EFTA00594193.pdf

Filing # 33695105 E-Filed 10/26/2015 05:26:19 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 15-000072 BRADLEY J. EDWARDS and PAUL G. CASSELL, Plaintiffs/Counterclaim Defendants, vs. ALAN M. DERSHOWITZ, Defendant/Counterclaim Plaintiff. DEFENDANT/COUNTERCLAIM PLAINTIFF ALAN M. DERSHOWITZ'S SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO BOLES SCHILLER & FLEXNER LLP'S MOTION TO QUASH OR FOR PROTECTIVE ORDER Defendant/Counterclaim Plaintiff Alan M. Dershowitz ("Dershowitz") respectfully submits this Supplemental Memorandum in Opposition to the Motion to Quash or for Protective Order Regarding Subpoena (the "Motion to Quash") filed by non-party Boies Schiller & Flexner LLP ("BSF"). On September 21, 2015, BSF's client in this case — who initially purported to proceed before this Court under the pseudonym "Jane Doe No. 3" — filed a lawsuit captioned v. Ghislaine Maxwell, Case No. 15-cv-07433 (S.D.N.Y.) (the "Maxwell Action"). A copy of the complaint in the Maxwell Action is attached as Exhibit A. By publicly filing the complaint in the Maxwell Action in her own name, (S') voluntarily EFTA00594193 chose to identify herself and therefore no longer has any plausible argument that she should be permitted to proceed anonymously, either in this defamation action or otherwise.' public allegations in the Maxwell Action — in which BSF is representing — also render moot BSF's argument that it should be relieved of having to produce documents in this case based on privacy rights. alleges in her complaint in the Maxwell Action that she was sexually abused and sexually trafficked by Jeffrey Epstein ("Epstein") and Ghislaine Maxwell ("Maxwell") between 1999 and 2002. See generally Exhibit A. further alleges that Maxwell defamed her by disputing account of this time period. See id. The subpoena served upon BSF in this case seeks the production of documents that support false and gratuitous allegations that she was abused by Dershowitz on multiple occasions during the time period she was purportedly a "sex slave." As one example, the subpoena seeks diaries, cell phone records, and travel records for the period of 1999 to 2002, all of which could contain information that is relevant to accounts of sexual abuse and sexual trafficking. In other words, the subpoena seeks discovery relating to the very same allegations that placed at issue by publicly filing the Maxwell Action. In BSF's Motion to Quash, the law firm seeks an order from the Court that quashes the subpoena in its entirety or, in the alternative, substantially limits the scope of the documents that must be provided. Among other arguments, BSF contends that Dershowitz is "abusing the subpoena power" by asking the law firm to produce "highly personal and sensitive information As set forth in Dershowitz's Memorandum in Opposition to the Motion to Quash, chose to identify herself publicly even before she filed the Maxwell Action. Moreover, at a recent public deposition in this case, given name was used on multiple occasions in the presence of her counsel, who did not raise any objection. 2 EFTA00594194 from a victim of sexual trafficking" and "personal financial information" about its client, in violation of "privacy rights." Motion to Quash, at 8. As explained in detail in Dershowitz's Opposition to the Motion to Quash (the "Opposition") as well as Dershowitz's memoranda in opposition to Motion to Quash or for Protective Order, BSF's assertions of "privacy" and "confidentiality" lacked any valid basis at the time the firm filed the Motion to Quash. At that point, had already made several detailed, public statements about her self-described time as Epstein's "sex slave." By filing the Maxwell Action, has now also placed her allegations of sexual abuse and sexual trafficking directly at issue in a public litigation where she is seeking monetary recovery. BSF thus lacks any support to assert that the very same matters are somehow "highly personal," "sensitive," or "confidential" for purposes of this defamation action. Motion to Quash, at 8. Separate and apart from filing of the Maxwell Action, Plaintiffs Paul Cassell and Bradley Edwards (together, "Plaintiffs") deposed Dershowitz in this action on October 15 and 16, 2015. Plaintiffs' counsel inquired in detail about the truth of allegations that she had sex with Dershowitz on multiple occasions when she was a minor. In pursuing this line of questioning, Plaintiffs' counsel relied on documents that were not available at the time when they filed the initial pleading asserting false and outrageous allegations against Dershowitz. This questioning shows that — contrary to BSF's assertions in the Motion to Quash — the subpoena issued to BSF seeks documents that are directly relevant to this lawsuit. Dershowitz must be permitted to test the veracity of allegations against him. For the reasons set forth above and in his Opposition, Dershowitz respectfully requests that the Court enter an order that (I) denies BSF's request to quash the subpoena issued by Dershowitz; and (2) denies BSF's request for a protective order that would modify the subpoena. 3 EFTA00594195 Respectfully submitted, /s/ Thomas E. Scott Thomas E. Scott, Esq. Florida Ba - bk)ii00 Steven R. Safra, Esq. Florida Bar No. 057028 COLE, SCOTT & KISSANE, P.A. Dadeland Centre II, 14th floor 9150 South Dadeland Boulevard Miami, Florida 33156 Phone: Fax: Richard A. Sim son ro hac vice) M E. Bo 'a ro hac vice) Asl , E. Eiler1.1ac vice) WILEY REIN LLP 1776 K Street, NW Washin ton DC 20006 Phone: Fax: Counsel for Alan M. Dershowitz 4 EFTA00594196 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by electronic mail (email) at email address: to: Jack Scarola, Esq, Searcy Denney Scarola Bamhart & Shipley, P.A., Counsel for Plaintiff, 2139 Palm Beach Lakes Blvd., West Palm Beach, Florida 33409, and I electronically filed the foregoing with the Clerk of Broward County by using the Florida Courts eFiling Portal this 261° day of October, 2015 . By: s/Thomas E. Scott THOMAS E. SCOTT FBN: 149100 5 EFTA00594197 EXHIBIT A EFTA00594198 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 1 of 12 United States District Court Southern District of New York Plaintiff, CASE NO: v. GHISLAINE MAXWELL, Defendant. COMPLAINT Boles Schiller & Flexner LLP 575 Lexington Avenue New York. NY 10022 EFTA00594199 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 2 of 12 Plaintiff, e, formerly known as for her Complaint against Defendant, GHISLAINE MAXWELL ("Maxwell"), avers upon personal knowledge as to her own acts and status and otherwise upon information and belief: NATURE OF THE ACTION 1. This suit arises out of Defendant Maxwell's defamatory statements against Plaintiff As described below, was a victim of sexual trafficking and abuse while she was a minor child. Defendant Maxwell not only facilitated that sexual abuse but, most recently, wrongfully subjected to public ridicule, contempt and disgrace by, among other things, calling a liar in published statements with the malicious intent of discrediting and further damaging worldwide. JURISDICTION AND VENUE 2. This is an action for damages in an amount in excess of the minimum jurisdictional limits of this Court. 3. This Court has jurisdiction over this dispute pursuant to 28 U.S.C. §1332 (diversity jurisdiction) as and Maxwell are citizens of different states and the amount in controversy exceeds seventy-five thousand ($75,000), exclusive of interest and costs. 4. This Court has personal jurisdiction over Maxwell. Maxwell resides in New York City, and this action arose, and defamatory statements were made, within the Southern District of New York. 5. Venue is proper in this Court as the cause of action arose within the jurisdiction of this Court. 2 EFTA00594200 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 3 of 12 PARTIES. 6. Plaintiff is an individual who is a citizen of the State of Colorado. 7. Defendant Maxwell, who is domiciled in the Southern District of New York, is not a citizen of the state of Colorado. FACTUAL ALLEGATIONS 8. became a victim of sex trafficking and repeated sexual abuse after being recruited by Ghislaine Maxwell and Jeffrey Epstein when was under the age of eighteen. 9. Between 1999 and 2002, with the assistance and participation of Maxwell, Epstein sexually abused at numerous locations including his mansions in West Palm Beach, Florida, and in this District. Between 2001 and 2007, with the assistance of numerous co-conspirators, Epstein abused more than thirty (30) minor underage girls, a fact confirmed by state and federal law enforcement. 10. As part of their sex trafficking efforts, Epstein and Maxwell intimidated into remaining silent about what had happened to her. 11. In September 2007, Epstein entered into a Non-Prosecution Agreement ("NPA") that barred his prosecution for numerous federal sex crimes in the Southern District of Florida. 12. In the NPA, the United States additionally agreed that it would not institute any federal criminal charges against any potential co-conspirators of Epstein. 13. As a co-conspirator of Epstein, Maxwell was consequently granted immunity in the Southern District of Florida through the NPA. 14. Epstein ultimately pled guilty to procuring a minor for prostitution, and is now a registered sex offender. 3 EFTA00594201 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 4 of 12 15. Rather than confer with the victims about the NPA, the U.S. Attorney's Office and Epstein agreed to a "confidentiality" provision in the Agreement barring its disclosure to anyone—including Epstein's victims. As a consequence, the victims were not told about the NPA. 16. On July 7, 2008, a young woman identified as Jane Doe No. 1, one of Jeffrey Epstein's victims (other than a), filed a petition to enforce her rights under the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. II 3771, alleging that the Government failed to provide her the rights promised in the CVRA with regard to the plea arrangement with Epstein. The litigation remains ongoing. 17. On or about May 4, 2009, aidentified then as Jane Doe No. 102—filed a complaint against Jeffrey Epstein in the United States District Court for the Southern District of Florida. The complaint included allegations made by that pertained to Maxwell. 18. In pertinent part, the Jane Doe No. 102 complaint described in detail how Maxwell recruited (who was then a minor girl) to become a victim of sex trafficking by introducing to Jeffrey Epstein. With the assistance of Maxwell, Epstein was able to sexually abuse for years until eventually escaped. 19. The Jane Doe No. 102 complaint contained the first public allegations made on behalf of regarding Maxwell. 20. As civil litigation against Epstein moved forward on behalf of and many other similarly-situated victims, Maxwell was served with a subpoena for deposition. Her testimony was sought concerning her personal knowledge and role in Epstein's abuse of and others. 4 EFTA00594202 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 5 of 12 21. To avoid her deposition, Maxwell claimed that her mother fell deathly ill and that consequently she was leaving the United States for London with no plans of ever returning. In fact, however, within weeks of using that excuse to avoid testifying, Maxwell had returned to New York. 22. In 2011, two FBI agents located in Australia—where she had been hiding from Epstein and Maxwell for several years—and arranged to meet with her at the U.S. Consulate in Sidney. provided truthful and accurate information to the FBI about Epstein and Maxwell's sexual abuse. 23. Ultimately, as a mother and one of Epstein's many victims, believed that she should speak out about her sexual abuse experiences in hopes of helping others who had also suffered from sexual trafficking and abuse. 24. On December 23, 2014, incorporated an organization called Victims Refuse Silence, Inc., a Florida not-for-profit corporation. 25. intended Victims Refuse Silence to change and improve the fight against sexual abuse and human trafficking. The goal of her organization was, and continues to be, to help survivors surmount the shame, silence, and intimidation typically experienced by victims of sexual abuse. has now dedicated her professional life to helping victims of sex trafficking. 26. On December 30, 2014, moved to join the on-going litigation previously filed by Jane Doe I in the Southern District of Florida challenging Epstein's non-prosecution agreement by filing her own joinder motion. 5 EFTA00594203 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 6 of 12 27. motion described Maxwell's role as one of the main women who Epstein used to procure under-aged girls for sexual activities and a primary co-conspirator and participant in his sexual abuse and sex trafficking scheme. 28. In January, 2015, Maxwell undertook a concerted and malicious campaign to discredit and to so damage her reputation that factual reporting of what had happened to her would not be credited. 29. As part of Maxwell's campaign she directed her agent, Ross Gow, to attack honesty and truthfulness and to accuse of lying. 30. On or about January 3, 2015, speaking through her authorized agent, Maxwell issued an additional false statement to the media and public designed to maliciously discredit . That statement contained the following deliberate falsehoods: (a) That sworn allegations "against Ghislaine Maxwell are untrue." (b) That the allegations have been "shown to be untrue." (c) That "claims are obvious lies." 31. Maxwell's January 3, 2015, statement incorporated by reference "Ghislaine Maxwell's original response to the lies and defamatory claims remains the same," an earlier statement that had falsely described factual assertions as "entirely false" and "entirely untrue." 32. Maxwell made the same false and defamatory statements as set forth above, in the Southern District of New York and elsewhere in a deliberate effort to maliciously discredit and silence her efforts to expose sex crimes committed around the world by Maxwell, Epstein, and other powerful persons. Maxwell did so with the purpose and effect of having 6 EFTA00594204 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 7 of 12 others repeat such false and defamatory statements and thereby further damaged reputation. 33. Maxwell made her statements to discredit in close consultation with Epstein. Maxwell made her statements knowing full well they were false. 34. Maxwell made her statements maliciously as part of an effort to conceal sex trafficking crimes committed around the world by Maxwell, Epstein and other powerful persons. 35. Maxwell intended her false and defamatory statements set out above to be broadcast around the world and to intimidate and silence from making further efforts to expose sex crimes committed by Maxwell, Epstein, and other powerful persons. 36. Maxwell intended her false statements to be specific statements of fact, including a statement that she had not recruited an underage for Epstein's abuse. Maxwell's false statements were broadcast around the world and were reasonably understood by those who heard them to be specific factual claims by Maxwell that she had not helped Epstein recruit or sexually abuse and that was a liar. 37. On or about January 4, 2015, Maxwell continued her campaign to falsely and maliciously discredit . When a reporter on a Manhattan street asked Maxwell about allegations against Maxwell, she responded by saying: "I am referring to the statement that we made." The New York Daily News published a video of this response by Maxwell indicating that she made her false statements on East 65'h Street in Manhattan, New York, within the Southern District of New York. 7 EFTA00594205 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 8 of 12 COUNT I DEFAMATION I. Plaintiff re-alleges paragraphs 1 - 37 as if the same were fully set forth herein. Maxwell made her false and defamatory statements deliberately and maliciously with the intent to intimidate, discredit and defame 2. In January 2015, and thereafter, Maxwell intentionally and maliciously released to the press her false statements about in an attempt to destroy reputation and cause her to lose all credibility in her efforts to help victims of sex trafficking. 3. Maxwell additionally released to the press her false statements with knowledge that her words would dilute, discredit and neutralize public and private messages to sexual abuse victims and ultimately prevent from effectively providing assistance and advocacy on behalf of other victims of sex trafficking, or to expose her abusers. 4. Using her role as a powerful figure with powerful friends, Maxwell's statements were published internationally for the malicious purpose of further damaging a sexual abuse and sexual trafficking victim; to destroy reputation and credibility; to cause the world to disbelieve and to destroy efforts to use her experience to help others suffering as sex trafficking victims. 5. Maxwell, personally and through her authorized agent, Ross Gow, intentionally and maliciously made false and damaging statements of fact concerning =, as detailed above, in the Southern District of New York and elsewhere. 6. The false statements made by Gow were all made by him as Maxwell's authorized agent and were made with direct and actual authority from Maxwell as the principal. 8 EFTA00594206 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 9 of 12 7. The false statements that Maxwell made personally, and through her authorized agent Gow, not only called truthfulness and integrity into question, but also exposed to public hatred, contempt, ridicule, and disgrace. 8. Maxwell made her false statements knowing full well that they were completely false. Accordingly, she made her statements with actual and deliberate malice, the highest degree of awareness of falsity. 9. Maxwell's false statements constitute libel, as she knew that they were going to be transmitted in writing, widely disseminated on the internet and in print. Maxwell intended her false statements to be published by newspaper and other media outlets internationally, and they were, in fact, published globally, including within the Southern District of New York. 10. Maxwell's false statements constitute libel per se inasmuch as they exposed to public contempt, ridicule, aversion, and disgrace, and induced an evil opinion of her in the minds of right-thinking persons. I I. Maxwell's false statements also constitute libel per se inasmuch as they tended to injure in her professional capacity as the president of a non-profit corporation designed to help victims of sex trafficking, and inasmuch as they destroyed her credibility and reputation among members of the community that seeks her help and that she seeks to serve. 12. Maxwell's false statements directly stated and also implied that in speaking out against sex trafficking acted with fraud, dishonesty, and unfitness for the task. Maxwell's false statements directly and indirectly indicate that lied about being recruited by Maxwell and sexually abused by Epstein and Maxwell. Maxwell's false statements were reasonably understood by many persons who read her statements as conveying that specific intention and meaning. 9 EFTA00594207 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 10 of 12 13. Maxwell's false statements were reasonably understood by many persons who read those statements as making specific factual claims that was lying about specific facts. 14. Maxwell specifically directed her false statements at true public description of factual events, and many persons who read Maxwell's statements reasonably understood that those statements referred directly to account of her life as a young teenager with Maxwell and Epstein. 15. Maxwell intended her false statements to be widely published and disseminated on television, through newspapers, by word of mouth and on the intemet. As intended by Maxwell, her statements were published and disseminated around the world. 16. Maxwell coordinated her false statements with other media efforts made by Epstein and other powerful persons acting as Epstein's representatives and surrogates. Maxwell made and coordinated her statements in the Southern District of New York and elsewhere with the specific intent to amplify the defamatory effect those statements would have on reputation and credibility. 17. Maxwell made her false statements both directly and through agents who, with her general and specific authorization, adopted, distributed, and published the false statements on Maxwell's behalf. In addition, Maxwell and her authorized agents made false statements in reckless disregard of their truth or falsity and with malicious intent to destroy reputation and credibility; to prevent her from further disseminating her life story; and to cause persons hearing or reading descriptions of truthful facts to disbelieve her entirely. Maxwell made her false statements wantonly and with the specific intent to maliciously damage good name and reputation in a way that would destroy her efforts to administer her I0 EFTA00594208 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 11 of 12 non-profit foundation, or share her life story, and thereby help others who have suffered from sexual abuse. 18. As a result of Maxwell's campaign to spread false, discrediting and defamatory statements about suffered substantial damages in an amount to be proven at trial. 19. Maxwell's false statements have caused, and continue to cause, economic damage, psychological pain and suffering, mental anguish and emotional distress, and other direct and consequential damages and losses. 20. Maxwell's campaign to spread her false statements internationally was unusual and particularly egregious conduct. Maxwell sexually abused and helped Epstein to sexually abuse and then, in order to avoid having these crimes discovered, Maxwell wantonly and maliciously set out to falsely accuse, defame, and discredit . In so doing, Maxwell's efforts constituted a public wrong by deterring, damaging, and setting back efforts to help victims of sex trafficking. Accordingly, this is a case in which exemplary and punitive damages are appropriate. 21. Punitive and exemplary damages are necessary in this case to deter Maxwell and others from wantonly and maliciously using a campaign of lies to discredit and other victims of sex trafficking. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests judgment against Defendant Maxwell, awarding compensatory, consequential, exemplary, and punitive damages in an amount to be determined at trial, but in excess of the $75,000 jurisdictional requirement; costs of suit; attorneys' fees; and such other and further relief as the Court may deem just and proper. 11 EFTA00594209 Case 1:15-cv-07433 Document 1 Filed 09/21/15 Page 12 of 12 JURY DEMAND Plaintiff hereby demands a trial by jury on all causes of action asserted within this pleading. Dated September 21, 2015. /s/ David Boies David Boies Boies Schiller & Flexner LLP 333 Main Street Armonk, NY 10504 /s/ Sigrid McCawley Sigrid McCawley (Pro Hac Vice Pending) Boies Schiller & Flexner LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale. FL 33301 /s/ Ellen Brockman Ellen Brockman Boies Schiller & Flexner LLP 575 Lexington Ave New York, New York 10022 12 EFTA00594210