DOJ-OGR-00011463.jpg

Case 1:20-cr-00330-PAE Document 734 Filed 07/15/22 Page13 of 16 November 19, 2021 Page Thirteen United States v. Carton, No. 17 CR 680 (CM), 2018 WL 5818107, at *5 (S.D.N.Y. Oct. 19, 2018) (quashing subpoena seeking a “forbearance agreement,” citing Rule 408). The documents Maxwell seeks here fit within the exclusionary provisions of Rule 408.°! The documents sought—submissions to the EVCP, including claim forms; communications between the EVCP and the victims or their attorneys; records of payments; and releases— constitute evidence of either “furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim,” Fed. R. Evid. 408(a)(1), or “conduct or a statement made during compromise negotiations about the claim,” /d. 408(a)(2). The Protocol makes clear that by submitting a claim, “a Claimant is seeking to resolve all claims relating to allegations of sexual abuse against Epstein and/or the Estate, and related entities and individuals as set forth in the Release.”°” And it also makes that clear that “fall parties agree that they are using the services of a third-party administrator to help reach a resolution of individual claims of sexual abuse.”*? The Protocol provides that “this Program is entitled to confidentiality, privileges (mediation, settlement and all other pertinent privileges), >! Tt is true that, in 1996, the Second Circuit held that Rule 408 “does not require exclusion of evidence relating to a civil settlement in a criminal trial.” Manko v. United States, 87 F.3d 50, 51 (2d Cir. 1996). But in 2006, the rule was amended to make clear that it applies in that circumstance. As the Seventh Circuit has noted: “In 2006 the Supreme Court promulgated an amendment to Rule 408 demonstrating that at least the new version (which took effect on December 1, 2006) applies to criminal cases.” United States v. Roti, 484 F.3d 934, 936 (7th Cir. 2007); see 2006 advisory committee note to Rule 408 (noting “statements made during compromise negotiations of other disputed claims are not admissible in subsequent criminal litigation, when offered to prove liability for, invalidity of, or amount of those claims”); see also Fed. R. Evid. 1101(b) (rules of evidence apply in criminal proceedings). And the Second Circuit has since addressed the substance of a Rule 408 argument on a criminal appeal, without reference to Manko or to any possibility that Rule 408 was inapplicable in criminal cases. See United States v. Wahl, 563 F. App’x 45, 50-51 (2d Cir. 2014). >? Ex. D at 7 (Protocol). 3 Ex. D at 8 n.1 (Protocol). DOJ-OGR-00011463