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10 hab 2 ils) 14 ANS) + Ny) 18 ane] 20 PHIL 22 23 24 PMs) Case 1:15-cv-07433-LAP Document 1332-2 Filed 01/08/24 Page 23 of 42 22 XGAQGIUc SEALED went to law school -- Fisher case of 1976 recognized that even defendants who have committed serious crimes can be forced to produce information so long as the act of producing that information is not incriminating. And I believe Mr. Epstein has agreed that all of the documents do not have a Fifth Amendment privilege to which he's entitled to assert. The only question is whether the mere act of producing those documents is incriminating. THE COURT: Just a second. (Pause) MR. CASSELL: Thank you, your Honor. So I think we generally agree on the case law. The issue then is whether producing cell phone records -- let's take cell phone records. He says we would have to go through and pick out particular records, and that act of pulling out particular records is in and of itself incriminating. We would ask our subpoena then to be construed to avoid constitutional objections. Just give us all his cell phone records. There is no picking and choosing at that point. The only reason that some of our requests were initially narrowed was to avoid a burdensomeness objection. If that's the a problem, we would ask leave to have our subpoena construed to request all the records so that isn't the problem, and we've tried to highlight in our brief areas where he is not being required to pick and choose. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300