EFTA00722655.pdf

Case 9:08-cv-80893-KAM Document 30 Entered on FLSD Docket 04/09/2009 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: 08-CIV-80893 - MARRA/JOHNSON JANE DOE, Plaintiff, v. JEFFREY EPSTEIN, Defendant. NOTICE OF CHANGE OF ADDRESS AND FIRM AFFILIATION Attorney Bradley J. Edwards, hereby provides this Notice of Change of Address and Firm Affiliation, and advises the Court and all parties that he has changed firms but will continue as counsel for Plaintiff in the above-styled cause. Plaintiff respectfully requests that the Court and all parties to this cause modify their databases to reflect the new firm name and the change of address, and further requests that copies of all papers, filings, correspondence, notices and other materials relating to the above-styled action be directed to him at his new firm. The new information is as follows: Bradley J. Edwards, Esq. ROTHSTEIN ROSENFELDT ADLER Telephone Facsimile Florida Bar No.: 542075 E-mail: GG5cc EFTA00722655 Case 9:08-cv-80893-KAM Document 30 Entered on FLSD Docket 04/09/2009 Page 2 of 3 Case No.: 08-CIV-80893 — MARRA/JOHNSON DATED: April 9, 2009 Respectfully Submitted, Plaintiff, by One of Her Counsel, s/ Bradley J. Edwards Bradley J. Edwards IN ROSENFELDT ADLER Telephone Facsimile Florida r N a.4 m E-mail: CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 9, 2009, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing is being served this day upon all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/ Bradley J. Edwards Bradley J. Edwards 2 EFTA00722656 Case 9:08-cv-80893-KAM Document 30 Entered on FLSD Docket 04/09/2009 Page 3 of 3 Case No.: 08-CIV-80893 - MARRA/JOHNSON SERVICE LIST Case No.: 08-CIV-80893 - MARRA/JOHNSON Attorneys for Defendant Robert Deweese Critton, Jr. rcrit@bcIclaw.com Michael James Plke Burman Critton Luttier & Coleman Lead Counsel Paul G. Cassell Jack Alan Goldberger Atterbury Goldberger & Weiss, P.A. Co-Counsel Attorneys for Plaintiff Bradley James Edwards Rothstein Rosenfeldt Adler Lead Counsel Pm Hac Vice Jay C. Howell Jay Howell & Associates PA 3 EFTA00722657 Barbara McKenna From: Sent: u ay, /;171TraftliTiTIMI:10 To: ftsd_cmecf Subject: Activity in Case t : • '41 v • - v. Epstein Notice (Other) This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court Southern District of Florida Notice of Electronic Filing The following transaction was entered by Edwards, Bradley on 4/9/2009 4:06 PM EDT and filed on 4/9/2009 Case Name: Doe v. Epstein Case Number: 9:08-cv-80893 https://ecf.fled.uscourts.gov/cgi-bin/DktRpt.p173199S6 Filer: Jane Doe Document Number: 30 Copy the UAL address from the line below into the location bar of your Web browser to view the document: Document: https://ecf.flsd.uscourts.gov/doc1/05106455542?magic_num=31827617 alde_seq_num=9S&caseid-319956 Docket Text: NOTICE by Jane Doe cI>of Change of Firm Affiliationc/I> (Edwards, Bradley) 9:08-cv-80893 Notice has been electronically mailed to: Bradley James Edwards Jack Alan Goldberger Michael James Pike Paul G. Cassell Robert Deweese Critton , Jr 9:08-cv-80893 Notice has not been delivered electronically to those listed below and will be provided by other means. For further assistance, please contact our Help Desk at 1- The following document(s) are associated with this transaction: Document description: Main Document Original filename: n/a Electronic document Stamp: [STAMP dcecfStamp_ID-1105629215 [Date=4/9/2009) [FileNumber=6221243-0) [5aa58230c6a69b4300ba7ecd9244alllad6504400dea777d8b3670688721707b2662adlc447d2ca266eb8426f 8ca0a6a0171,79cOafd687e19be466a8cd32ea351) EFTA00722658 Case 9:08-cv-80893-KAM Document 32 Entered on FLSD Docket 04/09/2009 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: 08-CIV-80893 - MARRA/JOHNSON JANE DOE, Plaintiff, v. JEFFREY EPSTEIN, Defendant. MOTION TO STRIKE REFERENCES TO NON-PROSECUTION AGREEMENT OR, IN THE ALTERNATIVE, TO LIFT PROTECTIVE ORDER BARRING JANE DOE'S ATTORNEY'S FROM REVEALING PROVISIONS IN THE AGREEMENT Plaintiff, Jane Doe, hereby moves this Court to strike all references to a "non- prosecution agreement" contained in defendant, Jeffrey Epstein's ("Epstein") Motion to Stay these proceedings. Under the Best Evidence Rule, Fed. R. Evid. 1002, and the principles underlying the rule, Epstein is required to produce the written agreement (or a copy thereof) rather than simply rely on his own summary representations about what the agreement provides. In the alternative, the Court should lift the protective order it has entered in parallel litigation that precludes Jane Doe's counsel from revealing in publicly-accessible pleadings the specific language in the non-prosecution agreement. In his motion to stay these proceedings, defendant Epstein has argued that he must invoke his Fifth Amendment rights lest he be found in violation of a non- prosecution agreement with the U.S. Attorney's Office. Indeed, his pleading makes a number of specific representations about the contents of that agreement. See, e.g, Epstein Motion to Stay at 3 (the non-prosecution agreement "outlines various obligations on the part of Epstein including, but not limited to, pleading guilty to the EFTA00722659 Case 9:08-cv-80893-KAM Document 32 Entered on FLSD Docket 04/09/2009 Page 2 of 6 Indictment and Information before the 15th Judicial Circuit, recommendations for his sentencing before the 15th Judicial Circuit, waiver of challenges to the Information filed by the SAO, waiver of right to appeal his conviction, . . . and the agreement to not prosecute others listed thereon so long as Epstein does not breach and fulfills the requirements of the NPA"). Epstein's pleading makes further representations about what is not contained in the agreement. See, e.g., id. (the non-prosecution agreement "does not outline or define . . . what constitutes a breach or what act of omission constitutes a breach thereof'). All references in his motion to the content of the non-prosecution agreement should be stricken. The Best Evidence Rule requires Epstein to produce the non- prosecution agreement itself to prove what the agreement says — not some second- hand summary. Federal Rule of Evidence 1002 directly provides: "To prove the content of a writing . . , the original writing . . . is required, except as otherwise provided in these rules or by Act of Congress.' The non-prosecution agreement is undoubtedly a *writing: See Epstein Motion to Stay at 2 (conceding this point). Moreover, it is obvious that Epstein is trying to prove its "content" in his motion to stay, as he is relying on various provisions within the agreement to make his case for a stay. As the moving party on his motion for a stay, he is therefore obligated to provide the best evidence of the written agreement — namely, a copy of the agreement itself. The rationales underlying the Best Evidence Rule clearly apply here. As two leading commentators have explained: The continuing existence of the Best Evidence Rule rests upon several considerations. First, writings occupy a central position in the law. The written word has special sanctity, justifying more stringent proof 2 EFTA00722660 Case 9:08-cv-80893-KAM Document 32 Entered on FLSD Docket 04/09/2009 Page 3 of 6 requirements. Second, when the contents of a writing are in issue, an y evidence other than the writing itself is distinctly inferior. Language is complex, and the slightest variation in wording can have enormous significance in determining the outcome of a legal dispute. Unless a writing is very short, it is beyond the power of most human memory to summarize the writing with the precision that is often needed in the courtroom. The burden on litigants of requiring them to introduce the writing if available is outweighed by the increased accuracy of the factfinding process. Third, production of the writing . . . ensures completeness and prevents any segments from being presented out of context. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 10.1 at p. 1067 (3d ed. 2003); see also Seiler it Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th Cir. 1986) ("when the terms are in dispute only the writing itself, or a true copy, provides reliable evidence"). Epstein is making some rather remarkable assertions about what the agreement provides (or fails to provide) and how it operates in practice, as Jane Doe explains at greater length in her accompanying response to his motion for a stay. To prove those assertions, Epstein should not be able to rely on his own inferences from provisions contained in the agreement — but rather should be required to provide the specific language supporting those inferences. In the alternative, if Epstein is allowed to make his own representation about the contents of the agreement, then Jane Doe should likewise be allowed to make her own representations about what the document provides. Jane Doe's undersigned attorneys have a copy of what is apparently the non-prosecution agreement. They obtained that agreement in parallel litigation under the Crime Victim's Rights Act. Doe v. United States, No. 9:08-CV-80736-KAM. The agreement, however, was provided to Jane Doe's counsel subject to a protective order. That protective order precludes Jane Doe's 3 EFTA00722661 Case 9:08-cv-80893-KAM Document 32 Entered on FLSD Docket 04/09/2009 Page 4 of 6 attorneys from revealing "the Agreement or its terms to any third party absent further court order " Protective Order, Doe v. United States, No. 9:08-CV-80736-KAM (dkt. #26) (Aug. 21, 2008). That Protective Order thus precludes Jane Doe from responding to Epstein's allegations in a publicly-filed motion because her response would necessarily involve disclosing the "terms" of the agreement. Jane Doe therefore requests the alternative relief of having the protective order lifted so that her attorney's can respond directly to Epstein's allegations about what the non-prosecution agreement provides.' if the protective order is lifted, Jane Doe would accordingly request an opportunity to file a supplemental pleading in opposition to the motion to stay to discuss those provisions. CONCLUSION For all these reasons, all references to the non-prosecution agreement in Epstein's motion for a stay should be stricken. In the alternative, the Court should lift its protective order and permit Jane Doe's counsel to file a supplemental response to the motion to stay discussing the specific provisions in the agreement. Because the United States may have an interest in this motion, a copy of the motion is being served on the U.S. Attorney's Office for the Southern District of Florida. DATED: April 9.2009 Lifting the protective order may be useful for other reasons as well. For example, Jane Doe intends to question Epstein about the terms of the non•prosecution agreement at his upcoming deposition. If the protective order remains in place, Jane Doe may be required to proceed cumbersomely by first have Epstein reveal the provisions of the agreement and then asking about the provisions. Because only the narrow issue of the motion to stay is currently before the Court, Jane Doe has confined her arguments to that Issue. Jane Doe reserves her right to file an appropriate motion at the appropriate time for release of the non-prosecution agreement on other grounds. 4 EFTA00722662 Case 9:08-cv-80893-KAM Document 32 Entered on FLSD Docket 04/09/2009 Page 5 of 6 Respectfully Submitted. Plaintiff, by One of Her Counsel, s/ Bradley J. Edwards Bradley J. Edwards ROTHSTEIN ROSENFELDT ADLER Telephone Facsimile Florida Bar No.: 542075 E-mail: CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 9, 2009, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing is being served this day upon all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/ Bradley J. Edwards Bradley J. Edwards 5 EFTA00722663 Case 9:08-cv-80893-KAM Document 32 Entered on FLSD Docket 04/09/2009 Page 6 of 6 SERVICE LIST Case No.: 08-CIV-80893 — MARRA/JOHNSON Attorneys for Defendant Robert Deweese Critton, Jr. Michael James Pike Burman ritton L filer & Coleman (fax) Lead Counsel Co-Counsel Attorney for United States A. Marie Villafatia Assistant U.S. Attorney U.S. Attorney's Office [VIA US MAIL] Telephone: Facsimile: Attorneys for Plaintiff Bradley James Edwards Rothstein Rosenfeldt Adler fax Lead Counsel Pro Hac Vico Jay C. Howell Jay Howell & Associates PA 6 EFTA00722664 Barbara McKenna From: Sent: Thursday, To: flsd_cfneci Subject: Activity in Case v. Epstein Motion to Strike This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court Southern District of Florida Notice of Electronic Filing The following transaction was entered by Edwards, Bradley on 4/9/2009 4:20 PM EDT and filed on 4/9/2009 Case Name: Doe v. Epstein Case Number: 9:08-cv-80893 https://ecf.fled.uscourts.gov/cgi-bin/OktRpt.p17319956 Filer: Jane Doe Document Number: 32 Copy the URL address from the line below into the location bar of your Web browser to view the document: Document: https://ecf.flsd.uscourts.gov/doc1/05106455650?magic_num=54962829 &de_seq_num.1046caseid.319956 Docket Text: MOTION to Strike <I>Reference to Non Prosecution Agreementc/I> by Jane Doe. Responses due by 4/27/2009 (Edwards, Bradley) 9:08-cv-80893 Notice has been electronically mailed to: Bradley James Edwards Jack Alan Goldberger Michael James Pike Paul G. Cassell Robert Deweese Critton , Jr 9:08-cv-80893 Notice has not been delivered electronically to those listed below and will be rovided other means. For further assistance, please contact our Help Desk at 1- The following document(s) are associated with this transaction: Document description: Main Document Original filename: n/a Electronic document Stamp: (STAMP dcecfStamp_IDs1105629215 (Datea4/9/2009) (FileNumber.6221330-0) (55740b24994d76c0e5b0796c7374288379beffelbe80edldc48cdfd86a57b6a7c7262c29658671b3b8ablcfb8 2184e8819597fc66c19f26423b37d18be3b19e9)) 1 EFTA00722665 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: 08-CIV-80893 - MARRA/JOHNSON JANE DOE, Plaintiff, v. JEFFREY EPSTEIN, Defendant. PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO STAY COMPLAINT Plaintiff, Jane Doe, hereby responds to the motion by defendant Jeffrey Epstein ("Epstein") to stay this action until late 2010. The motion for a stay should be denied. Defendant has not carried his heavy burden of justifying a stay in the action. A stay pending resolution of a related criminal prosecution is proper only when "special circumstances so require in the interests of justice." United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359, 364 (11th Cir. 1994) (internal quotations omitted). Of course, "The proponent of a stay bears the burden of establishing its need: Clinton v. Jones, 520 U.S. 681, 708 (1997). To stay a civil action in light of criminal proceedings, "a party bears the heavy burden of demonstrating that there would be a clear case of hardship if a stay did not issue." GLL GmbH & Co. Messeturm KG v. La Vecchia, 247 F.R.D. 231, 233 (D. Me. 2008) (internal quotations omitted). Epstein's motion fails for at least three reasons. First, Epstein has failed to show that any criminal charges are pending against him. Second, there are no special circumstances here justifying a stay. And third, the interests of justice strongly weigh Cc- EFTA00722666 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 2 of 14 against any stay -- particularly since it involves allegations of serious sexual abuse against a minor. I. EPSTEIN IS NOT FACING PENDING CRIMINAL CHARGES AGAINST HIM RELATED TO JANE DOE. Epstein's initial burden is to show some sort of risk of criminal prosecution that could potentially justify staying this civil action. Ordinarily a party will attempt to show this fact by pointing to an indictment on parallel criminal charges. "A defendant's privilege against self-incrimination is a factor favoring a stay only after that defendant has been indicted." United States ex rel. Gonzalez v. Fresenius Medical Cam North America, 571 F.Supp.2d 758, 763 (W.D. Tex. 2008) (internal quotation omitted) (emphasis added). See, e.g., Ventura v. Brosky, 2006 WL 3392207 (S.D. Fla. 2006) (granting a stay of civil proceedings where civil defendant was incarcerated and awaiting trial on parallel criminal charges). Here Epstein has not been indicted for crimes involving plaintiff Jane Doe, so he is unable to even begin to establish the need for a stay. There simply are not any parallel criminal charges in existence at that this time. Epstein desperately attempts to carry his burden by alleging that there exists a non-prosecution agreement that has been entered in this case and that he is at risk of being found to have violated that agreement. This does not carry his burden. If the non-prosecution agreement were to magically disappear tomorrow, that would hardly put in place a criminal prosecution of Epstein for sexual abuse by Jane Doe. All that would do is permit the U.S. Attorney's Office, if it so chose, to pursue a criminal prosecution. In other words, today there is — at most — a risk of a potential criminal 2 EFTA00722667 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 3 of 14 prosecution at some point down the road. And, of course, it is a matter of public record that several dozen girls have alleged that Epstein sexually abused him. Even if the U.S. Attorney's Office were to decide at some point down the road that it was going to exercise its discretion In favor of Initiating some sort of criminal process against Epstein, it is a matter of speculation whether that criminal process would involve allegations concerning Jane Doe. Such risk and speculation about possible criminal charges does not establish a real need for a stay. See Securities and Exchange Commission v. Dresser Industries, Inc., 628 F.2d 1368, 1376 (D.C. Cir. 1980) (refusing to grant a stay a civil proceeding before any indictment was returned because Fifth Amendment concerns, if any, were weak). Not only has Epstein failed to show the existence of a criminal prosecution, he has also failed to even attach a copy of the non-prosecution agreement that serves as the predicate for all his arguments. As Jane Doe explains in her simultaneously filed motion to strike, the Court should strike all references to the contents of the agreement because of the Best Evidence Rule, Fed. R. Evid. 1002, and the principles underlying the rule. If Epstein wants to prove that a document exists with particular language that is creating difficulties for him, he should at a bare minimum be required to produce to the Court — and to Jane Doe — a copy of the document in question. Epstein, of course, bears the burden of proving the alleged need for the stay, and therefore should have to shoulder the burden of proving the terms of any document that bear on the motion to stay. The need for Epstein to produce the actual non-prosecution agreement is particularly strong in this case. As the Court is aware from parallel litigation, there are 3 EFTA00722668 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 4 of 14 conflicting representations about precisely what the non-prosecution provides. See Respondent's Opp. to Victims' Motion to Unseal Non-Prosecution Agreement at 4, Doe v. United States, No. 9:08-CV-80736-KAM (Feb. 12, 2009) (dkt. #29) ("During the telephonic hearing on August 14, 2008, Government counsel advised the Court and petitioners' counsel that there was an ongoing dispute between the Government and Epstein's attorneys over what constituted the Agreement."). Therefore, it is not standing on mere technicalities to require Epstein to prove what the agreement states by producing the agreement itself. In addition, it is simply unfair for Epstein to use the alleged confidentiality of a document to avoid his duty to produce the document. The confidentiality of the non- prosecution agreement apparently stems from the fact that he himself requested that the U.S. Attorney's Office treat the document as confidential. Moreover, despite the alleged confidentiality of the document, Epstein apparently feels free to make various representations about what that sealed agreement provides — when it is useful to him to do so. For example, in his motion for a stay Epstein states such things as "the [non- prosecution agreement] actually places an affirmative duty upon Epstein to undertake discussions with the [State's Attorney's Office)" and that it "took effect on June 30, 2008 and expires by those same terms in late 2010 so long as Epstein complies with the terms and conditions" and that it "outlines various obligations on the part of Epstein including, but not limited, to pleading guilty to the Indictment and Information before the 15th Judicial Circuit . . [and] waiv[ing] . . challenges to the Information filed by the [State's Attomey's Office]." Epstein Motion for Stay at 3. How Epstein can maintain 4 EFTA00722669 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 5 of 14 that the document is confidential and "under seal" while simultaneously making such direct statements about the terms of the agreement is not immediately clear. Even assuming the existence of a non-prosecution agreement, Epstein's motion for a stay should be denied because of failure to prove the outlandish assertions in his motion. To show a risk of prosecution, Epstein states that the non-prosecution agreement "does not outline or define . . . what constitutes a breath or what act or omission constitutes a breach thereof. Therefore, the [U.S. Attorney's Office) apparently believe it has the discretion to make the unwritten and undefined determination, which places an unreasonable burden upon Epstein in defending the civil claims in that he has no idea what the USAO will define as a breach in the event he does not assert his 5th Amendment rights? Epstein Motion to Stay at 2. Epstein goes on to state: 'As an example, the USAO has already claimed that Epstein violated the [non-prosecution agreement) by: 1. Investigating the Plaintiffs (by and through his attorneys) whom brought civil suits against him for purposes of defending those civil actions; 2. Contesting damages in this action and in the other civil actions; 3. Making statements to the press about this Plaintiff or other Plaintiffs by and through his attorneys; and 4. Using the word jail" instead of "imprisonment" in the plea agreement with SA's office. " td. at 2-3. These are extremely serious allegations. If true, they would mean that the U.S. Attorney's Office has threatened to Imprison Epstein simply for conducting an investigation to defend a civil suit or using one word instead of another in a document. The alleged factual support for these serious allegations, however, evaporates on examination. Support purportedly comes from an attached affidavit by one of Epstein's 5 EFTA00722670 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 6 of 14 criminal defense attorneys, Jack Goldberger. Not surprisingly given the seriousness of such allegations, the Goldberger affidavit makes no such contention. Instead, the Goldberger affidavit is carefully worded to assert only that the U.S. Attorney's Office "might consider various actions to be a breach of the non-prosecution agreement. See Affidavit of Jack A. Goldberger, Esq., at 2 (emphasis added).' This is a far cry from what Epstein's motion to stay asserts — that "the USAO has already claimed that Epstein violated the NPA . . ." Epstein Motion to Stay at 3 (emphasis added). Accordingly, Epstein has not even shown that the U.S. Attorney's Office has already deemed him to be in violation of the agreement — much less that, because of such violation, it would elect to file criminal charges against him pertaining to Jane Doe. In addition to all these problems, Epstein is simply wrong to allege that the U.S. Attorney's Office has unilateral power to deem him to be in violation of the non- prosecution agreement. Any such determination would be subject to judicial review. Only after a court determination that Epstein had violated the agreement could the U.S. Attorney's Office move forward to prosecute Epstein. See generally Santobello v. New York, 404 U.S. 257 (1971). Finally and most fundamentally, Epstein has it entirely within his power to avoid criminal prosecution by complying with non-prosecution agreement. As this Court explained in a companion case in denying a request for a stay: "Defendant is in control of his own destiny — it is up to him (and him alone) whether the plea agreement reached As with Epstein's objectionable representations about the non-prosecution agreement, to the extent that Epstein is making representations about any written communications from the U.S. Attorney's Office, the Best Evidence Rule requires that he produce those writings (or a copy thereof). See Fed. R. Evid. 1002. Jane Doe objects to any second-hand recounting of written communications that Epstein has received. Epstein should disclose in any reply memorandum whether there has been any written correspondence from the U.S. Attorney's Office about his compliance with the plea agreement and, if so, he should attach copies of that correspondence to his reply. 6 EFTA00722671 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 7 of 14 with the State of Florida is breached. If Defendant does not breach the agreement, then he should have no concerns regarding his Fifth Amendment right against self- incrimination." Order Denying Motion to Stay at 4, Jane Doe No. 2 v. Epstein, No. 9:08- CV-80119-KAM (dkt. #33) (S.D. Fla. August 5, 2008). Epstein is currently in jail, and is released only for work release purposes. So long as he complies with the non- prosecution agreement while under this close court supervision, any concern about possible future consequences stemming from the breach of that agreement is speculative and premature. Indeed, even if the Defendant chose to violate the non-prosecution agreement, that would hardly serve as a basis for staying the criminal cases. Allowing Epstein himself to dictate the pace of this civil case by the simple expedient of violating his agreement and then demanding a stay would truly give perverse incentives. Epstein should not, for example, be able to commit a new crime and then argue — because he is a repeat offender — that he is entitled to stop all civil suits against him for sexual abuse he committed in the past. For all these reasons, Epstein has failed to carry his burden of proving that a criminal prosecution is currently pending against him that would provide a basis for a stay. II. NO "SPECIAL CIRCUMSTANCES" JUSTIFY A STAY. Even if Epstein could demonstrate a currently pending criminal action, his request for a stay should still be denied. "'A stay of a civil proceeding during the pendency of a parallel criminal proceeding . . . contemplates 'special circumstances' and the need to avoid 'substantial and irreparable prejudice.'" United States ex rel. 7 EFTA00722672 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 8 of 14 Gonzalez v. Fresenius Medical Care North America, 571 F.Supp.2d 758, 761 (W.D. Tex. 2008) (quoting United States v. Little Al, 712 F.2d 133, 136 (5th Cir. 1983). Epstein has not shown "special circumstances" and "substantial and irreparable prejudice that would justify a stay. Epstein alleges that "special circumstances" exist here because he is at "risk' of losing the civil case that is filed against him. Epstein Motion to Stay at 4. But Epstein should be required to explain more fully what exactly he means by a "risk" of losing the civil suit — and prove that it is something other than mere conjecture. His motion seems to be cagily drafted so that if he loses this motion for a stay and successfully invokes his Fifth Amendment rights, he will still be able to challenge any summary judgment motion that Jane Doe may choose to file. But so long as Epstein has other avenues for contesting a summary judgment motion, then 'substantial and irreparable prejudice" does not exist and the Court should not exercise discretion to grant the stay.2 A good illustration of judicial reluctance to stay cases such as this one comes from the Eleventh Circuit's decision in United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359, 364 (11th Cir. 1994). There, the Eleventh Circuit affirmed a district court's decision not to stay a civil forfeiture proceeding because the claimant "had not shown that her invocation of the [Fifth Amendment] privilege resulted in the civil forfeiture judgment against her." The Circuit explained that she could have called other witnesses to attempt to prove her position: "Claimant's failure to indicate with 2 The critical question on the stay is whether Epstein has other avenues to contest liability, not whether his arguments will ultimately be successful. To be clear, even if Epstein does contest a summary judgment motion down the road with testimony from other persons, Jane Doe may well decide to argue that this other testimony does not sufficiently respond to the points on which she is seeking summary judgment and that summary judgment is thus appropriate. 8 EFTA00722673 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 9 of 14 precision why she did not use other parties' testimony to substantiate her defense was fatal. As a result, Claimant's basis for a stay was nothing more than a blanket assertion of the privilege against self-incrimination, which, as discussed, is an inadequate basis for a stay." td. In addition, Epstein has not stated clearly that any Fifth Amendment invocation is preventing him from presenting evidence contesting liability. Here again, Epstein's motion is cagily worded to dance around the critical point. Epstein states: "Once the non-prosecution agreement expires, Epstein fully intends to testify to all relevant and non-objectionable inquiries made to him in discovery . . . ." Epstein Motion to Stay at 4. But what will his testimony be? Unless he is going to deny having sexual interactions with Jane Doe, then his promised testimony down the road will not effectively dispute liability — and there is no reason to stay the case for a year-and-a-half on a peripheral point. It is the rule, rather than the exception that civil and criminal cases proceed together." United States ex reL Gonzalez v. Fresenius Medical Care North America, 571 F.Supp.2d 758, 761 (W.D. Tex. 2008) (internal quotation omitted). Epstein has shown no good reason for deviating from normal practice here. One last reason weighing against a stay is that Epstein has not shown that his (apparently blanket) invocation of Fifth Amendment right will be sustained. Among other problems, any blanket invocation would lack the particularization required for a valid assertion of Fifth Amendment rights. It is for the Court, not the claimant, to determine whether the hazard of incrimination justifies invocation of the privilege. See United States v. Argomanlz, 925 F.2d 1349, 1355 (11th Cir. 1991). "A court must make a particularized inquiry, deciding, in connection with each specific area that the 9 EFTA00722674 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 10 of 14 questioning party wishes to explore, whether or not the privilege is well-founded? Id. Typically this is done in an in camera proceeding wherein the person asserting the privilege must "substantiate his claims of the privilege and the district court is able to consider the questions asked and the documents requested . . . ." Id. Here Epstein has made sweeping generalizations about the applicability of the Fifth Amendment to Jane Doe's specific discovery requests. But in his motion, he has merely cobbled together a few grandiose quotations about general Fifth Amendment principles and then asserted that any discovery against him is Invalid. The Fifth Amendment does not operate in this blunderbuss fashion. It is Epstein's obligation to establish his privilege on a "question-by-question" basis? Id. Until he carries that burden, he has not even established that the Fifth Amendment invocations he apparently seeks to make will be sustained. III. THE INTERESTS OF JUSTICE STRONGLY WEIGH AGAINST ANY STAY. Even if Epstein shows some burden to him from the case moving forward, a stay remains inappropriate unless the interests of justice tip decisively in favor of a stay. "[Title suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to someone else." Landis v. North American Co., 299 U.S. 248, 255 (1936). A civil defendant who asserts the Fifth Amendment privilege "may have to accept certain bad consequences that flow from that action? Mid-America's Process Serv. v. Ellison, 767 F.2d 684, 686 (10th Cir. 1985). 10 EFTA00722675 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 11 of 14 Here a stay would significantly harm Jane Doe in several ways. First and most obviously, a stay would cause serious emotional trauma to Jane Doe by delaying final resolution of this case — a case involving her efforts to obtain compensation for sexual abuse committed against her when she was a minor. The very nature of the allegations makes it obvious that Jane Doe would like to have the matter resolved as quickly as possible, so that she can finally put those painful events behind her. A delay of the matter for an additional year-and-a-half would delay any possibility of psychiatric closure on this chapter In her life. Second, a stay of these proceedings for a lengthy period of time would delay Jane Doe's ability to recover for the injuries inflicted by Epstein. In general, "The compensation and remedy due a civil plaintiff should not be delayed." Gordon v. FDIC, 427 F.2d 578, 580 (D.C. Cir. 1970). Epstein has not discussed Jane Doe's interest in prompt compensation — much less demonstrated that his alleged interests in a stay somehow outweigh her interest in having this matter brought to a conclusion. Third, a stay would block Jane Doe from conducting Important discovery in this matter. Delaying discovery means that memories may fade and the evidence may be lost. "In a civil case, there is a strong presumption in favor of discovery, and the [movanti must overcome the presumption in its request for a stay." United States ex rel. Gonzalez v. Fresenius Medical Care North America, 571 F.Supp.2d 758, 761 (W.D. Tex. 2008). Epstein has failed to even consider this interest of Jane Doe in interviewing witnesses and collecting documents now in support of her case. Fourth, a stay could permit Epstein to fraudulently convey assets overseas and beyond the reach of the Court. As Epstein knows, Jane Doe has already propounded 11 EFTA00722676 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 12 of 14 discovery requests to him about whether he is transferring his assets overseas and doing so with the intent to defeat her ability to collect any judgment that might be entered in this case. A stay until late in 2010 would give Epstein roughly an additional year-and-a-half to complete any such overseas asset transfers and potentially unfairly block her ability to obtain any compensation from Epstein. Fifth, a stay in this particular case would mean that Jane Doe's efforts to obtain compensation and justice could end up being placed far behind those of plaintiffs in parallel cases. As the Court is aware, multiple civil suits on similar allegations are pending both before this Court and before several judges in state court. While Epstein is apparently seeking a stay in all of these other cases, it seems highly unlikely that all of the various courts and judges considering those motions will agree to grant a stay. Unless and until all of the other cases are stayed, Jane Doe's case should not be singled out for special treatment and consigned to run behind those of other plaintiffs. Finally, Epstein concedes that the Court should consider "the interest of the public' in being the litigation to a rapid conclusion. Epstein Motion to Stay at 6. As the Court is aware, this case involves a non-prosecution agreement with a politically- connected billionaire that has drawn considerable public attention. See, e.g., Palm Beach Post.Com, Banker Epstein Pleads in Prostitution Case, Gets 18 Months (June 30, 2008) ("He lives in a Palm Beach waterfront mansion and has kept company with the likes of President Bill Clinton, Prince Andrew and Donald Trump, but investment banker Jeffrey Epstein will call the Palm Beach County jail home for the next 18 months"). Now, Jane Doe seeks compensation from that powerful person for the sexual abuse he inflicted on her as a minor. The public would expect this case to be handled 12 EFTA00722677 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 13 of 14 in the Court's normal, expeditious fashion, rather than have it delayed for eighteen months. CONCLUSION For all these reasons, Defendant's Motion to Stay should be denied. DATED: April 9, 2009 Respectfully Submitted, Plaintiff, by One of Her Counsel, s/ Bradley J. Edwards Bradley J. Edwards ROTHSTEIN RO ENFELDT ADLER Telephone Facsimile Florida Bar No.: 542075 E-mail: CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 9, 2009, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing is being served this day upon all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/ Bradley J. Edwards Bradley J. Edwards 13 EFTA00722678 Case 9:08-cv-80893-KAM Document 31 Entered on FLSD Docket 04/09/2009 Page 14 of 14 SERVICE LIST Case No.: 08-CIV-80893 - MARRA/JOHNSON Attorneys for Defendant Robe - Deweese Critton, Jr. Michael James Pike Burm ier & Coleman (fax) Lead Counsel Jack Alan Goldberger Atterbury P.A. Co-Counsel Attorneys for Plaintiff Bradley James Edwards Rothstein Rosenfeldt Adler fax Lead Counsel Paul G. Cassell Pro Hac Vice Jay C. Howell Jay Howell & Associates PA 14 EFTA00722679 Barbara McKenna From: Sent: Thursday, To: fisd_cmecf Subject Activity in Case oe v. Epstein Response in Opposition to Motion This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.•••NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court Southern District of Florida Notice of Electronic Filing The following transaction was entered by Edwards, Bradley on 4/9/2009 4:18 PM EDT and filed on 4/9/2009 Case Name: Doe v. Epstein Case Number: 9:08-cv-80893 https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?319956 Filer: Jane Doe Document Number: 31 Copy the URL address from the line below into the location bar of your Web browser to view the document: Document: https://ecf.flsd.uscourts.gov/doc1/05106455641?magic_num=94291445 6de_seq_numm1016caseid-319956 Docket Text: RESPONSE in Opposition re (24) Defendant's MOTION to Stay re (1) Complaint filed by Jane Doe. (Edwards, Bradley) 9:08-cv-80893 Notice has been electronically mailed to: Bradley James Edwards Jack Alan Goldberger Michael James Pike Paul G. Cassell Robert Deweese Critton , Jr • 9:08-cv-80893 Notice has not been delivered electronically to those listed below and will be rovided b other means. For further assistance, please contact our Help Desk at 1- The following document(s) are associated with this transaction: Document description: Main Document Original filename: n/a Electronic document Stamp: (STAMP dcecfStamp_ID-1105629215 (Date=4/9/20091 (FileNumber.6221322-0) (6574ab5febb71b2933e9b1c3870c06217e00b55a3ee8c0587c26b400efe00bf498db9dd0849de69be499df66c 1f00e9e29d5278c7b34bb952cfd7b2b20a66386)) 1 EFTA00722680 Case 9:08-cv-80811-KAM Document 55 Entered on FLSD Docket 04/09/2009 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80811-CIV-MARRA/JOHNSON C.M.A., Plaintiff, vs. JEFFREY EPSTEIN and M. Defendants. PLAINTIFF'S MOTION FOR EXTENSION OF TIME IN WHICH TO FILE A RESPONSE TO DEFENDANT, JEFFREY EPSTEIN'S MOTION TO STAY AND OR CONTINUE ACTION FOR TIME CERTAIN BASED ON PARALLEL CIVIL AND CRIMIMNAL PROCEEDINGS WITH INCORPORATED MEMORANDUM OF LAW Plaintiff, C.M.A., by and through her undersigned attorneys, respectfully moves this Court for an extension of time in which file to a response to Defendant Jeffrey Epstein's Motion to Stay And Or Continue Action For Time Certain Based. On Parallel Civil And Criminal Proceedings With Incorporated Memorandum of Law. Local General Rule 7.1 A.1 and Rule 6, Fed. R. Civ. P. (2009). Plaintiff seeks an extension until April 24, 2009, to file her response. As good cause in support of granting the motion, Plaintiff states: 1. Defendant's Motion to Stay And Or Continue was electronically filed and dated March 24, 2009. Pursuant to Rule 15(3), Fed.R.Civ.P., Plaintiffs response would be due on April 10, 2009. -3A CG EFTA00722681 Case 9:08-cv-80811-KAM Document 55 Entered on FLSD Docket 04/09/2009 Page 2 of 6 C.M.A. vs. Epstein, et al. Case No.: 08-CV-80811-CIv-MAFtRAIJOHNSON Plaintiffs Motion for Extension of Time in Which to File a Response to Defendant's Motion to Stay And Or Continue 2. Defendant's counsel is in agreement with the requested extension until April 24, 2009, for Plaintiff to file a response to Defendant's Motion to Stay And Or Continue. 3. Defendant's Motion to Stay And Or Continue is thirteen and a half pages long and references numerous authorities. 4. The undersigned is lead trial counsel in the case of Georgia Womack v. Wal-Mart Stores. Inc. and Willie Daniels (CASE NO.: 502007CA009230XXXXMB) currently pending in the Fifteenth Judicial Circuit before the Honorable Thomas H. Barkdull, Ill. Said case is presently the number one backup for trial Commencing Monday, April 13, 2009. As such, the undersigned has been diligently preparing the Womack case for trial. Should same be called to trial, the case is expected to last four to five days. 5. Additionally, the undersigned Is scheduled to fly to California on Friday April 17, 2009 for a deposition in the case of MONTEJO GASPAR MONTEJO, as Guardian of the person of LUIS ALBERTO JIMENEZ vs. MARTIN MEMORIAL MEDICAL CENTER, INC. (CASE NO.: 04-715CA) presently pending in the Nineteenth Judicial Circuit. The undersigned will not return from same until April 19, 2009. 2 EFTA00722682 Case 9:08-cv-80811-KAM Document 55 Entered on FLSD Docket 04/09/2609 Page 3 of 6 C.M.A. vs. Epstein, et al. Case No.: 08-CV-80811-CIV-MARRAMOHNSON Plaintiffs Motion for Extension of Time in Which to File a Response to Defendant's Motion to Stay And Or Continue 6. The requested extension is fair and reasonable under the circumstances as it will provide time to allow Plaintiff, C.M.A., to fully and adequately prepare a response to Defendant's voluminous motion. WHEREFORE, Plaintiff, C.M.A., requests that this Court enter an order granting Plaintiff an extension until April 24, 2009, to file a response to Defendant Jeffrey Epstein's Motion to Stay And Or Continue Action For Time Certain Based On Parallel Civil And Criminal Proceedings With Incorporated Memorandum of Law. CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7:1 Counsel for the movant conferred in person with counsel for the Defendant and counsel for the Defendant is in agreement with requested extension until April 24, 2009, for Plaintiff to file a response to Defendant Jeffrey Epstein's Motion to Stay And Or Continue Action For Time Certain Based On Parallel Civil And Criminal Proceedings With Incorporated Memorandum of Law *V Jack P. Hill 3 EFTA00722683 Case 9:08-cv-80811 -KAM Document 55 Entered on FLSD Docket 04/09/2009 Page 4 of 6 C.M.A. vs. Epstein, et al. Case No.: 08-CV-80811-CIV-MARRA/JOHNSON Plaintiffs Motion for Extension of Time in Which to File a Response to Defendant's Motion to Stay And Or Continue CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 9th day of April, 2009, I electronically filed the foregoing with the Clerk of the Court by using CWECF system, which will send a notice of electronic filing to all counsel of record on the attached service list. Atlank P Hill Jack Scarola Florida Bar No.: 169440 Jack P. Hill Florida Bar No.: 0547808 Phone: Fax. Attorneys for Plaintiff 4 EFTA00722684 Case 9:08-cv-80811-KAM Document 55 Entered on FLSD Docket 04/09/2009 Page 5 of 6 C.M.A. vs. Epstein, et al. Case No.: (18-CV-80811-CIV4AARRA/JOHNSON Plaintiff's Motion for Extension of Time In Which to File a Response to Defendants Motion to Stay And Or Continue COUNSEL LIST Richard H. Willits, Esquire Richard H. Willits. P.A Phone: Fax: Robert Critton, Esquire Burman Cri on Luther & Coleman LLP Phone: Fax: Jack A Goldberger, Esquire s, P.A. Phone: Bruce E. Reinhart, Esquire Bruce E Reinhart P.A. Phone: Fax: 5 EFTA00722685 Case 9:08-cv-80811-KAM Document 55 Entered on FLSD Docket 04/09/2009 Page 6 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA GASE-NO..F4-08-CV-80844-CIV4AARRAIJOHNSnN C.M.A., Plaintiff, vs. JEFFREY EPSTEIN and Defendants. / AGREED ORDER ON PLAINTIFF'S MOTION FOR EXTENSION OF TIME IN WHICH TO FILE A RESPONSE TO DEFENDANT, JEFFREY EPSTEIN'S MOTION TO STAY AND OR CONTINUE ACTION FOR TIME CERTAIN BASED ON PARALLEL CIVIL AN CRIMINAL PROCEEDINGS WITH INCORPORATED MEMORANDUM OF LAW This matter came before the Court upon the Plaintiffs Motion for Extension of Time in Which to File a Response to Defendant, Jeffrey Epstein's Motion to Stay and or Continue Action for Time Certain Based on Parallel Civil and Criminal Proceedings with Incorporated Memorandum of Law. Having considered the motion and the agreement with the requested extension, it is hereby ORDERED and ADJUDGED that Plaintiffs motion is hereby granted. Plaintiff has until April 24, 2009, to file a response to Defendant, Jeffrey Epstein's Motion to Stay and or Continue Action for Time Certain Based on Parallel Civil and Criminal Proceedings with Incorporated Memorandum of Law. DONE AND ORDERED this day of , 2009. KENNETH A. MARRA United States District Judge Copies to all Counsel of Record EFTA00722686 Barbara McKenna From: Sent: .ay, l'Alltiblitaliklattlic To: fisd_cmecf Subject: Activity in Case 9: I 8-cv-: IT: 11- MA v. Epstein et al Motion for Extension of Time to File Response/Reply/Answer This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court Southern District of Florida Notice of Electronic Filing The following transaction was entered by Hill, Jack on 4/9/2009 3:53 PM EDT and filed on 4/9/2009 Case Name: C.M.A. v. Epstein et al Case Number: 9:08-cv-80811 https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?318773 Filer: C.M.A. Document Number: 55 Copy the URI, address from the line below into the location bar of your Web browser to view the document: Document: https://ecf.fled.uscourts.gov/doc1/05106455384?magic_nums,56722496 &de_seq_numm1610caseid=318773 Docket Text: Plaintiff's MOTION for Extension of Time to File Response as to (511 Defendant's MOTION to Stay re (40) Amended Complaint <I>and or Continue Action</I> by C.M.A.. (Hill, Jack) 9:08-cv-80811 Notice has been electronically mailed to: Bruce Reinhart Guy Alan Lewis Jack Alan Goldberger Jack Patrick Hill Michael James Pike Michael Ross Tein Richard Horace Willits Robert Deweese Critton , Jr 1 EFTA00722687