EFTA00724429.pdf

Case 9:08-cv-80893-KAM Document 220 Entered on FLSD Docket 09/28/2010 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FT. LAUDERDALE DIVISION Case No. 08-C1V-80893-MARRA/JOHNSON JANE DOE, Plaintiff, v. JEFFREY EPSTEIN, Defendant. DEFENDANT. JEFFREY EPSTEIN'S RULE 4 REVIEW AND APPEAL OF MAGISTRATE'S ORDER DATED SEPTEMBER 14.2010 JD,E. 218J AND MEMORANDUM OF LAW Pursuant to Mag. J. Rule 4(a)(1) the Defendant, Jeffrey Epstein ("Epstein"), files his appeal and objections to the Magistrate's Order [D.E. 218] denying his Motion for Protective Order [D.E. 214]. L CONCISE STATEMENT OF ALLEGED ERROR IN MAGISTRATE'S RULING The records for which Epstein seeks protection from disclosure were ordered to be produced because they were found by this Court to be relevant or might lead to relevant evidence in an action for damages by Jane Doe against Epstein. These records are communications between Epstein and Federal Prosecutors related to settlement negotiations. As part of the settlement of this case, the parties agreed to keep the records in question confidential until notice of intended use was given, an opportunity for objection to such use by Epstein could be made, and a ruling was entered by the court. By agreement, this would occur even after this case was over and closed. [ D.E. 207, 209] FOWLER want Ws/en; PA. • Minas Pour- WFSr TOWER, Sorra 901, 777 SOUTH RAWER Ditty% WEST PALM BEAM MERIDA 33401 • (561)&a4044 EFTA00724429 Case 9:08-cv-80893-KAM Document 220 Entered on FLSD Docket 09/28/2010 Page 2 of 7 Jane Doc v. Jeffrey Epstein Case No. 08-CIV-80893•MARRA/JOHNSON Epstein's Rule 4 Review and Appeal of Mag. Order and Memo of Law. In response to Epstein's motion, Edwards, and not the Plaintiff, Jane Doe, responds for himself and on behalf of others not party to these proceedings. Edwards response fails to establish his standing on his claim to be the real party in interest. Edwards did not address or oppose that portion of Epstein's Motion for Protective Order relating to use of documents outside the context of a court proceeding. Therefore, that portion of the Motion for Protective Order should be granted. It is not the intent of the Defendant to ask this court to interfere with the ability of another court to rule on whether the Correspondence in question can be used in that proceeding. Requests can be made by Edwards himself or on behalf of his clients in those proceedings. However, if the documents are released now, particularly if they are used as part of a non-judicial legislative agenda where the Defendant is not a party or cannot become a party, Epstein will have no remedy or protection. [(D.E. 215, Exhibit 2, pages 3-4.] II. STATEMENT OF ORDER FOR WHICH REVIEW IS SOUGHT The Defendant requests the Court review the following portion of the Magistrate's Order as follows: ...said Motion for Protective Order [D.E. 214] is denied without prejudice as the matter is not properly before the court. Defendant has failed to cite any authority which would permit the court in this case, which has been dismissed and closed, to block the use of evidence in question in a separate state court proceeding. The court agrees with Edwards, who has filed a response in opposition to the motion [D.E. 217], that if the defendant believes he has a valid basis for preventing disclosure the subject documents the state court proceeding, he should file a motion to that effect in the appropriate court. -2- FOWLER WHITE sce.wsrr, PA • PHLLIPS POINT- WEST Town, Sum 901> 777 SOUTH ELACLETTOTUTE, WEST PAW BEACH, FLORIDA 33401 • MO Sta-9044 EFTA00724430 Case 9:08-cv-80893-KAM Document 220 Entered on FLSD Docket 09/28/2010 Page 3 of 7 Jane Doe v. Jeffrey Epstein Case No. 08-CIV-80893-MARRA/JOHNSON Epstein's Rule 4 Review and Appeal of Mag. Order and Memo of Law. HI. ARGUMENT AND MEMORANDUM OF LAW A. The Court has authority to rule on this matter by virtue of the Agreement of the parties that was part of the Settlement of this case. The parties, as part of the Settlement Agreement, entered into a Joint Stipulation which this Court approved. The Order by this Court allows the parties, Doe and Epstein, to seek a ruling on use of certain documents produced in discovery before use in other forums. Where a District Court approves and expressly retained jurisdiction over the parties' Settlement Agreement, the Court does have authority to enforce the Agreement's terms. American Disability Assn, Inc. v. Chmielarz, 289 F.3d 1315, 1321 (11' Cit. 2002). The Magistrate's Order is clearly erroneous because it states the matter is not properly before the Court. B. Epstein did not have an opportunity to reply to Edwards's contention that he was "the real party in interest", Rule 7.1(C), Local Rule U.S. District Court, Southern District of Florida provides that within five days of a response to a motion, the movaM may make a reply. The Magistrate's order was entered one day after Edwards' response; and therefore, Epstein did not have an opportunity address Edwards' alleged standing or other arguments raised in his response. The Magistrate's Order is clearly erroneous because it accepts Edwards' argument, presented by Edwards for the first time, that he was the real party in interest, without giving Epstein a chance to respond. -3- FOWLER WHITE EIURNETT, PA. • PHILIPS POINT- WELT TOWER, SUITE 901, 777 SOUTH FLAOLER DRIVE, WEST PALM BEACH, FLORIDA 33401. (561) 802.9044 EFTA00724431 Case 9:08-cv-80893-KAM Document 220 Entered on FLSD Docket 09/28/2010 Page 4 of 7 Jane Doe v. Jeffrey Epstein Case No. 08-CIV-80893-MARRA/JOHNSON Epstein's Rule 4 Review and Appeal of Mag. Order and Memo of Law. C. Edwards is not the teal party in interest and does not possess standing to argue against Epstein's Motion for Protective Order. The response to Epstein's Motion for Protective Order came not from the Plaintiff, Jane Doe or on behalf of the Plaintiff Jane Doe, but by her counsel, claiming he in fact was the real party in interest. Edwards, in his response, shows no basis why he is "the real party in interest" when the action was brought by Jane Doe. Moreover, Edwards is making this claim as "real party in interest", for the first time in this case. It is well established that to be a real party in interest requires a party who brings an action actually possess, under substantive law, a right sought to be enforced. See for example, United Healthcare Corp. a American Trade Insurance Company, Ltd., 88 F.3d 563 (8th Cir. 1996), Fed. It Civ. P. 17(a). Edwards fails to provide any legal or statutory authority for making this claim at this time now that the case is over. The Magistrate's order was clearly erroneous by allowing Edwards standing as the real party in interest. D. The Intent of the Motion is to Allow Objection to Disclosure Before Use. Fed.R.Civ.P. 26(b)1, allows a party to obtain discovery relating to the parties' claim or defense. It is not the purpose or the intent of the federal rules of procedure to provide for discovery in other unrelated matters without first using the procedures available in those proceedings. Foltz v. State Farm Mutual Automobile Insurance Co., 331 F.3d 1122 (99' Cir. 2003); Cordis Corp. v. O'Shea, 988 So. 2d 1163 (Fla. 4DCA 2008) The Magistrate's Order is clearly erroneous because while it does leave the use of the documents to the Court overseeing the litigation, it does not require Edwards to request the documents in the first instance. As things stand now, Edwards can use the records -4- FOWLER Winn Burearr, P.A. • P1111.1.11S POINT- WEST TOWER, Surre 901, 777 Soup' FtAointDium WEST PAW BEACH, FLORIDA 33401 • (561) 602-9044 EFTA00724432 Case 9:08-cv-80893-KAM Document 220 Entered on FLSD Docket 09/28/2010 Page 5 of 7 Jane Doe v. Jeffrey Epstein Case No. 08-CIV-80893-MARRA/JOHNSON Epstein's Rule 4 Review and Appeal of Mag. Order and Memo of Law. obtained in this proceeding without the need of making a formal discovery request to which Epstein can object before producing the records. This allows Edwards and others to subvert the limitations on discovery another court may impose. The records can be used as part of affidavits or deposition exhibits without a court ruling. In fact, Edwards has done so by making these documents exhibits to a Motion for Summary Judgment without requesting them first and giving Epstein the opportunity to object and a Court to rule. Epstein v. Edwards, 502009CA40800XXXX MB AG, Fifteenth Judicial Circuit, Palm Beach County, Florida. If the documents are used outside the context of a court proceeding, to advance a legislative agenda, there will be no opportunity to file a motion for protection as the Magistrate states can be done. The Magistrate's Order is clearly erroneous, because it allows Edwards to use the documents in non-judicial forums when Edwards did not oppose this portion of Epstein's motion. I. REPEF REOUESTED Epstein requests the following relief: A. Overturn the Magistrate's Order and allow Defendant Epstein to respond to Edwards' Claim of Standing and other arguments; B. Alternatively, require Edwards to utilize discovery requests in pending actions before using the documents in that proceeding and return the documents; C. Alternatively, prevent the use ofcorrespondence outside the context ofacourt case since Edwards never responded, nor objected to that part of Epstein's motion. -5- FOWLER WHITE BunErt P.A. • PHILLIPS POINT - WEST TOWER, SUITE 901, 777 SOUTH PLAGUE DRAM, WEST PALM BEACH, FLORIDA 33401 • ($61) 8029044 EFTA00724433 Case 9:08-cv-80893-KAM Document 220 Entered on FLSD Docket 09/28/2010 Page 6 of 7 Jane Doe v. Jeffrey Epstein Case No. 08-CIV-80893-MARRA/JOHNSON Epstein's Rule 4 Review and Appeal of Mag. Order and Memo of Law. VII. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the following service list in the manner specified via transmission ofNotices of Electronic Filing generated by CM/ECF on this atth day of September, 2010. Brad Edwards, Esq. Fanner, Jaffe, Weissing, Edwards, Fistos & Lehrman, PL 423 N. Andrews Avenue Suite 2 Fort Lauderdale, FL 33301 954-524-2820 954-524-2822 Fax Brad ®oathtojustice.com Paul G. Cassell, Esq. Pro Hac Vice 332 South 1400 E, Room 101 Salt Lake City, UT 84112 801-585-5202 801-585-6833 Fax Cassellp@law.utah.edu Co-Counsel for Plaintiff Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue, South Suite 1400 West Palm Beach, FL 33401-5012 561-659-8300 561-835-8691 Fax Jagesq@bellsouth.net Co-counsel for Jeffrey Epstein Respectfully submitted /s/ Joseph L. Ackerman. Jr. Joseph L. Ackerman, Jr. Fla. Bar No. 235954 Lilly Ann Sanchez Fla. Bar No. 195677 FOWLER WHITE BURNETT P.A. 901 Phillips Point West -6- FOWLER WHITE BURNE17, FA. • PHILLIPS POINT - WEST TOWER, SUITE 90I, 777 SOWN FLAGIER DOW, V/ES7 PALM BEACH, FLOPJDA 33401 • (561) 802-9004 EFTA00724434 Case 9:08-cv-80893-KAM Document 220 Entered on FLSD Docket 09/28/2010 Page 7 of 7 Jane Doe v. Jeffrey Epstein Case No. 08-CIV-80893-MARRA/JOHNSON Epstein's Rule 4 Review and Appeal of Mag. Order and Memo of Law. 777 South Flagler Drive West Palm Beach, Florida 33401 Telephone: (561) 802-9044 Facsimile: (561) 802-9976 Co-Counsel for Defendant Jeffiey Epstein -7- Fova.ut Wm7EBumErr, P.A. • PHILLIPS POINT - Wes7Towes, Sum 901, 777 &ATM PLAGUE Draw, WEST PAW BEACH, RAMADA 33401 • (561) 802-9044 EFTA00724435