sources) about a personal or business relationship between Jeffrey Epstein and Matthew Menehel. UNITED STATES RESPONSE: Admitted. 21. The government possesses, or has knowledge or information (including telephone logs, photographs, emails or statement(s) of other credible sources) about a personal or business relationship between Jeffrey Epstein and Alex Acosta. UNITED STATES RESPONSE: Denied 22. The Justice Department's Office of Professional Responsibility and/or other Government entities have collected information about: (a) Bruce Reinhart's possible involvement in the Epstein matter; UNITED STATES RESPONSE: Admitted (b) Other government attorney's possible improper behavior in the Epstein matter; and UNITED STATES RESPONSE: Admitted (c) A conflict of interest regarding the U.S. Attorney's Office for the Southern District of Florida handling issues relating to the Epstein matter. UNITED STATES RESPONSE: Admitted EFTA00179758

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 61 of 64 23. The non-prosecution agreement signed by the U.S. Attorney's Office and Jeffrey Epstein currently blocks the U.S. Attorney's Office from prosecuting sex offenses committed by Epstein against Jane Doe #1 and Jane Doe #2 in the Southern District of Florida. UNITED STATES RESPONSE: 23. The government admits that the non-prosecution agreement signed by the USAO and Jeffrey Epstein currently blocks the USAO from prosecuting sex offenses committed by Epstein against Jane Doe #1 and Jane Doe #2 in the Southern District of Florida from in or around 2001 through in or around September 2007, provided that those offenses are set out on pages 1 and 2 of the non-prosecution agreement, were the subject of the joint investigation by the FBI and the USAO, or arose from the federal grand jury investigation. Except as otherwise admitted above, the government denies Request No. 23. 24. The Justice Department possesses information that Epstein, himself or through his attorney's or acquaintances, has provided or offered to provide to the federal government (or an individual within the Government, in his official or private capacity) valuable consideration. UNITED STATES RESPONSE: 24. Admitted; Jeffrey Epstein provided valuable consideration to the federal government through the non-prosecution agreement he entered with the USAO. 25. The Justice Department's Office of Professional Responsibility's investigation/inquiry into alleged misconduct relating to the negotiation and consummation of the Epstein non- prosecution agreement has relevance to issues pending in this case. UNITED STATES RESPONSE: Denied 26. The Government possesses evidence, not covered by grand jury secrecy rules, that reveals that districts outside the Southern District of Florida share jurisdiction and venue with the Southern District of Florida over potential federal criminal charges based on the alleged sexual acts committed by Epstein against Jane Doe #1 and/or Jane Doe #2. UNITED STATES RESPONSE: 26. The government objects to Request No. 26 because it seeks information protected from disclosure by the law enforcement investigative privilege. EFTA00179759

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 62 of 64 ,DEFINITIONS For the purpose of construing the foregoing discovery requests, the following terms are defined: The tenn "documents" means and includes, without limitation, all writings of any kind, including the originals and all non-identical copies or drafts, whether different from the original by reason of any notation made on such copy or draft or otherwise including, without limitation, correspondence, memoranda, notes, diaries, statistics, letters, e-mails, electronic computer files, telegrams, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books, prospectuses, interoffice communications, offers, notations of any sort of conversation, telephone calls, meetings or other communications, bulletins, printed matter, computer print-outs, teletypes, facsimiles, invoices, work sheets and all drafts, alterations, modifications, changes, and amendments of any of the foregoing, graphic or aural writs, records or representations of any kind including, without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures; and electronic, mechanical or electric records or representations of any kind including, without limitation, tapes, cassettes and disc recordings, and writings and printed material of every kind. The term "correspondence" means any tangible object that conveys information or memorializes information that was conveyed in tangible or oral form including, but not limited to, writings, letters, memoranda, reports, notes, e-mails, telephone logs, telephone billing information, telephone recordings, and interoffice communications. The term "Epstein's victims" means any person that the Government identified as a possible victim of a sex offense committed by Jeffrey Epstein, including Jane Doe #I, Jane Doe #2, all victims identified in attachment to the non-prosecution agreement entered into by Epstein, and another person that the Government investigated as a possible victim of Epstein's sex offenses. The term "Government" means the federal government, including all employees of and components of the United States Department of Justice (such as, the Office of the Attorney General, the Office of the Deputy Attorney General, the Criminal Divisions, the Office of Professional Responsibility, the Child Exploitation and Obscenity Section, the U.S. Attorney's Offices for the Southern District and Middle District of Florida, and the Federal Bureau of Investigation) and other federal government agencies with law enforcement responsibilities related to the Epstein case (such as the Internal Revenue Service). This request for production seeks all documents, correspondence, and other information held by all of these entities, including all employees of and components of the Justice Department that worked on or were in any way involved the Epstein investigation and/or that possess information relevant to the victims' claims. The term "including" means containing within the request, but not limiting the request. EFTA00179760

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 63 of 64 The term "U.S. Attorney's Office" means the U.S. Attorney's Office for the Southern District of Florida and includes all branch offices within the Southern District of Florida. PRIVILEGE LOG If you believe that any request for admission is subject to a privilege and if you intend to assert that privilege, please provide a "privilege log" consistent with Local Rule 26.1(g), including a description a document that is consistent with Local Rule 26.1(g)(3)(B). Your privilege log should include a specific identification of the privilege being asserted and the basis for the privilege. DATED: December I. 2011 Respectfully Submitted, s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEIIRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 Florida Bar No.: 542075 E-mail: [email protected] and Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: [email protected] The foregoing document and electronic mail to: Dexter A. Lee A. Marie Villafafia Attorneys for Jane Doe #1 and Jane Doe #2 CERTIFICATE OF SERVICE was served on December 1, 2011, on the following persons via US Mail EFTA00179761

Case 9:08-cv-80736-KAM Document 225-1 Entered on FLSD Docket 08/16/2013 Page 64 of 64 Assistant U.S. Attorneys 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: dexter.lee(41usdoj.gov E-mail: [email protected] Attorneys for the Government EFTA00179762

Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 N. UNI'T'ED STATES JANE DOE #1 AND JANE DOE #2'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS THAT ARE NOT PRIVILEGED EFTA00179763

Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 2 of 10 COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to move this Court to turn over to them numerous documents that to which the Government has asserted various privileges. All of the Government's assertions of privilege are not well founded, for the reasons described in this pleading, and the Court should provide all of the documents to the victims.' The factual support for the arguments found in this memorandum is contained, inter alia, in the attached affidavit of Bradley J. Edwards, Esq. The victims have also concurrently filed itemized objections to the Government's privilege log. I. General Responses to All Assertions of Privilege. Inadequate Privilege Log — The great bulk of the Government's privilege assertions do not comply with the Court's requirement that the privilege log must "clearly identify[] each document[] by author(s), addressee(s), recipient(s), date, and general subject matter . . . ." DE 190 at 2. As a result of the Government's failures, it is impossible to even begin to determine which of the Government's assertions of privilege are valid. Failure to Prove Factual Underpinnings of Privilege Claim — Most of the Government's privilege assertions rest on factual underpinnings (e.g., an attorney-client relationship is at issue, a deliberative process is at issue) that have not been proven by any materials in the record. Accordingly, these assertions of privilege are inadequate. See Bogle. McClure, 332 F.3d 347, 1358 (11th Cir. 2003); Brown' City of Margate, 842 F.Supp. 515, 520 Should the Court allow the Government to assert privilege with regard to any of the materials, the victims would then he free to argue that, as a remedy for the Government's assertion of privilege, the Court should preclude the Government from denying the claims by the victims that would have been supported by the withheld information. See, e.g., Attorney General of the U.S.I Irish People, Inc., 684 F.2d 928, 951 (D.C. Cir. 1982). 1 EFTA00179764

Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 3 of 10 (S.D. Fla. 1993) (government failed to prove attorney-client relationship), affd, 56 F.3d 1390 (I lth Cir. 1995). Waiver of Confidentiality — Somc of the Government's assertions of privilege fail because it is clear that any confidentiality was waived by the presence of persons outside the confidential relationship. For example, some of the assertions of attorney-client privilege involve documents and correspondence sent to person outside of any attorney-client relationship. Government's Fiduciary Duty to Crime Victims Bars Privilege - The Government cannot invoke privilege in the context of a Crime Victims' Rights Act petition because it owes a fiduciary duty to the crime victims to use "best efforts," 18 U.S.C. § 3771(c)(1), to protect their rights. See Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221, 226-27 (4th Cir. 2011) (noting that the attorney-client privilege does not apply "in the context of fiduciary relationships" and that "[t]his principle has been applied to fiduciary relationships beyond the traditional trust context"); see also In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 919-21 (8th Cir. 1997) (government attorneys have duty to report wrongdoing). Communications Facilitating Crime-Fraud-Misconduct Not Covered - Any privilege would be subject to a crime-fraud-misconduct exception. See In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985) (applying exception to attorney-client privilege); Cox v. Administrator U.S. Steel & Carnie, 17 F.3d 1386, 1422 (11th Cir. 1994) (applying exception to work product claim). Such an exception applies to the facts of this case. Factual Materials Not Covered - Any privilege would only cover materials reflecting the confidential relationship, not factual materials. See, e.g., EPA v. Mink, 410 U.S. 73, 87-88 (1973) ("memoranda consisting only of compiled factual material . . . and severable from its 2 EFTA00179765

Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 4 of 10 context would generally be available for discovery by private parties in litigation with the Government."). Many of the materials at issue arc factual materials. Documents Not Prepared in Anticipation of CVRA Litigation — The work product doctrine (as well as the investigative privilege) only applies to documents prepared by an attorney in anticipation of litigation, not to documents prepared in the ordinary course of business, pursuant to regulatory requirement, or for other non-litigation purposes. So/is v. Food Employers Labor Relations Ass'n, 644 F.3d 221, 231 (4th Cir. 2011). Many of the documents at issue here were not prepared in anticipation of litigation, and certainly not litigation about the Crime Victims' Rights Act. See, e.g., Southern Union Co. v. Southwest Gas Corp., 205 F.R.D. 542, 549 (D. Ariz. 2002) (documents not protected by work product because not prepared in connection with case at hand). II. Specific Responses to Specific Assertions of Privilege. A. Attorney-Client Privilege. Ordinary Governmental Communications Not Covered — A general attorney-client privilege does not exist for ordinary governmental communications. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 916-21 (8th Cir. 1997). Only communications concerning legal services covered — Any attorney-client privilege would be limited to communications made for purposes of facilitating the rendition of legal services to the Government client. See, e.g., Diamond v. City of Mobile, 86 F.R.D. 324 (D. Ala. 1978) (attorney-client privilege did not bar disclosure of statements made to the city attorney while conducting the internal investigation where the purpose of the investigation was 3 EFTA00179766

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 1 of 18 • UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 4 UNITED STATES JANE DOE #1 AND JANE DOE #2'S RENEWED MOTION FOR AN ORDER DIRECTING THE U.S. ATTORNEY'S OFFICE NOT TO WITHHOLD RELEVANT EVIDENCE COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to renew their Motion for an Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence (DE 50). The Court has previously reserved ruling on this motion. DE 99 at II. In light of the Governments' recent decision to assert that thousands of pages of documents are privileged — and to produce a privilege log in a manner and format that makes it impossible to understand what kinds of documents have been produced, or even whether the Government has responded to each request at all — the Court should now grant the motion. By granting the motion, the Court would simplify and expedite these proceedings and largely or entirely avoid the need for a document-by-document review of the Government's privilege assertions and the victims' responses to them. BACKGROUND As the Court is aware from the victims' previous filing of this motion (see DE 50 at 1-3), in discussions with the U.S. Attorney's Office about this case, counsel for Jane Doe #1 and Jane 1 EFTA00179767

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 2 of 18 Doe #2 inquired about whether the Office would voluntarily provide to the victims information in its possession that was material and favorable to the victims' ease. Victims' counsel pointed out that, if they were criminal defense attorneys representing criminals, the Office would promptly turn over all information in its possession that was helpful to these criminals under Brady v. Maryland, 373 U.S. 83 (1963), and related decisions. Victims' counsel asked the Office to extend to the victims the same assistance that it would provide to criminal defendants — i.e., to voluntarily provide to the victims information in its possession that was favorable to the victims' CVRA case. In response, victims' counsel were informed by the Office that it could — and would — withhold from the victims such information, apparently on the theory that the CVRA does not apply to this case or on the theory that victims lack due process rights under the CVRA. Accordingly, on March 21, 2011, the victims filed a motion asking the Court to enter an order directing the Government to produce information in its possession favorable to them. DE 50. The Government filed a response in opposition. DE 59. The victims filed a reply. DE 76. After a hearing on this and related motions, on September 26, 2011, the Court agreed to allow factual development through discovery by the victims. DE 99 at II. The Court allowed the victims to file requests for admission and for production of documents (and potentially other discovery requests as well). Id. The Court then noted: "Because the Court will allow this limited factual development, it is unnecessary to decide here whether the CVRA or the Federal Rules of Civil Procedure provide discovery rights in this context. The Court therefore reserves ruling on [the victims'] motion [for an order directing the Government not to withhold relevant evidence]." Id. 2 EFTA00179768

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 3 of 18 On October 3, 2011, the victims filed requests for production with the Government. On November 7, 2011, rather than produce even a single page of discovery, the Government filed a motion to dismiss the victims' petition. DE 119. On that same day, the Government filed a motion to stay discovery. DE 121. The victims filed a response, arguing that the Government's motion was a stall tactic. DE 129. The victims also filed a motion to compel production of all of their discovery requests. DE 130. The Government filed a reply, arguing that it was not stalling. Indeed, the Government told the Court that "the United States has agreed to provide some information to [the victims] even during the pendency of the stay [of discovery] and is undertaking a search for that information." DE 140 at 4. Contrary to that representation, however, over the next seventeen months, the Government did not produce any information to the victims. Ultimately, after some additional motions and rulings, on June 19, 2013, the Court denied the Government's motion to dismiss and lifted any stay of discovery. DE 189. That same day, the Court entered an order granting the victims' motion to compel and directing the Government to produce (1) all correspondence between it and Epstein; (2) all communications between the Government and outside entities; and (3) every other document requested by the victims. DE 190 at 2. With respect to the third item, the Court allowed the Government to assert privilege by producing the items in question for in camera inspection and filing a contemporaneous privilege log. Id. The Court required that the privilege log must "clearly identify[] each document[] by author(s), addressee(s), recipient(s), date, and general subject matter . . . ." DE 190 at 2 (emphasis added). 3 EFTA00179769

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 4 of 18 On July 19 and July 27, 2013, the Government made its production in this case. With regard to item (1) — correspondence with Epstein, the Government withheld the correspondence pending a ruling from the Eleventh Circuit on Epstein's motion to stay production of these materials. With regard to the other items, the Government produced 14,825 pages of documents to the Court for in camera inspection, but turned over only 1,357 pages to the victims. Thus, the Government asserted privilege to more than 90% of the documents in question. The documents that the Government produced were almost worthless to the victims, as they included such things that the victims' own letters to the Government (Bates 0001-04), court pleadings filed by the victims themselves or other victims, by Epstein, or by news media organizations (e.g., Bates 00142-88, 00229-31, 281-311, 00668-69), public court rulings on Epstein related matters (e.g., Bates 0008-10, 0012-14. 0036-86, 00190-228), public newspaper articles (e.g., Bates 0011, 0030, 0032-33), and similar materials already available to the victims. It also included roughly four hundred pages of notices sent to the various other victims in this case — notices that were substantively indistinguishable from the notices the victims themselves had already received. Almost without exception, the documents the Government produced do not go to the disputed issues in this case. On the other hand, the Government asserted privilege on 13,468 pages of materials. While many of these pages also do not appear to go to the disputed issues in this case, buried among the documents appear to be some highly pertinent materials. The Government has asserted privilege, for example, with regard to its internal discussions about notifications to crime victims. The Government has also asserted privilege with regard to an investigation by the Office of Professional Responsibility (OPR) regarding the handling of the Epstein case and the 4 EFTA00179770

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 5 of 18 treatment of the victims. It is, however, difficult to say for certain which documents are important, because rather than comply with the Court's privilege log requirement, the Government provided only a truncated log that did not fully describe the documents at issue, much less "clearly" identify the subject matter of the documents and the parties who received them.' 'I'he Government has also failed to identify which documents it is producing go to which document production requests. DISCUSSION The victims have previously explained at length why the Court should enter an order directing the Government not to withhold relevant documents. DE 50; see also DE 59 (Gov't Response); DE 76 (victim's reply). The Court reserved ruling on that motion for an uncertain amount of time. The victims will not repeat their previously-advanced arguments here, but simply incorporate them by reference and respectfully suggest that now would be a propitious point in this case for the Court to take up the motion again — and to grant the motion. Doing so would save the Court and the victims considerable amount of time by narrowing (or even eliminating entirely) the number of privilege issues that would need to be resolved. In addition, the victims wish to advance three new arguments in support of their motion for such an order based on new developments in this case since they filed their motion. First and most important, the Government's response to the Court's discovery order is so fundamentally inadequate that the Court should simply not allow further litigation but provide the documents to the victims by granting their motion. Second, the Court should also grant the victims' motion Further factual information that may be relevant to this motion is found in the contemporaneously-filed Affidavit of Bradley J. Edwards, attached to Jane Doe #I and Jane Doe #2's Motion to Compel Production of Documents That Arc Not Privileged. 5 EFTA00179771

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 6 of 18 because the Government's fiduciary obligations to the victims to use its "best efforts" to protect their rights conflict with its privilege assertions. Specifically, assertion of any privilege is inconsistent with the fiduciary duties that flow from that statutory "best efforts" requirement. Third, the Government's recent admissions and privilege log make clear that significant "Brady" material exists. Accordingly, the Court should no longer reserve ruling on the victims' motion but instead should simply order these highly relevant materials to be produced now, just as it would order the Government to produce highly relevant materials to criminal defendants. 1. THE COURT SHOULD SIMPLY PRODUCE THE DOCUMENTS TO THE VICTIMS BECAUSE OF THE GROSS INADEQUACIES OF THE GOVERNMENT'S PRIVILEGE ASSERTIONS. The Government has grossly violated the Court's order to provide an appropriate privilege log in connection with the disputed documents. In light of that stark failure, the Court should simply grant the victims' pending motion regarding suppression of evidence and produce the disputed documents to them. As the Court is well aware, it has denied repeated efforts by the Government to block the victims from receiving relevant information about this case. In its most recent order (DE 190), the Court directed the Government to either produce "all other responsive documents in response to all outstanding requests for production of document" to the victims or "file and serve, in the public portion of the court file, a privilege log clearly identifying each document[] [withheld] by author(s), addressee(s), recipient(s), date, and general subject matter . . . ." DE 190 at 2 (emphasis added). Government then made its production. But rather than provide helpful information to the victims, the Government instead has provided information that was essentially irrelevant to the disputed issues. See Affidavit of Bradley J. Edwards at 5. 6 EFTA00179772

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 7 of 18 More important with regard to this motion, the Government has not begun to comply in a meaningful way with a discovery process that would permit the victims to obtain information relevant to their claims. Of course, the purpose of a privilege log "is to provide a party whose discovery is constrained by a claim of privilege . . . with information to sufficient to evaluate such a claim and to resist if it seems unjustified." Tulle v. Henry, 98 F.3d 1411, 1416 (D.C. Cir. 1996). Reinforcing that command, this Court required the Government's privilege log to "clearly" indicate what materials were covered. The Government has not begun to provide the victims with sufficient information to resist claims of privilege. One of the most basic problems with the Government's action is that it is not identified which of the "privileged" documents apply to which of the victims' document production requests. Instead, the Government has simply taken more than 13,000 pages of documents, Bates stamped them in no particular order (or at least no order that the victims can discern), and then asserted that they are all privileged for various reasons. The resulting "log" is wholly inadequate for multiple reasons, the most basic of which is that it does not signal to the victims which produced documents respond to which requests. To gather the documents to respond to the Requests for Production (RFPs),2 presumably the Government had to perform query searches in electronic databases or actual searches in paper files.3 Each search would have then produced certain documents. But rather than disclose documents on a search-by-search basis, the Government has simply taken the all documents it gathered, apparently dropped them on the 2 The victims' First and Second Requests for Production are included as attachments to the Affidavit of Bradley J. Edwards, which is (in turn) an attachment to the victims' contemporaneously-filed Motion to Compel Production of Documents That Are Not Privileged. See, e.g., Jane Doe #1 and Jane Doe #2's First RFP, ¶ I6(d) (requesting emails and other documents in which certain particular words appear). 7 EFTA00179773

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 8 of 18 floor into a random pile, and then provided a "log" of documents in no order whatsoever — and without indicating which documents are being produced in answer to each question. The resulting mishmash of thousands of documents places the victims in the impossible position of trying to determine what the documents mean without any context whatsoever. Compounding this problem and creating a critical additional problem, this lump and dump technique makes it impossible to verify that the Government has actually performed each of the searches required to make each of the responses. Indeed, it would be entirely possible that the Government could have failed to search for, or to produce, any documents whatsoever on certain requests and the victims would have no way to know one way or the other. Perhaps in theory these problems might be mitigated if the Government had produced (as the Court required) a privilege log "clearly" describing the subject matters and other particulars of the documents produced. But as the Court can confirm with just a casual glance at the privilege log, many of the documents have been described generically or not at all, leaving the victims to wonder what many of the documents really are. The upshot of the "lump and dump" approach is that the victims cannot even begin to understand what has been produced with regard to their particular discovery requests. As an illustration, consider the victims' request for production of documents about former prosecutor Bruce Reinhart's knowledge of information about the Epstein prosecution immediate before he left to become employed by Epstein. See Jane Doe #1 and Jane Doe #2's First Request for Production, ¶ 15 (seeking this information); ¶ 21 (requesting information collected by OPR on this subject). The victims know that the Government has information responsive to this request, because in answering the victims' First Request for Admissions, the Government admitted that it 8 EFTA00179774

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 9 of 18 possessed information reflecting contacts between Reinhart and persons working at the Justice Department that related to the Epstein investigation. See Government's Answers to Jane Doe #1 and Jane Doe #2's First Request for Admissions (RFA's), fl 15-17.4 It further admitted that OPR collected information about Reinhart's possibly improper behavior. See Gov't's Answers to RFA's, ¶ 22(a). Yet them is no way to tell which documents (among the more than 13,000 pages of documents) are responsive to RFP 15 because the Government has not indicated which of its documents apply to which RFP. Nor has the Government given the victims sufficient information to make this determination on their own. Indeed, the Government's privilege log does not even contain the word "Reinhart" anywhere in it. So it is simply impossible to tell which documents apply to the Reinhart issue. As another illustration, consider the victims' request for information about former prosecutor Matthew Menchel's personal/business relationship with Jeffrey Epstein. See, e.g., Victims' First RFP's at ¶ 16(f). Here again, the victims know that the Government possesses such information, because it admitted to having such information in answer to the victims' request for admissions — information collected by its own internal affairs unit, OPR. See Gov't's Answers to RFA's, ¶ 20. Yet once again, it is impossible for the victims to even tell which documents (if any) the Government has turned over to the Court that pertain to this issue, because the Government has not explained which documents apply to this request and none of 4 The victims' Request for Admissions and the Government's answers thereto are included as an attachment to the Affidavit of Bradley J. Edwards, which is (in turn) an attachment to the victims' contemporaneously-filed Motion to Compel Production of Documents That Are Not Privileged. 9 EFTA00179775

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 10 of 18 the privilege log entries provide any description that indicates they cover documents regarding such a personal or business relationship? As yet another illustration, consider the victims' request for information about the OPR investigation into the possible mishandling of the Epstein prosecution and victim notifications. Here again, the victims have very specifically requested such information. See Victims' First RFP's at ¶ 17. The Government has admitted that OPR collected information about possible improper behavior by prosecutors in the Epstein matter. Gov't's Answers to RFA's, ¶ 22. Yet it is simply impossible to tell where the information that the Government collected appears among thousands of pages of documents it has produced.6 As a fourth and final illustration, the victims requested information about why the U.S. Attorney's Office for the Southern District of Florida (USAO-SDFL) was "conflicted out" of considering issues relating to the Epstein matter, as well as any information that developed about that conflict after the Epstein matter was referred to another district (e.g., the Middle District of Florida). See Victims' First RFP's at ¶ 18; Victims' Second FRP's at ¶ 1. The victims know that the USAO-SDFL was in fact conflicted out of some decisions, so presumably the USAO- MDFL evaluated something as a result. Yet apart from a few preliminary cmails within the 5 Menchel is, of course, revealed in the privilege log at several points as on the e-mails chains involved in the plea bargain discussions surrounding the Epstein prosecution. But none of the vague descriptions in the privilege log appear even remotely related to a personal or business relationship. Moreover, given that many of the privilege log entries do not even include dates, it is not even possible to look for materials that might follow the date on which Menchel left the U.S. Attorney's Office. 6 The Court will notice that some pages in the Government's privilege log do deal with the OPR investigation. See Gov't Supp. Privilege Log at 12-14. But so far as the victims can discern, the documents covered there are simply e-mails about the OPR investigation, rather than the underlying substantive information collected during the OPR (or OPR-triggered) investigation. 10 EFTA00179776

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 11 of 18 Justice Department regarding whether the recusal should occur, see Gov't First Privilege Log at pp. 22-23, nothing in the privilege log indicates that the Government has produced even a single document in response to the request for information about what happened as a result of the recusal. Indeed, so far as the victims can tell, the Government may even be staking out the remarkable position that there is not even one single document in the Middle District of Florida that is responsive to the victims' requests, because (so far as the victims can tell) nothing has been provided from the Middle District of Florida. These are but four clear and illustrative examples, which the victims could multiply dozens of times. The victims respectfully ask the Court to require the Government, in its response to this motion, to indicate where (if anywhere) in the privilege log documents pertaining to these four issues appear, so that the Court can then judge for itself whether the victims have been given sufficient information to respond to the Government's claims of privilege. Again, our point in this pleading is not to try and debate the Government on its privilege assertions. The morc basic point in this pleading is that the victims cannot even begin to fairly challenge many of the Government's assertions because they do not know which (if any) of the documents at issue pertain to their discovery requests. The Government's privilege assertions are simply broken beyond repair. In view of this gross failure by the Government, the Court should simply provide the documents it has received to the victims by granting the victims' Motion for an Order to the Government not to Withhold Relevant Evidence. At an absolute minimum, to solve the problem that the Government has not indicated which documents apply to II EFTA00179777

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 12 of 18 which requests, the Government should be required to provide a listing of documents on a request-by-request basis. II. THE. COURT SHOULD ORDER THE GOVERNMENT TO PRODUCE THE REQUESTED DOCUMENTS BECAUSE THE CVRA'S BEST EFFORTS REQUIREMENT CREATES A FIDUCIARY EXCEPTION TO ALL PRIVILEGES. In their 2011 motion, the victims explained that the CVRA obligates government prosecutors to "make their best efforts to see that crime victims are . accorded[] their rights" under the CVRA. DE 50 at 3-5 (citing 18 U.S.C. § 3771(c)(I)); see also DE 76 at 2-6. In light of the Government's recent assertion of privilege, the Government's failure is now even more apparent. The Government's invocation of a privilege to block disclosure of documents is simply inconsistent with the Government's statutorily-mandated best efforts obligation. Controlling circuit precedent supports the conclusion that the Government fiduciary duty bars an assertion of privilege, even in the context of the well-established and absolute attorney- client privilege. In Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), the Court of Appeals with jurisdiction over this Court held that an attorney-client privilege can give way when "the client asserting the privilege is an entity which in the performance of its functions acts wholly or partly in the interests of others, and those others . . . seek access to the subject matter of the communications." Id. at 1101 (emphasis added). In Garner, the Court refused to allow the management of a corporation to invoke attorney-client privilege in the context of a shareholder derivative action, noting that beneficiaries of its actions with the stockholders. Id Since that 7 See Knight v. Thompson, ---F.3d---, 2013 WI, 3843803 at *5 n.5 (11th Cir. 2013) (citing Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane) (11th Circuit adopts as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981)). 12 EFTA00179778

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 13 of 18 ruling, many courts (including this Court) have applied the "Garner doctrine" or "fiduciary exception doctrine" in settings outside the shareholder derivative context. See, e.g., Solis v. Food Employers Labor Relations Ass h, 644 F.3d 221, 227-28 (4th Cir. 201 I) (applying Garner principles to bar assertions of privilege to communications by ERISA fiduciary and plan attorneys in suit concerning alleged mismanagement of plan assets); Maltby v. Absolut Spirits Co., Inc., 2009 WL 800142 at *4 (S.D. Fla. 2009) ("Defendant maintains that this Court should not apply the fiduciary exception here because the Eleventh Circuit has never applied the fiduciary exception in the context of an ERISA case. Defendant provides no legal or factual explanation of why this Court should not apply this doctrine, however."); Nellis v. Air Line Pilots Assn, 144 F.R.D. 68, 71 (E.D. Va. 1992) (holding that the Garner doctrine applies because unions owe a fiduciary duty to their members). The "Garner doctrine" or "fiduciary exception" has also been applied to bar the federal government from asserting privilege against those whose interests it must protect, such as Indian tribes. See, e.g., Osage Nation and/or Tribe of Indians of Oklahoma v. United States, 66 Fed. Cl. 244 (2005); Cobell v. Norton, 212 F.R.D. 24 (D.D.C. 2002). For instance, in Osage Nation, the Government argued against application of the fiduciary exception in the context of a case alleging mismanagement of Indian trust funds, contending that the federal agencies are "often charged with protecting competing interests, including some potentially adverse to a Tribe's interest." Id. at 247. The district court rejected these arguments, finding the claim "that the government's sovereign interests somehow negate or offset its obligations as trustee to be unpersuasive." Id. at 248. The situation here is parallel to situations such as a union being challenged by its members or the Government is being challenged an Indiana tribe. In this case, of course, a U.S. 13 EFTA00179779

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 14 of 18 Attorney's Office is being challenged by recognized crime victims, who arc arguing that the Office violated its statutory obligation to act in their "best interests." Accordingly, under Garner, an attorney-client privilege is not appropriate, provided the victims to show "good cause" why the privilege should not be invoked. Id. at 1104. I lere, there is ample good cause. See generally Affidavit of Bradley J. Edwards, Esq. (filed concurrently with this motion as an attachment to the Victims' Motion to Compel Production of Documents that Are Not Privileged) (explaining why good cause exists for production of documents requested). As a result, the Court should not allow the Government to invoke privilege but should instead simply grant the victims' motion for an order not allowing the Government to withhold relevant evidence and turn the disputed materials over to the victims. III. THE VICTIMS HAVE A DUE PROCESS RIGHT UNDER THEIR CVRA "RIGHT TO BE TREATED WITH FAIRNESS." In their 2011 motion, the victims also argued that they were entitled to receive favorable evidence in the Government's possession for the same reason that criminal defendants receive such information: fundamental considerations of fairness require that the Government not deliberately withhold relevant information contrary to its position in court. DE 50 at pp. 5-9 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963), and arguing that they are entitled to "Brady" information contradicting the Government's position no less than criminal defendants). In light of the Government's recently-filed privilege log, the need for the Court to grant the victims' motion has become even more apparent. The Government's privilege log indicates that it is withholding significant information that is critical to the victims' arguments. For example, the Government is withholding 14 EFTA00179780

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 15 of 18 information about its discussions concerning how to notify crime victims. See, e.g., page 16 of first privilege log (DE 212-1) regarding Box #2 P-010526 to P-010641. And the Government is withholding information about its own internal investigation into the potential wrongdoing in this case. See, e.g., page 13 of supplemental privilege log (DE 216-1) regarding Suppl. Box 3 P- 013940 to P-013942. As we understand the Government's position on this issue, it does not contend that it does not have important evidence for the victims' case. Nor does the Government argue that it would be difficult to identify that material. Instead, the Government's argument has been that Brady obligations are confined to criminal cases against criminal defendants. DE 59 at 5-6. But the case law is not so narrow as the Government believes. The victims have recently identified several cases in which courts have applied Brady outside of the criminal context. In Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993), the Sixth Circuit applied Brady in the context of a denaturalization and extradition case. In United States v. Edwards, 777 F.Supp.2d 985 (E.D.N.C. 2011), the district court applied Brady to civil commitment proceedings for sexual offenders. And in EEOC v. Los Alamos Constructors, Inc., 382 F.Supp. 1373, 1374 (D.N.M. 1974), the district court applied Brady to an employment discrimination action. The issue of Brady obligations in a CVRA action appears to be one of first impression. Thus, more important than case law is the fact that the victims here can rely on specific statute — the CVRA — that gives them a right to be "treated with fairness." 18 U.S.C. § 3771(aX8). Being treated with fairness means (at a minimum) treated someone with due process. As one of the CVRA's co-sponsors (Senator Kyl) explained, "The broad rights articulated in this section [§ 3771(a)(8)] are meant to be rights themselves and are not intended to just be aspirational. One of 15 EFTA00179781

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 16 of 18 these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct Government agencies and employees, whether they arc in executive or judiciary branches, to treat victims of crime with the respect they deserve." 150 Cong. Rec. S4269 (Apr. 22, 2004) (emphasis added). In the context of this particular case, it is simply inconsistent with the "due process" requirements of the CVRA to allow the Government to withhold documents that will help the victims prove their case. The Court should accordingly enter an order, paralleling its "Standing Discovery Order" in criminal cases, directing the Government to provide favorable evidence to the victims. See Local Rule 88.10. The Standing Discovery Order typically provides: "The government shall reveal to the defendant(s) and permit inspection and copying of all information and material known to the government which may be favorable to the defendant on the issues of guilty or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976)." The Court should adopt that language to the case at hand here. Interesting, the Standing Discovery Order — and associated local rule 88.10(O) — contains a broad, commonsense provision which the Government has plainly violated in this case. The Order provides: "The parties shall make every possible effort in good faith to stipulate to all facts or points of law the truth or existence of which is not contested and the early resolution of which will expedite the trial." For more than five years, the victims have been trying to get the Government to stipulate to undisputed facts, precisely as the Court's rules envision. The Government, however, has refused to do so. Accordingly, the Court should enter an order 16 EFTA00179782

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 17 of 18 requiring the Government to produce evidence which it well knows is relevant and material to the victims' case. And because the Court has in its possession thousands of pages of documents that fit that description, the Court should simply turn that information over to the victims. CONCLUSION The Court should enter an order directing the Government not to withhold material evidence in this case and should provide to the victims the materials it has received for in camera review. In addition, to solve the problem that the Government has not indicated which documents apply to which requests, the Government should be required to provide such a responsive document. DATED: August 16, 2013 Respectfully Submitted, /s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEI IRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 E-mail: [email protected] and Paul G. Cassell Pro Ilac Vice S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: [email protected] Attorneys for Jane Doe #1 and Jane Doe #2 17 EFTA00179783

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 18 of 18 CERTIFICATE OF SERVICE I certify that the foregoing document was served on August 16, 2013, on the following using the Court's CM/ECF system: Dexter Lee A. Marie Villafafla 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: Dexter.Lec(e)usdoj.gov E-mail: [email protected] Attorneys for the Government Roy Black, Esq. Jackie Perczek, Esq. Black, Srebnick, Kornspan & Stumpf, P.A. 201 South Biscayne Boulevard, Suite 1300 Miami, FL 33131 Email: [email protected] (305) 37106421 Jay P. Lefkowitz Kirkland & Ellis, LLP 601 Lexington Avenue New York, NY 10022 Email: [email protected] (212) 446-4970 Martin G. Weinberg, P.C. 20 Park Plaza, Suite 1000 Boston, MA 02116 Email: [email protected] (617) 338-9538 Criminal Defense Counsel for Jeffrey Epstein /s/ Bradley J. Edwards 18 EFTA00179784

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE NI AND JANE DOE #2, Petitioners, vs. UNITED STATES, Respondent. RESPONDENT'S OPPOSITION TO PETITIONERS' RENEWED MOTION FOR AN ORDER DIRECTING THE U.S. ATTORNEY'S OFFICE NOT TO WITHHOLD RELEVANT EVIDENCE Respondent, by and through its undersigned counsel, files its Opposition to Petitioners' Renewed Motion for an Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence, and states: I. INTRODUCTION In its Omnibus Order of June 18, 2013, this Court directed that petitioners should have thirty days after service of the government's privilege log to file a motion to compel contesting any asserted privilege claim. D.E. 190 at 2. Any such motion to compel was limited to seven pages. N. Within fifteen days, the government was permitted to file its response, which was also limited to seven pages. D.E. 190 at 3. Petitioners' response to the government's filing of its privilege log has been the filing of the following: (I) the government's privilege log with its objections annotated (D.E. 224-1); (2) a motion to compel production of documents that are not privileged, numbering eight pages D.E. 225; (3) a twenty-four page, single-spaced affidavit of petitioners' counsel, addressing the EFTA00179785

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 2 of 12 various privileges asserted by the government, D.E. 225-1; and (4) a renewed motion for an order directing the U.S. Attorney's Office not to withhold relevant evidence, numbering seventeen pages, D.E. 226. The renewed motion also challenges the government's assertions of privilege. I. THE GOVERNMENT HAS PROPERLY INVOKED APPLICABLE PRIVILEGES Petitioners argue that this Court should summarily dismiss the privileges invoked by the government because of the "gross inadequacies" in the privilege assertions. D.E. 226 at 6-7. Their argument is baseless because the privilege log does clearly indicate what documents for which a privilege is being claimed. Further, the Court also has the actual document for in camera review to determine if the privilege is valid. Petitioners go so far as to complain that the government has not identified in the privilege log which documents respond to which requests. Id. at 7. They do not explain how the validity of a privilege is contingent upon which request for production the document is responsive to. In request for production no. 18, petitioners requested documents "regarding potential conflicts of interest that the Justice Department discussed or determined existed for the USAO SDFL...." The government's privilege log clearly references e-mails between Assistant General Counsel Richard Sudder, Executive Office for United States Attorneys, and First Assistant U.S. Attorney Benjamin Greenberg, "regarding Formal Notice of Office-wide Recusal of Southern District of Florida, dated August 24 and August 29, 2011." D.E. 212-1 at 22. Further, the privilege log detailed cmails between Peter Mason, Executive Office for United States Attorneys, and Assistant U.S. Attorney Dexter Lee, "seeking advice regarding office-wide mensal, dated December 16 and 17, 2010, with attached letter from Paul Cassell to Wifredo A. Ferrer, dated December 10, 2010." D.E. 212-1 at 23. 2 EFTA00179786

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 3 of 12 The subjects of the c-mails, office-wide recusal and "seeking advice regarding office- wide recusal," were stated in the privilege log. The attorney-client privilege was invoked for these documents, along with the deliberative process and work product privileges for a subset of these documents. Since petitioners requested these documents, they should be able to discern what document request they pertain to. Moreover, the purpose of the e-mails, seeking advice regarding office-wide recusal, was stated in the privilege log. This is sufficient factual detail to permit petitioners and the Court to determine whether the attorney-client privilege applies. Petitioners' claim that the government has failed to produce relevant documents is based on fallacious assumptions. They use as an example of a failure to produce documents the request for documents regarding former Assistant U.S. Attorney Bruce Reinhart. D.E. 226 at 8-9. "The victims know that the Government has information responsive to this request, because in answering the victims' First Request for Admissions, the Government admitted that it possessed information reflecting contacts between Reinhart and persons working at the Justice Department that related to the Epstein investigation." Id. Continuing, petitioners state, "It further admitted that OPR collected information about Reinhart's possibly improper behavior." They then argue that "there is no way to tell which documents (among the more than 13,000 pages of documents) are responsive to REP 15 because the Government has not indicated which of its documents apply to which RFP."I Id. at 9. The fallacy in petitioners' reasoning is the assumption that the basis for the government's response to the request for admission was a document, rather than personal observation. If it was based on the latter, there would be no document to produce. Petitioners make the same fallacious assumption in the case of former Assistant U.S. Attorney Matt Mcnchcl. D.E. 226 at 9-10. The admission in Request for Admission No. 20 need not have been based upon a The RFP which seeks documents pertaining to Reinhart is actually number 16, rather than 15. 3 EFTA00179787

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 4 of 12 document. Petitioners admit that the government has included documents from the Office of Professional Responsibility (OPR) in its privilege logs. D.E. 226 at 10 n.6. The government has properly invoked the attorney-client, work product, and deliberative process privileges for many of the OPR documents. D.E. 216-1 at 12-14. In Sandra T.E. v. South Berwyn School District 100, 600 P.3d 612 (7th Cir. 2010), the Seventh Circuit reversed a district court's finding that the attorney-client and work product privileges did not apply to notes of witness interviews, and memoranda prepared from those interviews, by a law firm retained by a school district. A teacher in the school district was charged with sexually molesting numerous students over several years. Id. at 615. A civil lawsuit was filed against the school district and the principal. The school district hired Sidley Austin LIP to conduct an internal investigation and provide legal advice to the school board. Sidley Austin was not the school district's litigation counsel in the civil lawsuit. Attorneys from Sidley Austin interviewed current and former school district employees, as well as third-party witnesses. The attorneys took handwritten notes and later drafted memos summarizing the interviews. Id. During discovery in the civil litigation, the plaintiffs sought documents in Sidley Austin's possession regarding its investigation. The law firm invoked the attorney-client and work product privileges as to its notes and internal memoranda relating to the employee witness interviews, as well as other legal memoranda. The district court rejected the privilege claims, finding that Sidley Austin had been hired to provide investigative services, not legal services. Id. The appellate court found, based on the engagement letter between Sidley Austin and the school district, that the law firm had been hired to "investigate the response of the school administration to allegations of sexual abuse of students," and "provide legal services in 4 EFTA00179788

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 5 of 12 connection with the specific representation." Id. at 619. The Seventh Circuit found this letter brought the case squarely within Upjohn Co. v. United States 449 U.S. 383 (1981), "which explained that factual investigations performed by attorneys as attorneys fall comfortably within the protection of the attorney-client privilege." 600 F.3d at 619(emphasis in original). Despite the fact that Sidley Austin was not the school district's litigation counsel, the appellate court found that Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the school district should respond. Id. at 620. The Court also found the witness interview notes and memoranda were entitled to protection under the work product privilege because they were prepared "with an eye toward" the pending litigation. Js1 at 622 In this case, OPR is charged with the responsibility of investigating allegations of misconduct committed by DOJ attorneys. 28 C.F.R. § 0.39a(a)(I). The counsel heading OPR reports to the Attorney General. 28 C.F.R. § 0.39a. One of OPR's functions is to "[deceive, review, investigate and refer for appropriate action." § 0.39a(aX2). In discharging this function, OPR attorneys interviewed DOJ attorneys regarding the allegations of misconduct lodged by petitioners' counsel, took notes, and prepared memoranda, just like the law firm retained by the South Berwyn School District. The documents generated by these investigative actions are covered by the work product privilege because notes and memoranda prepared by OPR attorneys are created with an eye toward potential litigation. Under § 0.39a(a)(3), OPR Counsel shall, "[deport to the responsible Department official the results of inquiries and investigations arising under paragraphs (a)(I) and (2) of this section, and, when appropriate, make recommendations for disciplinary and other corrective action." 5 EFTA00179789

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 6 of 12 In their fourth example, petitioners claim they "know that the USAO-SDFL was in fact conflicted out of some decisions, so presumably the USAO-MDFL evaluated something as a result." D.E. 226 at 10-11. They contend that, other than a few preliminary emails within the DOJ regarding whether the recusal should occur, "nothing in the privilege log indicates that the Government has produced even a single document in response to the request for information about what happened as a result of the recusal." Petitioners appear to believe that, because the USAO-SDFL was recused from the Epstein case, the USAO-MDFL "evaluated something as a result." In U.S. v. Wevhrauch, 544 F.3d 969 (9th Cir. 2008), the Ninth Circuit noted that, "the General Counsel's Office of the EOUSA coordinates office-wide recusals, obtains necessary approvals and helps arrange the transfer of responsibility to another office ... ." Id. at 973-74. Office-wide recusals are frequently based upon a finding that a reasonable person could question the impartiality of a particular U.S. Attorney's Office, such as when the Office is prosecuting a crime where the victim is an employee in that U.S. Attorney's Office, or a defendant is a close family member of a U.S. Attorney's Office employee. Petitioners seem to believe that the recusal of the USAO- SDFL was based on a finding that misconduct had occurred in the Epstein case, which is incorrect. Further, the transfer of responsibility to the USAO-MDFL was not a charter for it to investigate the USAO-SDFL. Instead, the USAO-MDFL assumed responsibility for the Epstein case, and exercises its own independent judgment and discretion in deciding what action to take, if any. II. THE FIDUCIARY EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE DOES NOT APPLY IN THIS CASE Petitioners argue that government should be ordered to produce the requested documents because there is a fiduciary exception to all privilege. This wholesale attempt to overcome the 6 EFTA00179790

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 7 of 12 government's claims of privilege should be rejected because it lacks any legal basis. The premise of petitioners' argument is that the CVRA provides that government prosecutors are to "make their best efforts to see that crime victims are accorded their rights." 18 U.S.C. § 3771(cX1). They provide no legal authority for the contention that the CVRA creates a fiduciary obligation between the government and crime victims. Instead, petitioners attempt to engraft such a duty from other cases, involving duties owed by a corporation to its shareholders, Gamer v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), and the relationship between the federal government and Indian tribes. None of those cases are apposite. In United States v. Jicarilla Apache Nation, 131 S.Ct. 2313 (2011), the Supreme Court reversed the Court of Federal Claims' finding that the government was required to produce documents in litigation involving the Jicarilla Apache Nation. The Tribe had instituted a breach of trust action against the United States, claiming the government had mismanaged funds held in trust for the Tribe. The Tribe sought various documents in discovery, which included materials for which the government claimed were protected by the attorney-client privilege. The Court of Federal Claims applied the fiduciary exception to the attorney-client privilege, applied in the context of common law trust, and found the documents were not privileged. 131 S.Ct. at 2319. The Supreme Court reversed, finding the government is not a private trustee, and the trust defined between the government and the Tribe was governed by statutes, rather than the common law. Id. at 2323. Further, the United States did not obtain legal advice as a "mere representative" of the Tribe, nor was the Tribe the "real client" for whom that advice was intended. a at 2326. Assuming any fiduciary relationship exists between the government and a crime victim, such relationship would be based on the CVRA, not the common law. Further, the government would be managing any trust relationship as a sovereign function, pursuant to 7 EFTA00179791

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 8 of 12 the plenary authority of Congress, not as a private trustee. In Jicarilla, the Supreme Court distinguished Garner: The United States has a sovereign interest in the administration of Indian trusts distinct from the private interests of those who may benefit from its administration. Courts apply the fiduciary exception on the ground that "management does not manage for itself." Garner, 430 F.2d at 1101; Wachtel, 482 F.3d at 232 ("[Ojf cental importance in both Garner and Riggs was the fiduciary's lack of a legitimate personal interest in the legal advice obtained"). But the Government is never in that position. While one purpose of the Indian trust relationship is to benefit the tribes, the Government has its own independent interest in the implementation of federal Indian policy. For that reason, when the Government seeks legal advice related to the administration of tribal trusts, it established an attorney-client relationship related to its sovereign interest in the execution of federal law. In other words, the Government seeks legal advice in a "personal" rather than a fiduciary capacity. See Riggs, 355 A.2d at 711. 131 S.Ct. at 2327-28. In this case, the government had its own independent interest in the exercise and implementation of its sovereign authority to prosecute an individual for violating federal law. Therefore, the fiduciary exception does not apply.2 III. PETITIONERS HAVE NO DUE PROCESS RIGHTS UNDER THE CVRA, Petitioners argue that they have a due process right to documents in the government's possession. D.E. 226 at 14-17. The basis for a due process right, according to petitioners, is the CVRA's provision that crime victims have a right "to be treated with fairness." 18 U.S.C. § 3771(a)(8). In making this due process argument, petitioners dispense with any analysis of whether the CVRA creates any protected liberty or property interest, sufficient to trigger the due process clause. "The necessary first step in evaluating any procedural due process claim is determining 2 The two cases cited by petitioners in support of a fiduciary exception due to the government's relationship with Indian tribes Osage Nation and/or Tribe of Indians of Oklahoma v. United States, 66 Fed. Cl. 244 (2005), and Cobell v. Norton 212 F.R.D. 24 (D.D.C. 2002), are of dubious vitality in light of iicarilla Apache Nation. 8 EFTA00179792

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 9 of 12 whether a constitutionally protected interest has been implicated." Tefel v. Reno, 180 F.3d 1286, 1299 (11th Cir. 1999), Eijil El Economic Dev. Corp. v. Stierheim 782 F.24 952, 95455 (11th Cir. 1986)("in assessing a claim based on an alleged denial of procedural due process a court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest. Absent such a deprivation, there can be no denial of due process."). There is no life, liberty, or property interest implicated in the CVRA, and courts are hesitant to find that a substantive due process right has been created. Site Collins v. City of Harker Heights. Texas, 503 U.S. 115, 125 (1992X"As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open ended. (citation omitted). The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we arc asked to break new ground in this field."). Without a protected life, liberty, or property interest, petitioners cannot invoke the due process clause as a basis for compelling the government to disclose documents to them. Petitioners' reliance upon Brady v. Maryland, 373 U.S. 83 (1963), is similarly unavailing. Petitioners are not charged with any crime, nor are they in the position of having their liberty deprived at the hands of the government, such as the case with a defendant charged with committing a crime. Petitioners rely upon three cases, which they claim demonstrate the application of Brady outside the criminal context. D.E. 226 at IS. In Demjanjuk v. Petrovskv, 10 F.3d 338 (6th Cir. 1993), the Sixth Circuit observed: We believe Brady should be extended to cover denaturalization and extradition cases where the government seeks denaturalization or extradition based on proof of alleged criminal activities of the party proceeded against. If the government had sought to denaturalize Demjanjuk only on the basis of his misrepresentation at the time he sought admission to the United 9 EFTA00179793

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 10 of 12 States and subsequently when he applied for citizenship, it would have been only a civil action. kl at 353. Demjaqjuk has no application to this case since the government does not seek to deprive petitioners of their United States citizenship, or anything else. The Sixth Circuit found Brady should apply because of two factors. First, the government was seeking to denaturalize Demjanjuk. Second, it was seeking to do so on the ground that Demjanjuk engaged in criminal activities. The appellate court's specific focus on the government's reliance upon Demjanjuk's participation in criminal activities, demonstrates that was the legal basis for its finding that Brady applied. Their reference to the denaturalization case being "only a civil action," if the government had relied solely upon Demjanjuk's misrepresentations, suggests that seeking to denaturalize, without an allegation of criminal activity, would not be a sufficient basis for applying Brady. Similarly, in U.S. v. Edwards, 777 F.Supp.2d 985 (E.D.N.C. 2011), the government was seeking to civilly commit Edwards for being a "sexually dangerous person" under 18 U.S.C. § 4248(a). The district court found that Edwards had a liberty interest in avoiding detention and civil commitment. L at 990. Consequently, the due process clause was implicated because the government was seeking to deprive Edwards of a liberty interest in avoiding detention. In this case, the government does not seek to deprive petitioners of anything. The third case cited by petitioners is EEOC v. Los Alamos Constructors. Inc., 382 F.Supp. 1373 (D.N.M. 1974). The district court's analysis of the due process issue is contained in one sentence in the following footnote: "Brady v. Maryland (1963) 373 U.S. 83.83 S.Ct. 1194. 10 L.Ed.2d 215, orders that exculpatory information must be furnished a defendant in a criminal case. A defendant in a civil case brought by the government should be afforded no less due process of law." a at 1383 n.5. This is no authority for petitioner's due process argument 10 EFTA00179794

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 11 of 12 since there is no analysis of whether a protected life, liberty, or property interest is implicated by the government's actions. Moreover, by its own terms, this district court decision is inapplicable because petitioners are not defendants in a civil case brought by the government. CONCLUSION Petitioners' renewed motion should be denied. The privilege log provided by the government adequately describes the documents for which privileges are being asserted. Further, there is no fiduciary exception to the attorney-client privilege invoked by the government, nor is there any due process right to documents provided in the CVRA. DATED: September 3, 2013 Respectfully submitted, WILFREDO A. FERRER UNITED STATES ATTORNEY By: ILDexter A. Lee DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4th Street, Suite 300 Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: [email protected] ATTORNEY FOR RESPONDENT CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 3, 2013, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney SERVICE LIST 11 EFTA00179795

Case 9:08-cv-80736-KAM Document 230 Entered on FLSD Docket 09/03/2013 Page 12 of 12 Jane Does 1 and 2 v. United States, Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Bradley J. Edwards, Esq., Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Fax: (954) 524-2822 E-mail: [email protected] Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, Utah 84112 (801) 585-5202 Fax: (801) 585-6833 E-mail: [email protected] Attorneys for Jane Doe # 1 and Jane Doe # 2 Roy Black Jackie Perczek Black, Srebnick, Kornspan & Stumpf, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, Florida 33131 (305) 371-6421 Fax: (305) 358-2006 E-mail: rblacIctarovblack.com inerczekarovblack.com Attorneys for Intervenors 12 EFTA00179796