EFTA00177793.pdf

Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE #1 and JANE DOE #2, petitioners, VS. UNITED STATES OF AMERICA, respondent. FILED by D.C. JUN 1 8 2013 STEVEN ht. LARNOFIE CL ERK U S DIST L.T S. D. of FIA - WILL — ORDER DENYING GOVERNMENT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION & ORDER LIFTING STAY OF DISCOVERY THIS CAUSE is before the court on the government's motion to dismiss for lack of subjcct matter jurisdiction [DE 119], the petitioners' response in opposition [DE 127) and the government's reply [DE 147]. For reasons stated below, the court has determined to deny the motion. I. Preface The petitioners in this action seek to vacate a "non-prosecution agreement" ("the agreement") between the United States Attorney's Office for the Southern District of Florida (USAO/SDFL) and Jeffrey Epstein (Epstein) pursuant to the Crime Victims' Rights Act of 2004 (CVRA), 18 U.S.C. §3771. Under the agreement, Epstein agreed to (1) plead guilty to two then pending state court charges, solicitation of prostitution and solicitation of minors to engage in prostitution (a charge requiring him to register as a sex offender), in violation of Fla. Stat. §§796.07 and 796.03 and (2) make a binding recommendation for an eighteen-month sentence in county jail followed by twelve months of community control. In exchange for Epstein's performance, the USAO/SDFL agreed to (1) defer prosecution of related federal offenses against Epstein which had been EFTA00177793 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 2 of 14 investigated by the Federal Bureau of Investigation (FBI) 1 in favor of prosecution by the State of Florida and (2) refrain from instituting criminal charges against certain alleged co-conspirators of Epstein. Further, the USAO/SDFL and Epstein expressed their "anticipat[ion]" that the "agreement will not be made part of any public record. " Additionally, the USAO/SDFL promised to provide Epstein advance notice before disclosing the agreement in response to a Freedom of Information Act request or compulsory process commanding disclosure [DE 48-5, pp. 2-15]. II. Factual Background As outlined in their CVRA petition and supplemental pleadings filed in this action, petitioners allege the following sequence of events, which the court assumes to be true at the motion to dismiss stage:2 1. In 2006, the Federal Bureau of Investigation opened an investigation into allegations that Epstein had been inducing minor females to engage in commercial sexual activity over the preceding five year period of time. The United States Attorney's Office for the Southern District of Florida accepted the case for prosecution, and in June, 2007 and August, 2007, the FBI issued standard The agreement enumerated certain federal offenses which the FBI and the United States Attorney's Office determined may have been committed by Epstein between 2001 through 2007, including conspiracy to use and the use of facilities of interstate commerce to persuade, induce or entice minor females to engage in prostitution in violation of 18 U.S.C. §2422(b); conspiracy to travel and travel in interstate commerce for purpose of engaging in illicit sexual conduct with minor females in violation of 18 U.S.C. § 2423(b); knowingly recruiting, enticing and obtaining persons under the age of eighteen years to engage in commercial sex acts in violation of 18 U.S.C. §1591(a)(1). 2 See Cole v. United States, 755 F.2d 873 (1 Ii' Cir. 1985)(in reviewing motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b), reviewing court must assume as true all "factual" allegations in the complaint). 2 EFTA00177794 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 3 of 14 victim notification letters to the petitioners Jane Doe No. I and Jane Doe No. 2. 2. On September 24, 2007, the USAO/SDFL entered into the above-described non- prosecution agreement with Epstein without first conferring with petitioners, and without alerting them to the existence of the agreement either before or promptly after the fact.' Petitioners claim they were kept in the dark about the agreement for roughly nine months - with no mention of the federal deal made in intervening correspondence and verbal communications between petitioners, the FBI and the local United States Attorney's Office?' 3. On June 27, 2008, the Assistant United States Attorney assigned to the Epstein case contacted petitioners' counsel to advise that Epstein was scheduled to plead guilty to certain state court charges on June 30, 2008, without mentioning that the anticipated plea in the state court was a term of the pre-existing non-prosecution agreement with the federal authorities. 4. On July 3, 2008, petitioners' counsel sent a letter to the USAO/SDFL advising that Janc 'The government appears to concede the non-conferral, stating in its reply brief: While it may be true that the USAO-SDFL did not in form Petitioners and confer with them about the Non-Prosecution Agreement before it signed that agreement, the USAO-SDFL had conferred with both of the Petitioners about the potential prosecution of Epstein and was aware that Jane Doe #1 wished to see Epstein prosecuted and that, at that time, Jane Doe #2 had expressed open hostility toward any prosecution of Epstein. [DE 147, page 31]. 4 The post-agreement communications arc alleged to include a May 30, 2008 letter from the USAO/SDFL to a recognized victim advising that the case "is currently under investigation" and that "it can be a lengthy process and we request your continued patience while we conduct a through investigation." In addition, the USAO/SDFL allegedly sent a letter to the victims' counsel in June, 2008, asking them to submit a letter expressing the victims' views on why federal charges should be filed against Epstein -- without mentioning that the USAO/SDFL had already entered into the non-prosecution agreement. 3 EFTA00177795 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 4 of 14 Doe No. 1 wished to see federal charges brought against Epstein. III. Procedural History 5. On July 7, 2008, Jane Doe No. I filed an "emergency" petition under the CVRA, contending that Epstein was currently involved in plea negotiations with the USAO/SDFL, which "may likely result in a disposition of the charges in the next several days." [CVRA Petition, DE 1, 13]. Claiming to be wrongfully excluded from those discussions, Jane Doe 1 asserted the violation of her CVRA rights to confer with federal prosecutors; to be treated with fairness; to receive timely notice of relevant court proceedings and to receive information about her right to restitution. As relief, she requested entry of an injunction directing the United States Attorney's Office to "comply with the provisions of the CVRA prior to and including any plea or other agreement with [Epstein] and any attendant proceedings." 6. On July 9,2008, the government filed its response, disclaiming application of the CVRA to pre-charge negotiations with prospective defendants. Alternatively, the government contended it did use its "best efforts" to comply with CVRA notice and conferral requirements in its dealings with Jane Doe 1. 7. On July 11, 2008, the court entertained a hearing on the initial petition. During the course of that proceeding, the court allowed an amendment of the petition to include Jane Doe No. 2 as a complainant. The government acknowledged at that time that both petitioners met the definition of "crime victims" under the CVRA. 4 EFTA00177796 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 5 of 14 8. Over the course of the next eighteen months, the CVRA case stalled as petitioners pursued collateral civil claims against Epstein. The CVRA case was administratively closed on September 9, 2010, and then re-opened at petitioners' request on October 28, 2010. Since then, petitioners have submitted a "Motion for Finding of Violations of the CVRA" and a supporting statement of facts [DE 48]. 9. On September 26, 2011, the court entered its order partially granting the petitioners' motion for a finding of violations of the CVRA, recognizing that the CVRA can apply before formal charges are filed against an accused. The court deferred ruling on the merits of the motion pending development of a full factual record, and authorized petitioners to conduct limited discovery in the form of requests for production of documents and requests for admissions directed to the U.S. Attorney's Office, with leave for either party to request additional discovery as appropriate [DE 99]. 10. On November 8, 2011, the government moved to dismiss the entire CVRA proceeding for lack of subject matter jurisdiction [DE 119], and successfully sought a stay of discovery pending resolution of that motion [DE 121, 123]. In its current motion to dismiss, the government first contends that "even assuming that the CVRA was violated as petitioners claim, petitioners lack standing to seek redress for those violations" because the remedy petitioners seek- - a vacating or re-opening of the non-prosecution agreement — is not a legally viable option at this juncture. Alternatively, the government argues that petitioners' CVRA claims are not "constitutionally ripe" because petitioners have a present ability to confer with prosecutorial authorities in other jurisdictions, namely the United States Attorney's Offices of the District of New Jersey and New York, which share jurisdiction and venue over the federal offenses potentially chargeable against 5 EFTA00177797 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 6 of 14 Epstein for crimes committed in this District. Thus, the government asserts that it is premature and speculative for petitioners to bring a claim for the prospective denial of CVRA conferral rights, rendering their current claims constitutionally unripe. These arguments are addressed, in turn, in the discussion which follows. IV. Discussion "[T]he core component of standing is an essential and unchanging part of the case-or- controversy requirement of Article III." Lujant Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy Article Ill's minimum standing requirements, a plaintiff must generally show (1) it has suffered an injury in fact — i.e. the invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent; (2) the injury is fairly traceable to the challenged action of the defendant, and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-561. Here, the government contends petitioners arc unable to satisfy the third prong of this test on the theory it is legally impossible for petitioners to obtain the relief which they seek - the vacating of the non-prosecution agreement as a predicate to the full and unfettered exercise of their CVRA conferral rights — and that they are therefore unable to show a likelihood that the CVRA injury alleged will be redressed by a favorable decision in the case. More specifically, the government contends that rescission of an otherwise valid plea or non-prosecution agreement (i.e. an agreement containing no illegal terms or conditions) is prohibited by constitutional Due Process guarantees - even if entered in violation of the CVRA. Alternatively, the government argues that even if the court could set the agreement aside and order the government to confer with petitioners before arriving at a final prosecutorial decision regarding Epstein, the gesture would be futile. The 6 EFTA00177798 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 7 of 14 government claims that the United States Attorney's Office for the Southern District of Florida would still be legally bound to abide by the terms of the September 24, 2007 agreement,' eliminating the possibility that exercise of petitioners' conferral rights under the CVRA might lead to a different federal charging outcome. The court disagrees. As a threshold matter, the court finds that the CVRA is properly interpreted to authorize the rescission or "re-opening" of a prosecutorial agreement - including a non-prosecution arrangement — reached in violation of a prosecutor's conferral obligations under the statute. Clearly, the statute contemplates such a result where, under the "enforcement and limitations" provision, § 3771(d)(5), the conditions under which "[a) victim may make a motion to re-open a plea or sentence" in order to remedy a failure to afford a right provided under the CVRA arc specifically prescribed. If the government's theory was correct, i.c. that no otherwise valid plea may be disturbed, notwithstanding a CVRA violation, as a matter of constitutional due process guarantees -- the statutory prescriptions for "re-opening" a plea or sentence reached in violation of the CVRA would effectively be nullified. The court will not embrace such a strained construction of the statute. 5 The government acknowledges that the USAO/SDFL has been recused by the Department of Justice for prospective responsibility of any further criminal investigation or potential prosecution of Epstein relating to his alleged sexual activities with minor females in the Southern District of Florida, and that responsibility for any future prosecutorial action arising out of Epstein's alleged criminal activity in this district has now been assigned to the United States Attorney's Office for the Middle District of Florida [Government Motion to Dismiss, page 8, n. 8][DE 119). However, it contends, without explanation, that the September 24, 2007 non-prosecution agreement would still constrain the Middle District of Florida United States Attorney's Office "due to that office's recusal- based derivative prosecutorial responsibilities in the Southern District of Florida" [Government Motion to Dismiss, page 12, n. 13][DE 119). 7 EFTA00177799 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 8 of 14 Although this particular statutory enforcement provision expressly refers to the re-opening of a "plea" or "sentence"— events falling in the post-charge stage of criminal proceedings —the court concludes that the statute is properly interpreted impliedly to authorize a "re-opening" or setting aside of pre-charge prosecutorial agreements made in derogation of the government's CVRA conferral obligations as well. First, the court concludes that the "reasonable right to confer... in the case "guaranteed by the CVRA at §3771(a)(5) is properly read to extend to the pre-charge stage of criminal investigations and proceedings, certainly where -- as here-- the relevant prosecuting authority has formally accepted a case for prosecution. The case law and legislative history of the statute support such an expansive reading of the statutory mandate. See United States v. BP Products North America, Inc., 2008 WL 501321 at * 11-15 (S.D. Tex. 2008)(unpub), citing I50 Cong. Rec. S2460, 54268 (daily ed. Apr 22, 2004)(statement of Senator Feinstein)(explaining that the right to confer was "intended to be expansive," applying to "any critical state or disposition of the case") and United States v. Heaton, 458 F. Supp. 2d 1272 (D. Utah 2006)(government motion to dismiss charge of using facility of interstate commerce to entice minors to engage in unlawful sexual activity would not be granted until government consulted with victim); United States v. Ingrassia, 2005 WL 2875220 at *17 n. 11 (Senate Debate supports view that contemplated mechanism for victims to obtain information on which to base their input was conferral with prosecutor concerning anycritical stage or disposition of the case), and United States Department of Justice, Attorney General Guidelines for Victim and Witness Assistance 30 (2005X"Responsible officials should make reasonable efforts to notify identified victims of, and consider victims' views about, prospective plea negotiations.") 8 EFTA00177800 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 9 of 14 In short, there is no logical reason to treat a "non-prosecution agreement" which the government employs to dispose of contemplated federal charges any differently from a "plea agreement" employed to dispose of charged offenses in interpreting remedies available under the CVRA. Where the statute expressly contemplates that a "plea" may be set aside if entered in violation of CVRA conferral rights, it necessarily contemplates that a "non-prosecution" agreement may be set aside if entered in violation of the government's conferral obligations. Thus, in their petition and supplemental pleadings, Jane Doe 1 and 2 have identified a remedy which is likely to redress the injury complained of— the setting aside of the non-prosecution agreement as a prelude to the full unfettered exercise of their conferral rights at a time that will enable the victims to exercise those rights meaningfully. See BP Products North America, supra at *14 ("Section 3771(c)(1) requires government officials to use best efforts to give victims notice of their rights under subsection (1), including the right to confer, at a time that will enable the victims to exercise these rights meaningfully"). Thus, petitioners do not lack constitutional standing because of an inability to identify a remedy for their alleged injury. Nor is the court persuaded by the government's "futility" argument, derived from its stated perception that the United States Attorney's Office for the Southern District of Florida (and derivatively the United States Attorney's Office for the Middle District of Florida) would be constrained to honor the terms of the September 24, 2007 agreement even if the court were to set it aside and order the government to confer with the victims before reaching a final charging decision. 9 EFTA00177801 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 10 of 14 The fallacy with this strand of the government's standing argument derives from its misidentification of the alleged injury sought to be remedied in the case: The victims' CVRA injury is not the government's failure to prosecute Epstein federally — an end within the sole control of the government. Rather, it is the government's failure to confer with the victims before disposing of contemplated federal charges. This injury can be redressed by setting aside the agreement and requiring the government to handle its disposition of the Epstein case in keeping with the mandates of the CVRA, including the pre-charge conferral obligations of the government. The court rejects the notion that a victim must show the likelihood or at ►east a possibility of a prosecution as a pre- requisite to demonstrating standing for redress of conferral rights under the CVRA - which is the fundamental premise of the government's futility argument. What the government chooses to do after a conferral with the victims is a matter outside the reach of the CVRA, which reserves absolute prosecutorial discretion to the government. 18 U.S.C. §3771 (d)(6)("Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction"). While the law of standing does require, as a general proposition, that a federal plaintiff show some logical nexus between the asserted injury and the claim sought to be adjudicated (i. e. a likelihood that the relief sought is likely to vindicate the injury), Linda R.S. v. Richard D., 410 U.S. 614, 93 S. Ct. 1146, 35 L.Ed. 2d 536 (1973), these requirements apply only in the absence of a statute expressly conferring standing. Id. at 617 n. 3 ("0 Congress may enact statutes creating leal rights, the invasion of which creates standing, even though no injury would exist without the statute"), citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S. Ct. 364, 368, 34 L.Ed. 2d 415 (1972). It is apparent, through the passage of the CVRA, that Congress has enacted 10 EFTA00177802 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 11 of 14 a statute expressly conferring certain legal rights upon "crime victims," the invasion of which creates standing to seek relief under the CVRA, even though no cognizable injury would exist without the statute. It is also apparent that the petitioners in this case meet the definition of "crime victims" conferred with standing to assert the subject CVRA claims. The CVRA at §3771(e) defines a "crime victim" as " a person directly and proximately harmed as a result of the commission of a Federal offense." In the Eleventh Circuit, a two-part test is employed to determine whether an individual qualifies as a crime victim under this statute: First, the court must identify the behavior constituting the "commission of a Federal offense." Second, the court must identify the direct and proximate effects of that behavior on parties other than the United States. In re Stewart, 552 F.3d 1285 (11th Cir. 2008). If the criminal behavior causes a party direct and proximate harmful effect, the party is considered a victim under the CVRA. Id at 1288. The non-prosecution agreement at issue refers to five distinct federal sex offense crimes involving minors contemplated against Epstein, the direct and proximate harmful effects of which were allegedly visited upon the petitioners, plainly qualifying them as crime victims within the meaning of the CVRA. As such, they have standing to assert rights under the CVRA, as they have done in this case. See e.g. United States v. Thetford, F. Supp. 2d , 2013 WL 1309851 (ND. Ala. 2013). Presented with these claims, the court is obligated to decide whether, as crime victims, petitioners have asserted valid reasons why the court should vacate or re-open the non- prosecution agreement reached between Epstein and the USAO/SDFL. Whether the evidentiary proofs will entitle them to that relief is a question properly reserved for determination upon a fully 11 EFTA00177803 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 12 of 14 developed evidentiary record. 6 In sum, the petitioners' standing is expressly conferred by the CVRA, which limits its protections to "crime victim(s)," defined as "person[s] directly and proximately harmed as a result of the commission of a Federal offense ..." 18 U.S.C. §3771(e). The court finds and the government does not dispute that petitioners are persons "directly and proximately harmed" as the result of federal offenses allegedly committed by Epstein. This concludes the proper confines of the standing inquiry. 6 Recognizing the need for a developed evidentiary record, the court accordingly rejects the government's related "estoppel" argument as an independent attack on petitioners' constitutional standing to sue. In this vein, the government argues that the petitioners are legally precluded from seeking rescission of the non-prosecution agreement under any scenario because they had, but forfeited, an opportunity to press for rescission at an early stage in these CVRA proceedings-- before Epstein performed his part of the bargain (i.e. before he served jail time on the two state charges). Due to petitioners' counsel's initial "indecision" on whether to seek rescission, as expressed at an earlier hearing held in August 2008, the government argues that "[e]ven assuming arguendo that the CVRA would allow a victim to seek rescission of a non- prosecution agreement between the government and an uncharged individual, petitioners' action would legally preclude them from obtaining such a remedy in these proceedings." Whether petitioners are estopped from seeking vindication of their CVRA conferral rights via the vehicle of rescission or a "re-opening" of the non-prosecution agreement due to an earlier litigation posture assumed in this case-- as the government contends -- implicates a fact-sensitive equitable defense which must be considered in the historical factual context of the entire interface between Epstein, the relevant prosecutorial authorities and the federal offense victims — including an assessment of the allegation of a deliberate conspiracy between Epstein and federal prosecutors to keep the victims in the dark on the pendency of negotiations between Epstein and federal authorities until well after the fact and presentation of the non-prosecution agreement to them as a fait accompli. As with threshold questions going to the existence of the alleged CVRA violations, questions pertaining to this equitable defense are properly left for resolution after development of a full evidentiary record. 12 EFTA00177804 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 13 of 14 B. Ripeness The "ripeness doctrine," under which a plaintiff lacks standing if his claim is not ripe, aims to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies. Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013); Brennan v. Roman Catholic Diocese of Syracuse New York, Inc., 322 Fed. Appx. 852, 2009 WL 941765 (11* Cir. 2009)(unpub). In this case, the government contends that the petitioners' CVRA conferral claims are not constitutionally ripe because petitioners do not allege they have sought and have been denied conferral with all federal prosecutorial authorities having potential jurisdiction over Epstein's federal sex crimes in the Southern District of Florida. Specifically, the government argues that the United States Attorney's Office of the Districts of Ncw Jersey and New York share jurisdiction with the United States Attorney's Office for the Southern District of Florida over federal sex offenses allegedly committed by Epstein in the Southern District of Florida, and that petitioners' CVRA conferral claims are not ripe unless and until all other relevant prosecutorial authorities refuse or fail to confer with them regarding federal offenses chargeable against Epstein. The court summarily rejects this argument. Petitioners have alleged a violation of their CVRA conferral rights against a federal prosecutorial authority which formally accepted the case against Epstein for prosecution. Whether conferral rights do or do not exist with prosecutorial authorities in some other jurisdiction does not detract from the ripeness of this claim against a local federal prosecutorial authority which did actively investigate potential charges against Epstein in this district and formally resolved those charges with the challenged non-prosecution agreement at 13 EFTA00177805 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 14 of 14 issue in this action. III. Conclusion Based on the foregoing, it is ORDERED AND ADJUDGED: 1. The government's motion to dismiss for lack of subject matter jurisdiction [DE 119] is DENIED. 2. The stay of discovery pending ruling on the government's motion to dismiss entered November 8, 2011 [DE# 123] is LIFTED. DONE AND ORDERED in Chambers at West Palm Beach, Florida this 18th day of June, 2013. United States District Judge cc. All counsel 14 _SEALED /' NOT SEALED EFTA00177806 Case 9:08-cv-80736-KAM Document 187 Entered on FLSD Docket 06/18/2013 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE #1 and JANE DOE #2, petitioners, vs. UNITED STATES OF AMERICA, respondent. ORDER GRANTING PETITIONERS' MOTION TO REQUIRE GOVERNMENT TO FILE REDACTED PLEADINGS IN THE PUBLIC COURT FILE [DE 150] ORDER DIRECTING CLERK TO UNSEAL THE GOVERNMENT'S RESPONSE IN OPPOSITION TO THE MOTION [DE 156) THIS CAUSE is before the court on the petitioners' motion for entry of order requiring the government to file redacted pleadings in the open court file [DE 150], together with the government's sealed response in opposition [DE 156] . For reasons discussed below, the court has determined to grant the motion and order the parties to place all written submissions in this proceeding in the open court file, with limited exception for identifying victim information and evidentiary grand jury materials. There is a presumptive right of public access to pretrial motions of a non-discovery nature, whether preliminary or dispositive, and the material filed in connection with such motions. Romero v. Drummond Co., 480 F.3d 1234 (11th Cir. 2007), citing Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157 (3d Cir. 1993); United States v Amodeo, 71 F.3d 1044 (2d Cir. 1995). The common law right of access to judicial proceedings, including the right to inspect and copy public records and documents, is not absolute, however. It does not apply to discovery, and even when it does apply, may be overcome by a showing of good cause, which requires "balanc[ing] EFTA00177807 Case 9:08-cv-80736-KAM Document 187 Entered on FLSD Docket 06/18/2013 Page 2 of 4 the asserted right of access against the other party's interest in keeping the information confidentiarRomero at 1246, citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11* Cir. 2001). In balancing the competing interests, the court appropriately considers "whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents. Id. In this case, the government identifies the secrecy of grand jury proceedings, protected against disclosure under Fed. R. Crim. P. 6(eX6) as good cause for the filing of its submissions under seal.' Specifically, the government contends that the submission under seal of its (i)original memorandum in support of motion to dismiss; (ii) reply memorandum in support of motion to dismiss for lack of subject mater jurisdiction and (iii) motion to stay discovery pending resolution of motion to dismiss was appropriately made in conformity with a November 8, 2011 (sealed) order permitting limited disclosure of grand jury matters in this proceeding issued by United States District Judge Donald Middlebrooks, the district judge before whom the original grand jury matter was filed. In addition, the government relies on Fed. R. Crim P. 6(eX2)(B), prohibiting certain Rule 6(eX6) provides that "[r] eeords, orders and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grandjury." Information is protected from disclosure under Rule 6(e) if disclosure would tend to reveal some secret aspect of the grand jury's investigation, such matters as identities or addresses of witnesses or jurors, the subject of grand jury testimony, the strategy or direction of the investigation, the deliberations or questions of jurors and the like. In re Motions of Dow Jones & Co, 142 F.3d 496, 500 (D. C. Cir.), cert. denied, 525 U.S. 820 (1998). 2 EFTA00177808 Case 9:08-cv-80736-KAM Document 187 Entered on FLSD Docket 06/18/2013 Page 3 of 4 individuals (including prosecutors) from disclosing "a matter occurring before the grand jury" as authority for its submission of the above documents under seal. The November 8, 2011 order refers to certain collateral evidence gathered in Federal Grand Jury Proceeding 05-02 and Federal Grand Jury Proceeding 07-103 (WPB) [DE 121-1, page 15], matters having little, if any, relevance to the issues framed in this proceeding under the Crime Victims Rights Act. The government's insertion ofpassing references to this material in its pleadings before this court does not justify the government's wholesale submission of these filings under seal. In the first instance, it is unlikely that release of the information referenced in the November 8 order would compromise the strategy of ongoing federal grand jury proceeding at this juncture.' However, the court need not address whether grand jury secrecy interests still attach because the petitioners agree to the filing of redacted documents as a method of protecting any possible grand jury secrecy interests while otherwise making public the government's filings in this proceeding. The court agrees that this is a less onerous alternative to sealing which is appropriately employed in this case. See e.g. In re Grand Jury Proceedings, 417 F.3d 18 (1° Cir. 2005); In re Grand Jury Proceedings, 616 F.3d 1172 (10° Cir. 2010). 2 "Grand jury secrecy is not unyielding" when there is no secrecy left to protect. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006). Rule 6(eX6) requires that records, orders and subpoenas relating to grand jury proceedings remain sealed only "to the extent and as long as necessary to prevent the unauthorized disclosure" of such matters. Thus, when once- secret grand jury material becomes "sufficiently widely known," it may "los[e] its character as Rule 6(e) material." In re North, 16 F.3d 1234 (D. C. Cir. 1994). 3 EFTA00177809 Case 9:08-cv-80736-KAM Document 187 Entered on FLSD Docket 06/18/2013 Page 4 of 4 It is accordingly ORDERED AND ADJUDGED: I. The petitioners' motion to require the government to file all pleadings and other submissions in the open court file, with redactions limited only to references to the above-described grand jury evidence and identifying information pertaining to victims [DE 150] is GRANTED. 2. Within TEN (10) DAYS from the date of entry of this order, the government shall redact out any references to the grand jury material in question from its various pleadings and other submissions in this proceeding, signifying the placement of any redactions with highlighted double brackets, e.g. "[[ ]]," or black-out marker, and shall then re-file the same in the public portion of the court file. Similarly, the government shall redact out any reference to the identity of the crime victims, by name or initial, before placement of the substituted pleadings in the open court file. 3. The Clerk of Court is further directed to unseal and place in the public portion of the court file the government's "Opposition to Petitioners' Motion Requesting an Order Directing the Government to File Redacted Pleadings in the Public Court Filc" [DE 156], which submission contains no descriptive references to the grand jury material in question. DONE AND ORDERED in Chambers at West Palm Beach, Florida this 18th day of June, 2013. United States District Judge cc. All counsel 4 EFTA00177810 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA/JOHNSON JANE DOE 1 AND JANE DOE 2, Plaintiffs v. UNITED STATES OF AMERICA, Defendant INTERN Liac, 14-1 \ftPPEAL , Intervenors Roy 1 Jeffrey Epstein hereby request that this Honorab c. (88), denying their Motion for a Protective O: p O G intervenor attorneys' written communications wi of Florida made with the specific purpose of otm investigation of Mr. Epstein through attorney-to-a whether to grant a stay pending appeal, the Cou: factors: "(1) the likelihood that the moving party will ultimately prevail on the merits of the appeal; (2) the extent to which the moving party would be irreparably harmed by denial of the stay; (3) the potential harm to opposing parties if the stay is issued; and (4) the public interest." Florida Businessmen for Free Enterprise v. City of Hollywood, 648 F.2d 956, 957 (11th Cir. 1981). See, e.g., In re Federal Grand Jury Proceedings (FGJ 91-9), Cohen, 975 F.2d 1488, 1492 (11th Cir. 1992). Those factors are amply satisfied in this case: there is a strong likelihood that intervenors will prevail on appeal (or at a minimum, EFTA00177811 they have a "substantial case on the merits," and the "harm factors" militate in favor of granting a stay, Medal Ltd. v. Cipla Ltd., 426 Fed.Appx. 915 (11th Cir. 2011), citing Hilton v. Braunskill, 481 U.S. 770, 778 (1987)); they will be immediately and irreparably harmed by the disclosure of the communications at issue; the plaintiffs will suffer no harm from the granting of a stay until these critically important issues can be resolved by the Eleventh Circuit; and to the extent that the public has an interest in the matter, it would favor considered appellate resolution of the issues presented prior to the release of the communications at issue. The Court's order is the first decision anywhere, insofar as undersigned counsel are aware, which has ordered disclosure to third party civil litigants of private and confidential communications between attorneys seeking to resolve a criminal matter favorably to their clients and government prosecutors. While framed as a disclosure order in this particular case, the Court's decision, which drastically reshapes the landscape of criminal settlement negotiations and sets at nought expectations of privacy, confidentiality, and privilege on which criminal defense attorneys have reasonably relied for many decades in negotiating with government attorneys on behalf of their clients, has potentially far-reaching and, intervenors contend, seriously deleterious consequences for the ability of attorneys nationwide to effectively represent their clients through open and candid communication with government counsel. The decision will have a predictably chilling effect on attorneys around the country, if they can no longer expect privacy and confidentiality in their written communications with prosecutors aimed at reaching a negotiated resolution to the case. Such communications often necessarily involve explicit or implicit admissions regarding their client's conduct — what he did, what he did not do, what he knew, what he intended, and the like — and the attorney's opinions regarding acceptable 2 EFTA00177812 resolutions of the matter, admissions and opinions which attorneys in many cases will be loath to commit to written form if they may be subject to later disclosure to civil adversaries of the attorney's client. This case is far from sui generis — the cases are legion in which there is related civil litigation seeking damages or other recovery from an individual who was the subject of criminal investigation or prosecution and in which, after becoming aware of this Court's decision, plaintiffs will begin clamoring for access to communications between defendants' counsel and prosecuting authorities in the belief that it may help support their civil case against the defendant. In addition to the stay factors addressed below, the importance of these issues for the functioning of the criminal justice system counsels in favor of granting the requested stay. Intervenors have standing under Perlman v. United States, 247 U.S. 7 (1918), to pursue an interlocutory appeal of the Court's order, and questions of privilege and confidentiality asserted by non-parties to the litigation arc paradigmatic examples of circumstances in which interlocutory appeals are allowed, yet the value of that appeal will be severely undercut, if not destroyed entirely, if a stay pending appeal is not granted. Forced disclosure of confidential or privileged communications cannot be undone on appeal; the protections afforded the documents will have been irretrievably lost before the appellate court can pass on the matter, to the intervenors' irremediable prejudice. For all the reasons addressed herein, the Court should grant the requested stay. 1. LIKELIHOOD OF SUCCESS ON THE MERITS.' Intervenors incorporate by reference herein the arguments set forth in their Motion for a Protective Order and Opposition to Motions of Jane Doe 1 and Jane Doe 2 for Production, Use, and Disclosure of Settlement Negotiations (Doc. 160); Supplemental Briefing of Intervenors Roy Black, Martin Weinberg, and Jay Lefkowitz in Support of Their Motion for a Protective Order Concerning Production, Use, and Disclosure of Plea Negotiations (Doc. 161); Intervenor Jeffrey Epstein's 3 EFTA00177813 A. The Applicability of Rule 410. Any assessment of the merits of the intervenors' contentions must begin with an understanding of the central role of plea bargaining and settlement negotiations in our criminal justice system and the Sixth Amendment protections which surround them. "Plea bargains are . . . central to the administration of the criminal justice system" because ours is "a system of pleas, not a system of trials": ninety-four percent of state convictions are the result of guilty pleas. The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours "is for the most part a system of pleas, not a system of trials," it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012). In Lafler and Frye, the Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel "extends to the plea bargaining process" and that defendants are entitled to "the effective assistance of competent counsel" during plea negotiations. Lafler, 132 S. Ct. at 1384; Frye, 132 S.Ct. at 1407-09 (2012). Under Lafler and Frye, counsel have an ongoing obligation to provide effective representation in plea bargaining and to engage in communications with the client and the prosecutor to discharge that obligation. Even before formal charges are brought, counsel Motion for a Protective Order and Opposition to Motions of Jane Doe 1 and Jane Doe 2 for Production, Use, and Disclosure of Plea Negotiations (Doc. 162); Notice of Supplemental Authority of the United States Supreme Court (Doc. 163); and Reply in Support of Supplemental Briefing By Limited Intervenors Black, Weinberg, Leticowitz, and Epstein (Doc. 169). 4 EFTA00177814 already addressed the issue in Fed. R. Crim. P. 11(0 and Fed. R. Evid. 410 and did not see fit to recognize a privilege for plea negotiation communications. Neither the Rules of Evidence nor the Rules of Criminal Procedure, however, have ever dealt with specifying the privileges which will and will not be recognized; instead, they leave that function to the courts under Rule 501. Nothing in Rules 11(0 or 410 suggest that Congress rejected (or even thought about) a privilege for attorney settlement/plea negotiation communications when framing those provisions. Rules 11(f) and 410 deal only with what is admissible; they do not purport to extend to what is discoverable. Rule 410 begins with the assumption that a litigant is in possession of plea negotiation materials, and thus the Rule describes the circumstances in which those materials may either be admitted or excluded from consideration at trial. it says nothing, however, about whether a nonparticipant in the plea negotiations is entitled to obtain those materials in discovery in the first instance. That question must be answered by reference to Fed. R. Civ. P. 26, which refers to Federal Rule of Evidence 501, which "empower[s] the federal courts to `continue the evolutionary development of [evidentiary] privileges." Adkins v. Christie, 488 F.3d 1324, 1328 (11th Cir. 2007), quoting Trammel v. United States, 445 U.S. 40, 47 (1980). The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement." United States v. Herman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived from "the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him." Id. at 796. The legislative history, too, "shows that the purpose of Rule 410 and Rule t I (e)(6) is to permit the 10 EFTA00177815 The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement." United States v. Herman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived from "the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him." Id. at 796 (emphasis added). Thus, the most reasonable construction of Rule 410 is that all plea discussions in this case were about offenses for which there was no plea of guilty, and therefore Rule 410 facially and fully applies. Any other reading would render Rule 410 ambiguous and would violate Mr. Epstein's Fifth Amendment rights. The rule's central feature is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement. Such candid discussion will often include incriminating admissions . . . To allow the government to introduce statements uttered in reliance on the rule would be to use the rule as a sword rather than a shield. This we cannot allow; the rule was designed only as a shield. Id. at 797. "Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress . . . The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988). B. Recognition of a Privilege Under Rule 501. The Court rejected intervenors' contention that the Court should recognize a privilege for communications in the course of settlement/plea negotiations on the ground that Congress has 9 EFTA00177816 The Court also rejected the applicability of Rule 410 because the communications between Epstein's counsel and the government led to Epstein's plea of guilty in state court. In the sole case cited by the Court for this proposition, United States v. Paden, 908 F.2d 1229 (5th Cir. 1990), the defendant pled guilty to federal charges pursuant to his plea agreement. That Mr. Epstein entered into a plea in state court to state offenses is irrelevant to the Rule 410 analysis. The plain meaning of Rule 410(4) is that the defendant must enter a plea in federal court relating to the federal offenses under investigation. If Congress had intended to include state court pleas in subsection (4), it would have expressly done so, as it did in subsection (3). There, Congress expressly provided for change-of-plea proceedings in federal court and "comparable state procedures." FED.R.EviD. 410(3). Congress did not provide for state court pleas in subsection (4) of the rule, and "where Congress includes particular language in one section of a statute but omits it in another . . . it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Keene Corp. v. United States, 508 U.S. 200, 208 (1993). Even when plea negotiations result in a guilty plea, not all statements made during those negotiations are thereby subject to disclosure. The plain meaning of Rule 410 is that any disclosure of plea negotiations must relate to the plea that was actually entered. The broad reading adopted by the Court would frustrate the purpose and policy of Rule 410. In this case, there was no plea to the offenses that the government was investigating or to the matters discussed in the plea negotiation letters and cmails. There was never a federal plea that closed out all the federal issues that were the subject of the continuing exchanges of letters and memos in which Mr. Epstein's counsel addressed the reasons why Mr. Epstein should not be federally prosecuted. 8 EFTA00177817 States v. Adelman, 458 F.3d 791 (8th Cir. 2006), also involved statements made by the defendant to federal prosecutors; the defendant's statements were made in meetings at which she was told, according to the government, that she was a "prime suspect" in criminal wrongdoing and that any statements she made could be used against her. Id. at 805. In United States v. Hare, 49 F.3d 447 (8th Cir. 1995), like the other two cases, the statements at issue were made by the defendant to prosecutors voluntarily and unconditionally in the unilateral hope of bettering his chances. Id. at 451. Under the Court's ruling, the attorneys for a person under federal criminal investigation may never enter into negotiations with the government with the primary aim of avoiding federal indictment entirely, no matter how serious and good faith those negotiations, without risking that anything they say on behalf of their clients in seeking to arrive at a negotiated settlement may in the future be used, either by the government or by adversarial third parties, to the severe detriment of their client. This is not and cannot be the law and is certainly unsound policy, and there is a substantial likelihood that the Eleventh Circuit will agree. Indeed, the Court's opinion creates an incentive for attorneys not to do precisely what Hickman v. Taylor, 329 U.S. 495 (1947), was intended to encourage attorneys to do: reduce facts, ideas, and opinions to writing. A return to the days of settlement/plea negotiations conducted through oral, rather than written, communications, which the Court's decision will encourage whenever the progress of the negotiations or the attainment of the desired objective require the attorney to communicate information which, if disclosed in another context, would be detrimental to the client's interests would serve no one's interests — not the defendant's, not the government's, not the judicial system's, and not the public's. 7 EFTA00177818 Contrary to the result reached by this Court, the settlement negotiations at issue here lie well within the heartland of Rule 410's prohibition against the admissibility of plea negotiations "against the defendant who was a participant in the plea discussions" "in any civil or criminal proceeding". The cases on which the Court relied in concluding that the settlement negotiations at issue here do not fall within Rule 410 are uniformly inapposite and do not support the proposition that the settlement negotiations in this case are not subject to the protections of Rule 410. United States v. Merrill, 685 F.3d 1002, 1013 (11th Cir. 2012), concerned statements made by the defendant himself in informal meetings with the prosecution prior to his scheduled grand jury testimony, see id. at 1007-08. The only discussions of leniency involved the government's generalized statement to the defendant that if he cooperated, the government would recommend leniency when he was sentenced. Id. Notably, the Court's ruling that the district court had not erred in refusing to suppress the defendant's statements rested on its conclusion that, given the circumstances, the defendant could not have reasonably believed that he was engaged in plea negotiations. Id. at 1013. The case does not stand for the general proposition advanced by the Court that settlement discussions in advance of the return of an indictment categorically do not fall within Rule 410.2 Moreover, the circumstances present here were dispositively different from those in Merrill. Here, the communications were made attorney-to-attorney under circumstances which leave no room to doubt that the panics were engaged in serious negotiations to resolve the federal criminal investigation of Epstein. United 2 In any event, there was, as the Court notes elsewhere in its opinion, an indictment pending in the state courts which was related to the matters under federal investigation and which was addressed during the settlement negotiations between intervenors and federal prosecutors. Moreover, there was an active federal grand jury investigation ongoing at the time of the settlement negotiations, further differentiating this case from the cases relied on by the Court. 6 EFTA00177819 representing a client under federal investigation have an obligation to secure the best possible outcome for their clients, whether it be one which results, as here, in no charges being brought by the prosecuting authority conducting the criminal investigation or the bringing of fewer, or less serious, charges against the client. Defense counsel cannot fulfill their professional obligations to their clients if they must temper their communications with the prosecution in the criminal settlement negotiation context for fear that disclosures made now will later enure to the clients' severe detriment in other litigation contexts. Defendants and people under criminal investigation would not engage in plea negotiations and waive their Fifth Amendment rights if they believed that statements made during those negotiations could be used against them later in litigation with third parties. Candid discussions simply cannot take place if defendants or persons under criminal investigation fear that statements made during negotiations can be divulged to third parties in other proceedings and used to harm them, send them to prison, or invalidate their bargains years after they have served prison sentences and suffered all the consequences of their deals. Few if any lawyers would engage in candid and open discussions with a prosecutor if their statements could later be used against their clients. The professional, ethical, and constitutional obligations of attorneys representing persons under investigation for, or charged with, crimes are terribly at odds with any ruling which exposes those negotiations to public scrutiny (or to the scrutiny of later litigation adversaries of the client) and makes them admissible in evidence to be used as ammunition to harm the clients, yet that is the very result which this Court's Order enshrines. The strong policy considerations mitigating against the result reached by the Court weigh heavily in favor of the likelihood of intervenors' success on appeal. 5 EFTA00177820 unrestrained candor which produces effective plea discussions between the . .. government and the . defendant." Committee on Rules of Practice And Procedure of The Judicial Conference of The United States, Standing Committee On Rules of Practice And Procedure, 77 F.R.D. 507 (February 1978) (emphasis added). For these reasons, criminal defense lawyers negotiate with prosecutors in an environment of confidentiality, fostered by the protections of Rules 410 and I I. These rules encourage a process of searching and honest disclosures, and parties expect that their negotiations, and the information they exchange, will be protected from future use by an adversary. And because criminal defense lawyers are required, by ethical and constitutional considerations, to engage in plea negotiations to discharge their duty to represent the client's best interest, they do so with the well-founded expectation that communications made during those negotiations will not later be used to harm the client. The Supreme Court has recognized that "Rules 410 and 11(e)(6) 'creat[e], in effect, a privilege of the defendant . . . .'" Mezzanatto, 513 U.S. at 204.This privilege encourages disposition of criminal cases by plea agreement, which is essential to the administration of justice: The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the states and the federal government would need to multiply by many times the number of judges and court facilities. Santobello v. New York, 404 U.S. 257, 260 (1971). "[Tjhe fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71 (1977). Those sentiments are just as true today. The Bureau of Justice Statistics of the 11 EFTA00177821 Department of Justice reports that in 2005, 96.1% of federal criminal cases were resolved by way of a plea bargain. www.ojp.itsdoj.gov/bjs/pub/htmVfjssV2005/1js05st.htm. That today's justice system depends on plea negotiations is a monumental understatement. '''N) Whether to negotiate a plea or contest a criminal charge "is ordinarily the most important single decision in any criminal case." Boria v. Keane, 99 F.3d 492 (2d Cir. 1996). In the age of the Sentencing Guidelines, with the severe sentences called for in federal criminal cases, minimum mandatories, and the abolition of parole, engaging in meaningful and effective plea negotiations is perhaps one of the most important roles of a criminal defense attorney. Today, the lawyer's "ability to persuade the judge or the jury is . . . far less important than his ability to persuade the prosecutor" during plea negotiations. United States v. Fernandez, 2000 WL 534449 (S.D.N.Y. May 3, 2000) at *I. Counsel's failure to discharge his duties during plea negotiations is malpractice: " [l]t is malpractice for a lawyer to fail to give his client timely advice concerning" pleas. Id. It also constitutes ineffective assistance of counsel, and violates the Constitution. Thus, counsel has a duty to advise clients fully on whether a particular plea is desirable, since "Ielffective assistance of counsel includes counsel's informed opinion as to what pleas should be entered." United States v. Villar, 416 F. Supp. 887, 889 (S.D.N.Y. 1976); Boria v. Keane, 99 F.3d 492, 497 (2d Cir. I 996), citing ABA Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992). Counsel also has a constitutional obligation to seek out information from the government, especially information that the government intends to use against the client. Failure to do so constitutes ineffective assistance of counsel. ain Rompilla v. Beard, 545 U.S. 374 (2005). 12 EFTA00177822 "The notion that defense counsel must obtain information that the state has and will use against the defendant is not simply a matter of common sense, . . . it is the duty of the lawyer . . . ." Id. at 387, citing I ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp). The Constitution also requires that criminal defense lawyers conduct "a prompt investigation of the circumstances of the case," and this includes making every effort to secure information directly from the prosecutors: The Supreme Court has "long . . . referred [to these ABA Standards] as `guides in determining what is reasonable.'" Id. at 387. It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty. Id. at 386, citing 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp). The lawyer's duty to investigate and obtain information from the prosecutor goes hand-in-hand with the lawyer's additional duty to "make suitable inquiry" to determine whether valid defenses exist. Jones v. Cunningham, 313 F.2d 347 (4th Cir. I 963) ("Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist"). And regardless of whether valid defenses exist, counsel has a duly to initiate plea negotiations if he is to discharge his duty to faithfully represent the client's interests. Hawkman v. Parratt, 661 F.2d 1161, 1171 (8th Cir. 1981)(counsel's "failure to initiate plea negotiations concerning the duplicitous felony counts constituted ineffective assistance of counsel which prejudiced Hawkman"). Reason and experience tell us that the system we have in place of sentencing laws, ethical 13 EFTA00177823 rules, federal court dockets, and constitutional considerations, will not function if plea negotiations are not privileged. After all, "it is immediately apparent that no defendant or his counsel [would] pursue [plea negotiations] if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt." Herman, 544 F.2d at 797. Plea negotiations are "rooted in the imperative need for confidence and trust," Jaffee v. Redmond, 518 U.S. 1, 10 (1996), and maintaining their confidentiality advances significant public and private ends. Discovery and use of plea negotiations will cause "a meaningful and irreparable chill" to the "frank and complete disclosures" that result in negotiated resolution of criminal matters. In re Air Crash Near Cali, Colombia, 957 F.2d at 1533. For these reasons, plea negotiations are properly subject to a common law privilege under Rule 501. II. THE SEVERE AND IRREMEDIABLE PREJUDICE TO INTERVENORS FROM DISCLOSURE OF THE COMMUNICATIONS. The communications which would be disclosed under the Court's order were made by intervenor attorneys on behalf of their client, intervenor Epstein as part of a full, open, and frank negotiation with government counsel directed toward resolving the federal criminal investigation of Mr. Epstein on the most favorable terms possible. Those communications were made with complete confidence that their contents would remain confidential, known only to counsel for the government and intervenors, and would not be subject to possible future disclosure to third parties, and certainly not to third parties seeking to use the contents of their attorney communications to harm their client. That belief was eminently reasonable and based on established practice and understandings regarding the confidentiality of such communications on which they relied in making those communications. The attorney intervenors' decisions 14 EFTA00177824 regarding the content of the communications sent to the government in the effort to fulfill their professional and ethical obligations to their client — what to say, how much to say, when to say it, and how to say it — were made in reliance upon those communications not being disclosed outside the attorney-to-attorney settlement negotiation process. Indeed, for the reasons addressed in the preceding section, the settlement/plea negotiation process so central to our system of criminal justice cannot function in the absence of counsel's ability to represent their clients vigorously in pursuing a favorable resolution for them through confidential communications with government counsel. Now, without persuasive precedent, the Court has drastically reshaped the settlement negotiation landscape to retroactively eliminate the reasonable expectation of confidentiality generated by Rule 410 and the work product privilege, in reliance on which these communications were authored by competent and responsible attorneys, that settlement communications between counsel would remain confidential and not be subject to disclosure to third parties seeking to harm their client and ordering the disclosure of the communications to Mr. Epstein's civil adversaries. If such communications are ultimately found on appeal to be entitled to remain confidential under Rule 410 and the work product privilege and/or found to be subject to Rule 501 common law privilege, as intervenors have every confidence they will be, their disclosure in advance of appellate resolution of the important issues raised in this case will inflict immediate and completely irremediable harm on intervenors, as, if disclosure is not stayed pending appeal, the protections of privilege and confidentiality will have been irretrievably lost. What has been disclosed cannot be undisclosed and returned to its protected state; the damage against which privilege and confidentiality rules arc designed to protect will have been done. IS EFTA00177825 The value to intervenors of their appeal to the Eleventh Circuit would be entirely vitiated, as, absent a stay, a victory on appeal cannot ever undo the injury already caused. And the anticipated damage here is not simply limited to disclosure to plaintiffs and their counsel, serious as that damage would be; as past is prologue, there can be little doubt, based on the prior conduct of plaintiffs and their attorneys, that these communications, if disclosed to them, will quickly make their way into the public press for wide-ranging dissemination. Because it is impossible for appellate courts to undo the damage caused by forced disclosure of privileged or confidential communications or information, courts have consistently recognized that the harm caused by an erroneous order to disclose privileged or confidential information is irreparable. See, e.g., In re Professionals Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009)(finding risk of irreparable harm because "a court cannot restore confidentiality to documents after they are disclosed"); Gill v. Guyitream Park Racing Ass'n, Inc., 399 F.3d 391, 398 (1st Cir. 2005)("once the documents are turned over to Gill with no clear limitation on what he may do with them, the cat is out of the bag, and there will be no effective means by which TRPB can vindicate its asserted rights after final judgment"); In re Perrigo Co., 128 F.3d 430, 437 (6th Cir.1997)("We find . . . that forced disclosure of privileged material may bring about irreparable harm"); In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994)(forced disclosure of privileged documents would cause irreparable harm). The serious and irreparable injury to intevenors from the Court's order weighs profoundly heavily in favor of granting a stay pending appeal. III. THE ABSENCE OF PREJUDICE TO THE PLAINTIFFS. 16 EFTA00177826 In stark contrast to the severe risk of serious and irreparable injury which the failure to grant a stay pending appeal would cause to intervenors stands the clear absence of prejudice to plaintiffs if a stay is granted. The plaintiffs commenced this action in 2008; they did not even seek disclosure of the communications at issue until two and a half years later, in March, 2011 (Doc. 51). Before doing so, plaintiffs had already moved for summary judgment (Doc. 48), a filing conveying plaintiffs' belief that the record as it existed at that juncture was sufficient to demonstrate their entitlement to the requested relief. That motion remains pending, and no trial date has been set. Indeed, the plaintiffs knowingly sat on their CVRA claims for years.as_Mr. Epstein served a prison sentence in solitary confinement and as he satisfied all the requirements of his non-prosecution agreement. Rather than seek emergency relief from the Court, the plaintiffs appeared at a status conference on July 11, 2008, knowing that Mr. Epstein was in prison, and they told the Court that they saw no reason to proceed on an emergency basis. [Trans. July 11, 2008 at 24-25]. In a hearing one month later, the plaintiffs specifically asked that the Court not invalidate the non-prosecution agreement because they wanted to make sure not to undo any benefits they could gain from it. [Trans. August 14, 2008 at 4]. There will he no prejudice to plaintiffs from waiting until an appellate court can address the critically important issues at stake here. If they are entitled to relief— something intervenors strenuously deny — they will obtain it, and the timing of that relief matters little, if at all. Having been in no hurry to seek rescission of the non-prosecution agreement, plaintiffs should not now be heard to contend that the time awaiting appellate resolution really matters. To the extent that communications authored by Mr. Epstein's counsel and sent to federal prosecutors during settlement negotiations could ever, arguendo, be deemed relevant to 17 EFTA00177827 plaintiffs' action against the government for alleged breaches of their rights under the CVRA,' a dubious proposition at best, any such relevance could be no more than tangential. Plaintiffs already know full well what the government did or did and did not do with respect to communicating with them during the course of the negotiations; the communications of Mr. Epstein's counsel could add little, or, more likely, nothing to the plaintiffs' quantum of proof. Moreover, the government has made it abundantly plain that, whatever the outcome of this litigation, the agreement it made with Mr. Epstein will stand. indeed, controlling Supreme Court case law prevents it from doing otherwise. Mr. Epstein has fully performed his side of the bargain with the government, and when a bargain is based "on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257 (1971). Failure to enforce the government's side of a plea bargain violates Due Process. United States v. Yesil, 991 F.2d 1527, 1532-33 (11th Cir. 1992). Mr. Epstein has a Due Process right to the continued specific performance and enforcement of the non-prosecution agreement. United States v. Haber, 299 Fed. Appx. 865, 867 (11th Cir. 2008). Rescission of the non-prosecution agreement at this juncture would, moreover, undermine Mr. Epstein's reasonable expectations of finality in a contract into which he entered with the government, a particularly inequitable result where it was the government, alone, which had duties to third parties under the CVRA. Relying on the non- prosecution agreement, Mr. Epstein served his state sentence in a county jail, served community control probation, paid huge legal fees under his obligation to the attorney representing certain The Court's order expressly did not rule on whether any particular piece of correspondence was relevant or admissible. Doc. 188 at 10. 18 EFTA00177828 alleged victims who were relying on the non-prosecution agreement to seek damages under 18 javul, PO( ate( „Yin Doeit 2, U.S.C. §2255, and paid civil settlements to these—elaimanIs. because the non-prosecution agreement precluded his contesting liability. The rescission remedy sought by plaintiffs could never restore the status quo to Mr. Epstein or to the third-party beneficiaries of the agreement. Other civil settlements would also not have occurred but for the non-prosecution agreement.' Even if the Court could validly set aside the non-prosecution agreement based on the alleged violations of the CVRA, which intervenors maintain that it cannot, although they acknowledge that the Court has ruled otherwise (Doe. 189), the ultimate result under both contract and constitutional law would be the re-entry of the non-prosecution agreement after compliance by the government with its obligations under the CVRA. The confidentiality and privilege rights of intervenors should not be destroyed, as they would be by the failure to grant a stay pending appeal, for so little reason. IV. THE PUBLIC INTEREST. There is no interest of the public which will be harmed by the granting of the requested stay. Ordinarily the public may have little interest at all in a dispute between private civil litigants regarding access to documents. I The public does, however, have a great interest in the fair conduct of plea negotiations — an interest that is profoundly affected by the Court's Order of June 18, 2013. Since more than 95% of all criminal cases are resolved by pleas, the public must have an interest in how the courts function in regard to pleas. The public needs to see that justice not only is done but appears to be done in the courts and would likely regard the Court's new In addition, the State Attorney relied on the non-prosecution agreement when returning a criminal charge that resulted not from the actions of the grand July but instead as a corollary of the non-prosecution agreement. 19 EFTA00177829 rule of disclosure to private litigants as introducing injustice and unfairness into the settlement/plea negotiation process. The public's interest strongly lies in awaiting appellate resolution of the important issues raised in this case before forcing disclosure of documents which there is a substantial likelihood the appellate court will rule are not subject to disclosure and where the implementation of an un-stayed district court order will risk a change in the way in which attorneys provide effective assistance of counsel to defendants in the pivotal plea bargaining stages that are at issue in this matter. 20 EFTA00177830 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 1 of 16 WM U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE #: 9:08-cv-80736—KAM Doe v. United Stat Assigned to: Judge Cause: no cause speci is petitioner Jane Doe V. Respondent United States of America Jntervenor Date Filed: 07/07/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant represented by Bradley James Edwards Farmer Jaffe Wcissing Edwards Fistos &Lehrman PL 425 N Andrews Avenue Suite 2 Fort Lauderdale, FL 33301 954-524-2820 Fax: 954-524-2822 Email: bradepathtojustice coin LEAD ATTORNEY ATTORNEY TO BE NOTICED Jay C. Howell Jay Howell &Associates PA 644 Cesery Boulevard Suite 250 Jacksonville, FL 32211 Email: jay@jayhowell.enni PRO HAC VICE ATTORNEY TO BE NOTICED Paul G. Cassell Email: PRO HAC VICE ATTORNEY TO BE NOTICED represented by Ann Marie C. Villafana United States Attorney's Office 500 South Australian Ave Suite 400 West Palm Beach, FL 33401 561—820-8711 Fax: 820-8777 Email: mm,marie.c.villafana@usdoj gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Dexter Lee United States Attorney's Office 99 NE 4 Street Miami, FL 33132 305-961-9320 Fax: 530-7139 email: dexter Ite@usdoj goy LEAD ATTORNEY ATTORNEY TO BE NOTICED EFTA00177831 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 2 of 16 Roy Black Black, Srebnick, Komspan &Stumpf, P.A. 201 South Biscayne Boulevard Suite1300 Miami, FL 33131 305-371-6421 intervenor Martin G. Weinberg J ntervenor Jay Lefkowitz represented by Jacqueline Perczek Black Srebnick Komspan &Stumpf 201 S Biscayne Boulevard Suite 1300 Miami, FL 33131 305-371-6421 Fax: 305-358-2006 Email: pleadinarqyblack com ATTORNEY TO BE NOTICED Jay P. Lefkowitz Kirkland &Ellis, LLP 601 Lexington Avenue New York, NY 10022 212-446-4970 Email: leflcowitztacirkland com PRO HAC VICE ATTORNEY TO BE NOTICED Martin G. Weinberg Martin G. Weinberg, P.C. 20 Park Plaza Suite 1000 Boston, MA 02116 617-227-3700 Fax: 338-9538 Email: owlmevoitatt.net PRO HAC VICE ATTORNEY TO BE NOTICED Roy Eric Black Black Srebnick Komspan &Stumpf 201 S Biscayne Boulevard Suite 1300 Miami, FL 33131 305-371-6421 Fax: 358-2006 Email: pleadina@rovblack.cqm ATTORNEY TO BE NOTICED represented by Jacqueline Perczek (See above for address) ATTORNEY TO BE NOTICED Jay P. Lefkowitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Martin G. Weinberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED represented by Jacqueline Perczek (See above for address) ATTORNEY TO BE NOTICED Jay P. Lefkowitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED EFTA00177832 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 3 of 16 Marlin G. Weinberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED Intervenor Bruce Reinhart Bruce E. Reinhart, P.A. 250 S. Australian Avenue Suite 1400 West Palm Beach, Fl 33401 561-202-6360 Intervenor Jeffrey Epstein represented by Bruce Reinhart McDonald Hopkins, LLC 505 South Flagler Drive Suite 300 West Palm Beach, FL 33401 561-472-2121 Fax: 561-472-2122 Email: bminliaff@MC40naklhillikinaSan ATTORNEY TO BE NOTICED represented by Jacqueline Perczek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # Docket Text 07/07/2008 1 EMERGENCY PETITION for Victim's Enforcement of Crime Victim's Rights Act 18 USC 3771 against United States of America Filing fee $ 350. Receipt#: 724403, filed by Jane Doe.(rb) (Entered: 07/07/2008) 07/07/2008 2 CERTIFICATE OF EMERGENCY by Jane Doe reJ Complaint (rb) (Entered: 07/07/2008) 07/07/2008 1 ORDER requiring U.S. Attorney to int filed by Jane Doe by 5:00 p.m. on 7/9/08. Signed by Judge on 7/7/08. (ir) (Entered: 07/07/2008) 07/09/2008 4 NOTICE of Attorney Appearance by Dexter Lee on behalf of United States of America (Lee, Dexter) (Entered: 07/09/2008) 07/09/2008 6 Scaled Document. (rb) UNSEALED see DE12 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 7 Sealed Document (rb) UNSEALED see DE12 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 8 Sealed Document. (rb) UNSEALED see DE14 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 12 UNSEALED MOTION to Seal Response to Victim's Emergency Petition by United States of America. (previously filed as 6 sealed document) (bs) (Entered: 07/15/2008) 07/09/2008 il UNSEALED RESPONSE tot Emergency Petition for Enforcement of Crime Victim Rights Act filed by United States of America. (previously filed as 7 sealed document) (In) (Entered: 07/15/2008) 07/09/2008 1.4 UNSEALED DECLARATION signed by : A. Marie Villafana. re1.1 Response to Victim's Emergency Petition by United States of America. (previously filed as 8 sealed document) (bs) (Entered: 07/15/2008) 07/10/2008 I ORDER SETTING HEARING: Petitioner's Emergency Petition for Enforcement of Crime Victim's Rig /2008 10:15 AM igara&gigialigh Division before Judge . Signed by Judge on 7/10/08. (ir) (Entered: EFTA00177833 Case: 9:08-cv-80736-KAM AS of: 06/26/2013 07:08 PM EDT 4 of 16 07/11/2008 2 REPLY to Response (under seal) ref Complaint/Emergency Petition, and Objection to Government's Motion for Sealing of Pleadings filed by Jane Doe. (Is) (Entered: 07/11/2008) 07/11/2008 10 Minute Entry for proceedings held before Judge : Miscellaneous Hearing held on 7/11/2008. Court will issue order to unsea p ea • ings. Court Reporter: Official Reporting Service— phone number 305-523-5635 (ir) (Entered: 07/11/2008) 07/11/2008 IL ORDER Denying Motion to Seal re t, 6 Sealed Document, 8 Sealed Document. Signed by Judge on 7/11/2008. (Is) (Additional attachment(s) added on : ocket sheet) (bs). (Entered: 07/14/2008) 07/17/2008 11 TRANSCRIPT of Hearing held on 7/11/2008 before Judge d Court Reporter: Victoria Aiello— phone number 954-467 ) (Entered: 07/18/2008) 07/28/2008 1.Q. MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filing for Paul G. Cassell, Filing Fee $75, Receipt #724532. (cw) (Entered: 07/28/2008) 07/29/2008 J1 NOTICE by United States of America To Court Regarding Absence of Need for Evidentiary Hearing (Lee, Dexter) (Entered: 07/29/2008) 07/30/2008 18 ENDORSED ORDER granting Paul G. Cassell1Q Motion for Limited Appearance, Consent to Designation and Reques eceive Notices of Electronic Filings. Signed by Judge on 7/29/08. (ir) (Entered: 07/30/2008) 08/01/2008 12 RESPONSE/REPLY to Goverment's Notice to Court Regarding Absence of Need for Evidentiary Hearing and Motion for Production of Non—Prosecution Agreement and of Report of Interview filed by Jane Doe. (Attachments: #1 Exhibit Proposed Stipulation, #.2 Exhibit July 17,2008 Letter, #1 Exhibit July 3,2008 LetterXEdwards, Bradley) (Entered: 08/01/2008) 08/08/2008 20 MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filing for Jay C. Howell, Filing Fee $75, Receipt #724591. (cw) (Entered: 08/12/2008) 08/13/2008 21 ENDORSED ORDER granting Jay C. HowelL2Q Motion for Limited Appearance, Consent to Designation and Reques eceive Notices of Electronic Filings. Signed by Judge on 8/12/08. (ir) (Entered: 08/13/2008) 08/13/2008 22 NOTICE by United States of America re12 Response/Reply (Other), Response/Reply (Other) Government's Response to Petitioners' Request for Non—Prosecution Agreement and Report of Interview (Lee, Dexter) (Entered: 08/13/2008) 08/13/2008 21 ORDER Setting Status Conference: Status 8/14/2008 03:30 PM in West Palm Beach Division before Judge . Parties may contact the courtroom deputy at 561-51 — angements to appear telephonically. Signed by Judge on 8/13/08. (ir) (Entered: 08/13/2008) 08/14/2008 25 Minute Entry for proceedings held before Judgel. .: Status Conference held on 8/14/2008. Court Reporter: tep en r in— phone number 561-514-3768 (ir) (Entered: 08/21/2008) 08/20/2008 24 NOTICE of Instruction to Filer: re/2, Notice (Other) filed by United States of America Error: Wrong Event Selected; Instruction to filer — In the future please select the proper event. (Is) (Entered: 08/20/2008) 08/21/2008 2¢ ORD RODUCTION AND PROTECTIVE ORDER. Signed by Jud e on 8/21/08. (ir) (Entered: 08/21/2008) 08/22/2008 22 TRANSCRIPT of Hearing held on 8/14/2008 before Judgepill . Court Reporter: Stephen Franklin — phone number 561-51 pages. abd) EFTA00177834 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 5 of 16 (Entered: 08/25/2008) 09/25/2008 a MOTION to Unseal Document Non—Prosecution Agreement by Jane Doe. Responses due by 10/14/2008 (Attachments: #J, Text of Proposed OrderxEdwards, Bradley) (Entered: 09/25/2008) 10/08/2008 2s RESPONSE in Opposition rela MOTION to Unseal Document Non—Prosecution Agreement filed by United States of America. (Villafana, Ann Marie) (Entered: 10/08/2008) 10/16/2008 11 RESPONSE/REPLY toj2 Response in Opposition to Motion to Unseal Non—Prosecution Agreement filed by Jane Doe. (Attachments: fll. Exhibit October 9, 2008 letter from Brad Edwards, Esquire to AUSA Dexter Lee, #.2 Exhibit October 15, 2008 Letter from Brad Edwards, Esquire to AUSA Dexter Lee)(Edwards, Bradley) (Entered: 10/16/2008) 10/16/2008 31 REPLY to Response to Motion re/a MOTION to Unseal Document Non—Prosecution Agreement filed by Jane Doc. [See Image at DE #30) (Is) (Entered: 10/17/2008) 10/17/2008 Clerks Notice of Docket Correction and Instruction to Filer re/a Response/Reply (Other), Response/Reply (Other) filed by Jane Doe. Error — Wrong Event Selected; Correction — Redocketed by Clerk as Reply to Response to Motion. Instruction to Filer — In the future, please select the proper event. It is not necessary to refile this document. (Is) (Entered: 10/17/2008) 12/05/2008 33 Sealed Document. (rb) (Entered: 12/05/2008) 12/05/2008 3, CM )r \ ,......_Z YSTEM ENTRY — Docket Entry 32 restricted/sealed until further notice. (dj) en tered: 11/03/2010) 12/09/2008 34 Clerks Notice of Docket Correction re 33 Sealed Document. Error(s): Sealed Document Filed in Wrong Case; Correction — Original document restricted and reified in correct case. (rb) (Entered: 12/09/2008) 12/22/2008 31 AFFIDAVIT signed by : A. Marie Villafana. reJ.4 Affidavitja Response/Reply (Other) Supplemental Declaration by United States of America. (Attachments: #_1. Certification Certificate of Service)Villafana, Arm Marie) (Entered: 12/22/2008) 02/12/2009 la rfajdenying/a Motion to Unseal Document. Signed by Judge- on 2/12/2009. (ir) (Entered: 02/12/2009) 04/09/2009 E NOTICE by Jane Doe of Change of Finn Affiliation (Edwards, Bradley) (Entered: 04/09/2009) 09/08/2010 a Administrative Order Closing Case. Signed by Judge on 9/8/2010. (tb) (Entered: 09/09/2010) 09/13/2010 32 NOTICE by Jane Doe lel& Administrative Order In Response to Administrative Order Closing Case (Edwards, Bradley) (Entered: 09/13/2010) 10/12/2010 AI ORDER TO SHOW CAUSE for ' n. Show Cause Response due by /12/20 10/27/2010. Signed by Judge on 10/8/2010. (ir) (Entered: 10 10) 10/27/2010 41 STATUS REPORT by Jane Doe (Edwards, Bradley) Modified to add missing event 42 Response to Order to Show Cause on 10/28/2010 (Is). (Entered: 10/27/2010) 10/27/2010 42 RESPONSE TO ORDER TO SHOW CAUSE by Jane Doe. (ls)(See Image at DE # AI ) (Entered: 10/28/2010) 10/28/2010 43 Clerks Notice to Filer rej]. Status Report. Two or More Document Events Filed as One; ERROR — Only one event was selected by the Filer but more than one event was applicable to the document filed. The docket entry was corrected by the Clerk. It is not necessary to refile this document but in the future, the Filer must select all applicable events. (Is) (Entered: 10/28/2010) EFTA00177835 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 6 of 16 10/28/2010 44 ORDER REOPENING CASE. Signed by Judge on 10/28/2010. (ir) (Entered: 10/28/2010) 12/17/2010 Al STATUS REPORT by United States of America (Villafana, Ann Marie) (Entered: 12/17/2010) 03/18/2011 44 Unopposed MOTION for Leave to File Excess Pages of Statement of Facts in Support of their Motion for Finding of Violations of the Crime Victims' Right Act by Jane Doe. (Attachments: #1 Text of Proposed Order)(Edwards, Bradley) Modified on 3/18/2011 (Is). (Entered: 03/18/2011) 03/18/2011 42 • Motion for Leave to File Excess Pages. Signed by Judge on 3/18/2011. (ir) (Entered: 03/18/2011) 03/21/2011 a Plaintiff's MOTION for Summary Judgment REDACTED— Jane Doe #1 and Jan Doe #2's Motion for Finding of Violations of the Crime Victims' Rights Act and Request,* Hearing on Appropriate Remedies by Jane Doe. Responses due by 4/7/2011 (Attachments: #1 Exhibit A—SEALED, #.2 Exhibit B, #1 Exhibit C, #.4 Exhibit D, #1 Exhibit E, #.¢ Exhibit F, #_2 Exhibit 0, #1 Exhibit H, #1 Exhibit I, kill Exhibit J, #11 Exhibit K)(Edwards, Bradley). Added MOTION for Hearing on appropriate remedies on 3/23/2011 (lh). (Entered: 03/21/2011) 03/21/2011 a Plaintiff's MOTION Jane Doe #1 and Jane Doe #2's Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts by Jane Doe. (Edwards, Bradley) (Entered: 03/21/2011) • 03/21/2011 52 Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence by Jane Doe. (Attachments: #1 Exhibit A, #2 Text of Proposed Order PROPOSED ORDER)(Edwards, Bradley) (Entered: 03/21/2011) 03/21/2011 a Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion to Use Correspondence to Prove Violations of the Crime Victims' Right Act and to Have Their Unredacted Pleadings Unsealed by Jane Doe. (Edwards, Bradley) (Entered: 03/21/2011) 03/22/2011 %S.\) ---- C YSTEM ENTRY — Docket Entry 52 restricted/sealed until further notice. (mg) ntered: 03/22/2011) ) 03/23/2011 53 Clerks Notice to Filer rya Plaintiffs MOTION for Summary Judgment REDACTED— Jane Doe #1 and Jan Doe #2's Motion for Finding of Violations of the Crime Victims' Rights Act and Request for Hearing on Appropriate Remedies MOTION for Hearing. Motion with Multiple Reliefs Filed as One Relief; ERROR — The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (Ih) (Entered: 03/23/2011) 03/28/2011 a NOTICE by Roy Black re1Q Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidencejj. Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion to Use Correspondence to Prove Violations of the Crime Victims' Right Act and to Have Their Unredacted Pleadings Unsealed NOTICEOF OBJECTION (Black, Roy) (Entered: 03/28/2011) 04/04/2011 51 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Martin Weinberg. Filing Fee $ 75.00. Receipt # 16719. (ksa) (Entered: 04/05/2011) 04/07/2011 a MOTION to Intervene of Roy Black, Martin Weinberg, and Jay Leficowitz by Roy Black. (Perczek, Jacqueline) (Entered: 04/07/2011) 04/07/2011 a Defendant's MOTION for Leave to File Memorandum of Law In Excess of Twenty Pages by United States of America. (Attachments: #1 Exhibit A, #.2 Text of Proposed Order)(Lee, Dexter) (Entered: 04/07/2011) EFTA00177836 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 7 of 16 04/07/2011 51 RESPONSE in Opposition roa Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts filed by United States of America. (Lee, Dexter) (Entered: 04/07/2011) 04/07/2011 52 RESPONSE in Opposition rejQ Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence filed by United States of America. (Lee, Dexter) (Entered: 04/07/2011) 04/07/2011 2 RESPONSE in Opposition rejj Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion to Use Correspondence to Prove Violations of the Crime Victims' Right Act and to Have Their Unredacted Pleadings Unsealed filed by United States of America. (Lee, Dexter) (Entered: 04/07/2011) 04107/2011 71 Clerks Notice to Filer. Parties Not Added; ERROR — The Filer failed to add all parties indicated on [DE #56]. The correction was made by the Clerk. It is not necessary to refile this document but all future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (mb) (Entered: 04/20/2011) 04/08/201 I 61 ENDORSED ORDER granting.5,2 Motion for Leave to File Memorandum of Law in Excess of Twenty Pages. Clerks Notice: Filer must separately re—file the amerw __ . elpleadingpw- r± u mlessotherwiseorderedbytlw Judge. Signed by Judgeon 4/8/11. ir (Entered: 04/08/2011) RESPONSE in Opposition re-9,$Plaintiffs MOTION for Summary Judgment REDACTED— Jane Doe #1 and Jan Doe #2's Motion for Finding of Violations of the Crime Victims' Rights Act and Request for Hearing on Appropriate Remedies MOTION for Hearing filed by United States of America. (Lee, Dexter) (Entered: 04/08/2011) 04/08/201 1 a 04/08/2011 ...... a ) SYSTEM ENTRY — Docket Entry 63 restricted/scaled until further notice. (dj) (Entered: 04/08/2011) 04/08/2011 6 SYSTEM ENTRY — Docket Entry 64 restricted/sealed until further notice. (dj) (Entered: 04/08/2011) 04/13/2011 fi MOTION for Extension of Time to File Response/Reply as toll Plaintiffs MOTION for Summary Judgment REDACTED— Jane Doe #1 and Jan Doe #2's Motion for Finding of Violations of the Crime Victims' Rights Act and Request for Hearing on Appropriate Remedies MOTION for Hearing Jane Doe #1 and Jane Doe #2 Unopposed Motion for Two Week Extension of Time and For Permission to File an Overlength Reply to Government responses to Their Motions by Jane Doe. (Attachments: #1 Text of Proposed Order)(Edwards, Bradley) (Entered: 04/13/2011) 04/14/2011 I ORDER grantingil Motion for Extension of Time to File Response/Reply rea Plaintiffs MOTION for Summary Judgment REDACTED— Jane Doe #1 and Jan Doe #2's Motion for Finding of Violations o the Crime Victims' Rights Act and Request for Hearing on Appro ' OTION for Hearing. Replies due by 5/2/2011. Signed by Judge on 4/14/2011. (ir) (Entered: 04/14/2011) 04/14/2011 a MOTION for Extension of Time to File Response/Reply as toin MOTION to Intervene of Roy Black Martin Weinberg, and Jay Lefkowitz Jane Doe #1 and Jane Doe #2 Unopposed Motion for Extension of Time to Coordinate Filing Deadline for Responding to Motion to Intervene by Jane Doe. (Attachments: #J. Text of Proposed Order)(Edwards, Bradley) (Entered: 04/14/2011) 04/14/2011 2 MOTION to Appear Pro Rae Vice, Consent to Designation, and Request to Electronically Receive Nod= of Electronic Filing for Jay Lefkowitz. Filing Fee $ 75.00. Receipt # 17328. (ksa) (Entered: 04/15/2011) 04/18/2011 69 ENDORSED ORDER granting 67, Motion for Extension of Time to File Response/Reply rein MOTION to Intervene of Roy Black, nd Jay Lefkowitz. Responses due by 5/2/2011. Signed by Judge on 4/18/2011. (ir) (Entered: 04/18/2011) EFTA00177837 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 8 of 16 04/18/2011 In ORDER granting Jay Lefltowitzfia Motion to Appear Pro Hac Vice, Consent to Designation, an nically Receive Notices of Electronic Filing. Signed by Judge on 4/18/2011. (ir) (Entered: 04/18/2011) 04/20/2011 72 ENDORSED ORDER granting Martin Weinberg] Motion to Appear Pro Hac Vice, Consent to Designation, and 'Wily Receive Notices of Electronic Filing. Signed by Judge on 4/20/2011. (ir) (Entered: 04/20/2011) 04/26/2011 fl ORDER granting [Sealed DE 63] Motion to Seal Appendix to United States Response in Opposition to Petitioner's Motion to use correspondence to prove violations of the • Mil t and to their =redacted pleadings unsealed. Signed by Judge on 4/26/2011. (ir) (Entered: 04/26/2011) 05/02/2011 li REPLY to Response to Motion rell. Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion to Use Correspondence to Prove Violations of the Crime Victims' Right Act and to Have Their Unredacted Pleadings Unsealed Jane Doe #1 and Jane Doe #2 Reply to Government's Response to their Motion to Use Correspondence to Prove Violations of the Crime Victims' rights Act and to Have their Unredacted Pleadings Unsealed filed by Jane Doe. (Edwards, Bradley) (Entered: 05/02/2011) 05/02/2011 11 REPLY to Response to Motion rei2 Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Facts Jane Doe #1 and Jane Doe #2's Reply to Government's Response to Their Motion to have Their Facts Accepted Because of the Government's Failure to Contest Any of The Facts filed by Jane Doe. (Edwards, Bradley) (Entered: 05/02/2011) 05/02/2011 a REPLY to Response to Motion rein Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence Jane Doe #1 and Jane Doe #2 Reply to Government's Response to Motion for Order Directing The US Attorney's Office Not to Withhold Relevant Evidence filed by Jane Doe. (Edwards, Bradley) (Entered: 05/02/2011) 05/02/2011 22 REPLY to Response to Motion cell Plaintiffs MOTION for Summary Judgment REDACTED— Jane Doe #1 and Jan Doe #2's Motion for Finding of Violations of the Crime Victims' Rights Act and Request for Hearing on Appropriate Remedies MOTION for Hearing Jane Doe #1 and Jane Doe #2's Repo', to Government's Response to Their Motion for Finding of Violations of the Crime Victims' Rights Act and Request for a Hearing on Appropriate Remedies filed by Jane Doe. (Edwards, Bradley) (Entered: 05/02/2011) 05/02/2011 la RESPONSE to Motion rein MOTION to Intervene of Roy Black, Martin Weinberg, and Jay Lefkowitz Jane Doe #1 and Jane Doe #2 Response to Motion to Intervene of Roy Black, Martin Weinberg, and Jay Lefkowitz filed by Jane Doe. Replies due by 5/12/2011. (Edwards, Bradley) (Entered: 05/02/2011) 05/03/2011 22 MOTION to Intervene, MOTION for Sanctions by Bruce Reinhart. (Attachments: #1 Motion for Sanctions)(Reinhart, Bruce) (Entered: 05/03/2011) 05/12/2011 fa REPLY to Response to Motion rein MOTION to Intervene of Roy Black, Martin Weinberg, and Jay Lefkowitz filed by Roy Black, Jay Lefkowitz, Martin G. Weinberg. (Perczek, Jacqueline) (Entered: 05/12/2011) 05/16/2011 El RESPONSE in Opposition rel2 MOTION to Intervene MOTION for Sanctions Jane Doe #1 and Jane Doe #2's Response to Motion to Intervene of Bruce Reinhart filed by Jane Doe. (Edwards, Bradley) (Entered: 05/16/2011) 05/16/2011 fa MOTION Motion to Supplement Authorities rein Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence Jane Doe #1 and Jane Doe #2 Motion to Supplement Authorities in Support of Their Motion for an Order Directing the US Attorneys Office Not to Withhold Relevant Evidence by Jane Doe. (Attachments: #1 Exhibit OPR May 2011 Letter, #.2 Text of Proposed Order)(Edwards, Bradley) (Entered: 05/16/2011) EFTA00177838 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 9 of 16 05/23/2011 la REPLY to Response to Motion re12 MOTION to Intervene MOTION for Sanctions OR IN THE ALTERNATIVE FOR A SUA SPONTE RULE 11 ORDER filed by Bruce Reinhart. (Reinhart, Bruce) (Entered: 05/23/2011) 05/30/2011 M RESPONSE in Opposition reji MOTION Motion to Supplement Authorities re IQ Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence Jane Doe #1 and Jane Doe &MOTION Motion to Supplement Authorities realQ Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence Jane Doe #1 and Jane Doe &MOTION Motion to Supplement Authorities magi Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence Jane Doe #1 and Jane Doe &filed by United States of America. (Lee, Dexter) (Entered: 05/30/2011) 06/17/2011 fd Notice of Supplemental Authority ma& Plaintiffs MOTION for Summary Judgment REDACTED— Jane Doe #1 and Jan Doe #2's Motion for Finding of Violations of the Crime Victims' Rights Act and Request for Hearing on Appropriate Remedies MOTION for Hearing Jane Doe #1 and Jane Doe #2's Notice of Newly—Available Supplemental Authority in Support of Their Motion for Finding of Violations of the Crimes Victims Rights Act by Jane Doe (Attachments: #1, Exhibit Exhbit AXEdwards, Bradley) (Entered: 06/17/2011) 06/23/2011 1¢ ORDER grantingla Motion to Supplement Authorities in Support of their Motion for an Order Directing the ice Not to Withhold Relevant Evidence. Signed by Judge on 6/23/2011. (ir) (Entered: 06/23/2011) 06/23/2011 12 ORDER Setting Hearing on pending motions:22 MOTION to Intervene MOTION for Sanctions,16 MOTION to Intervene of Roy Black, Martin Weinberg, and Jay Leftowitz,aPlaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of the Factsj.1, Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion to Use Correspondence to Prove Violations of the Crime Victims' Right Act and to Have Their Unredacted Pleadings Unsealed,A$ Plaintiffs MOTION for Summary Judgment REDACTED— Jane Doe #1 and Jan Doe #2's Motion for Finding of Violations of the Crime Victims' Rights Act and Request for Hearing on Appropriate Remedies MOTION for Hearing,52 Plaintiffs MOTION Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence : Moti 8/12/2011 02:00 P West on 6/23/2011. (ir) (Ente . .. Signed by Judge Mi ch Division before Judge 07/09/2011 la RESPONSE/REPLY toll Notice of Supplemental Authority„ by United States of America. (Lee, Dexter) (Entered: 07/09/2011) 08/12/2011 89 Minute Entry for proceedings held before Judger! Pending Motion Hearing held on 8/12/2011. Court Repo er: em a ocico, Consor and Associates, 561-682-0905 (ir) (Entered: 08/12/2011) 08/19/2011 2Q NOTICE by United States of America of Filing Department ofJustice, Office of Legal Counsel Opinion (Attachments: #1 Exhibit A)(Lee, Dexter) (Entered: 08/19/2011) 08/22/2011 91. Unopposed MOTION for Extension of Time to File Supplemental Briefing by Proposed Intervenors reifi MOTION to Intervene of Roy Black, Martin Weinberg, and Jay LeJkowitz, 89 Motion Hearing by Roy Black. Responses due by 9/9/2011 (Perczek, Jacqueline) (Entered: 08/22/2011) 08/23/2011 92 ENDORSED ORDER grantingll Motion for Extension of Time TO File Supplemental Briefmg by Proposed Intervenors reld MOTION to Intervene of LtoyB1acla ayLef vitz. Supplemental brief due 9/2/11. Signed by Judge on 8/23/2011. ir (Entered: 08/23/2011) 09/02/2011 Qa MOTION to Intervene For Limited Intervention by Jeffrey Epstein. (Attachments: #1 Exhibit A — Motion For Protective OrderXPerczek, Jacqueline) (Entered: 09/02/2011) EFTA00177839 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 10 of 16 09/02/2011 a SUPPLEMENT toff MOTION to Intervene of Roy Black, Martin Weinberg, and Jay LeJkowitz by Roy Black (Perczek, Jacqueline) (Entered: 09/02/2011) 09/16/2011 22 Unopposed MOTION for Extension of Time to File Response/Reply as toil MOTION to Intervene For Limited Interventional Supplement by United States of America. (Attachments: #1, Text of Proposed OrderXVillafana, Ann Marie) (Entered: 09/16/2011) 09/16/2011 2¢ RESPONSE in Opposition re/1 MOTION to Intervene For Limited Intervention Jane Doe #1 and Jane Doe #2 Response to Motion for "Limited" Intervention of Jeffrey Epstein filed by Jane Doe. (Attachments: #J, Exhibit A)Edwards, Bradley) (Entered: 09/16/2011) 09/19/2011 22 ORDER granting/2 Motion for Extension of Time to File Response/Reply toil MOT or Limited Intervention by Jeffrey Epstein. Signed by Jude on 9/19/2011. (ir) (Entered: 09/19/2011) 09/25/2011 911 RESPONSE to Motion re/2 MOTION to Intervene For Limited Intervention filed by United States of America. Replies due by 10/6/2011. (Villafana, Ann Marie) (Entered: 09/25/2011) 09/26/2011 22 ORDER granting in partg and DE 52 Motion for finding of violations of the Crime Victims' Rights Act; denying_42 Motion to have facts accepted; deferring ruling ona Motion for order directing the U.S. Attorney's Office not to withhold relevant evidence; denyin ene ; denying/2 Motion for Sanctions. Signed by Judge on 9/26/2011. (ir) (Entered: 09/26/2011) 09/27/2011 jail RESPONSE/REPLY tom Supplement Briefing in Support of Motion to Intervene of Black, Weinberg, and Lelkowitz by United States of America. (Villafana, Ann Marie) (Entered: 09/27/2011) 09/28/2011 jaL MOTION for Extension of Time to File Response/Reply as toa¢ Response/Reply (Other)a Supplement Jane Doe #1 and Jane Doe #2 Unopposed Motion for Extension of time to Respond to Supplemental Briefing in Support of Motion to Intervene by Roy Black,e tat by Jane Doe. (Attachments: kl. Text of Proposed Order)(Edwards, Bradley) (Entered: 09/28/2011) 09/28/2011 102 ENDORSED ORDER grantin8/2i Motion for Extension of Time to File Response/Reply to supplemental briefing in support o£54, MOTION to Intervene of ii ?o, [11 ,Black,Mar i fisiaLi ejkowitz. Responsesdueby1011 011 0/2 . Signed by Judge on 9/28/2011. (ir) (Entered: 09282011) 09/29/2011 .121 Unopposed MOTION for Extension of Time Until October 14, 2011 To File His Omnibus Reply In Support Of His Motion For Limited Intervention re/1 MOTION to Intervene For Limited Intervention ,-/$ Response to Motion,-/¢ Response in Opposition to Motion, by Roy Black. Responses due by 10/17/2011 (Black, Roy) (Entered: 09/29/2011) 09/30/2011 104 ENDORSED ORDER grantinB/Q2 Motion for Extension of Time To File Omnibus Reply In Support of/1 MO For Limited Intervention. Reply due 10/14/11. Signed by Judge on 9/30/2011. (ir) (Entered: 09/30/2011) 09/30/2011 Set/Reset Deadlines as toil MOTION to Intervene For Limited Intervention. Replies due by 10/14/2011. (ir) (Entered: 09/30/2011) 10/10/2011 .1Q1 MOTION for Leave to File Excess Pages Jane Doe #1 and Jane Doe #2 Unopposed Moton for Five Extra Pages to Respond to Supplemental Briefing in Support of Motion to Intervene by roy Black, et al. by Jane Doe. (Attachments: CI. Text of Proposed OrderXEdwards, Bradley) (Entered: 10/10/2011) 10110)2011 101 RESPONSE in Opposition rea MOTION to Intervene of Roy Black, Martin Weinberg, and Jay LeJkowitz Response to Supplemental Briefing in Support of Motion to Intervene of Roy Black Martin Weinberg, and Jay LeJkowitz (DE 94) filed by Jane Doe. (Attachments: #1 Exhibit Jan. 18, 2011 Hrg. Transcript)(Edwards, Bradley) (Entered: 10/10/2011) EFTA00177840 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 11 of 16 10/11/2011 107 ENDO ng_thl Motion for Leave to File Excess Pages. Signed by Judge on 10/11/2011. (ir) (Entered: 10/11/2011) 10/14/2011 BS REPLY to Response to Motion reja MOTION to Intervene For Limited Intervention filed by Jeffrey Epstein. (Perczek, Jacqueline) (Entered: 10/14/2011) 10/14/2011 .1.Q2 MOTION for Leave to File Excess Pages in Omnibus Reply In Support of Motion For Limited Intervention by Jeffrey Epstein. (Perczek, Jacqueline) (Entered: 10/14/2011) 10/14/2011 1.1.0 MOTION for Extension of Time to File Response/Reply as to_lau Response in Opposition to Motional Supplement by Roy Black. (Perczek, Jacqueline) (Entered: 10/14/2011) 10/16/2011 III NOTICE by Roy Black rejjQ MOTION for Extension of Time to File Response/Reply as to1Q¢ Response in Opposition to Motional Supplement Notice of No Objection By Government (Perczek, Jacqueline) (Entered: 10/16/21011) 10/16/2011 112 NOTICE by Jeffrey Epstein re_111,2 MOTION for Leave to File Excess Pages in Omnibus Reply In Support of Motion For Limited Intervention Notice of No Objection From Government (Perczek, Jacqueline) (Entered: 10/16/2011) 10/17/2011 113 ENDORSED ORDER grantin61jQ Motion for Extension of Time to File Response/Reply re_a MOTION to Intervene of Roy Black, ' • and Jay Lejkowitz. Replies due by 10/31/2011. Signed by Judge on 10/17/2011. (ir) (Entered: 10/17/2011) 10/17/2011 114 ENDOR "ng..192 Motion for Leave to File Excess Pages. Signed by Judge on 10/17/2011. (ir) (Entered: 10/17/2011) 10/31/2011 Ill REPLY to Response to Motion re16 MOTION to Intervene of Roy Black, Martin Weinberg, and Jay Lejkowitz filed by Roy Black, Jay Lefkowitz, Martin G. Weinberg. (Perczek, Jacqueline) (Entered: 10/31/2011) 10/31/2011 .LL¢ Unopposed MOTION for Leave to File Excess Pages by Roy Black, Jay Leflcowitz, Martin G. Weinberg. (Perczek, Jacqueline) (Entered: 10/31/2011) 11/01/2011 117 ENDO in8116 Motion for Leave to File Excess Pages. Signed Judge by on 11/1/2011. (ir) (Entered: 11/01/2011) 11/08/2011 SYSTEM ENTRY — Docket Entry 118 [motion] restricted/sealed until further notice. (dj) (Entered: 11/08/2011) I1/08/2011 SYSTEM ENTRY — Docket Entry 119 [motion] restricted/sealed until further notice. (dj) (Entered: 11/08/2011) 11/08/2011 SYSTEM ENTRY — Docket Entry 120 [motion] restricted/sealed until further notice. (dj) (Entered: 11/08/2011) 11/08/2011 SYSTEM ENTRY — Docket Entry 121 [motion] restricted/sealed until further notice. (dj) (Entered: 11/08/2011) 11/09/2011 SYSTEM ENTRY — Docket Entry 122 [order] restricted/sealed until further notice. (dj) (Entered: 11/09/2011) 11/09/2011 SYSTEM ENTRY — Docket Entry 123 [order] restricted/sealed until further notice. (dj) (Entered: 11/09/2011) 11/16/2011 124 MOTION for Extension of Time to File Response/Reply Jane Doe #1 and Jane Doe #2 Unopposed Motion for 10-day Extension of time to Respond to Government's Motion to Dismiss and Motion for Stay of Discovery by Jane Doe. (Attachments: #1. Text of Proposed Order)(Edwards, Bradley) (Entered: 11/16/2011) 11/16/2011 125 ENDORSED ORDER granting 12/ Motion for Extension of Time to File Response/Reply re 119 SEALED MOTION to dismiss for l er jurisdiction. (ir) Respo ntered: 11/16/2011) nses due by 12/5/2011. Signed by Judge on 11/16/2011. (E EFTA00177841 Case: 9:08-cv-80736-KAM AS of: 06/26/2013 07:08 PM EDT 12 of 16 12/05/2011 .12.6 MOTION for Leave to File Excess Pages Jane Doe #1 and Jane Doe #2 Motion for Four Extra Pages to Respond to Government's Motion to Dismiss by Jane Doe. (Attachme /201 nts: #1 Text of Proposed Order)(Edwards, Bradley) (Entered: 12/05 1) 12/05/2011 RESPONSE/REPLY Jane Doe #1 and Jane Doe #2 Response to Goverment's Sealed Motion to Dismiss for Lack of Subject Matter Jurisdiction by Jane Doe. (Edwards, Bradley) (Entered: 12/05/2011) 12/05/2011 ilia Jane Doe #1 and Jane Doe #2 Protective Motion for Remedies by Jane Doe. (Edwards, Bradley) Modified on 12/7/2011 (mg). (Entered: 12/05/2011) 12/05/2011 122 RESPONSE/REPLY Jane Doe #1 and Jane Doe #2 Response to Governments Sealed Motion to Stay by Jane Doe. (Edwards, Bradley) (Entered: 12/05/2011) 12/05/2011 al MOTION Protective Motion to Compel Jane Doe #1 and Jane Doe #2 Protective Motion to Compel by Jane Doe. (Attachments: #J, Text of Proposed Order)(Edwards, Bradley) Modified on 12/7/2011 (mg). (Entered: 12/05/2011) 12/06/2011 132 Clerks Notice to Filer re _12a Motion for Miscellaneous Relief. Wrong Event Selected — Document is a Motion; ERROR — The Filer selected the wrong event. A motion event must always be selected when filing a motion. The correction was made by the Clerk. It is not necessary to refire this document. (mg) (Entered: 12/07/2011) 12/07/2011 131 ENDOR n8126 Motion for Leave to File Excess Pages. Signed by Judge on 12/6/2011. (ir) (Entered: 12/07/2011) 12/07/2011 SYSTEM ENTRY — Docket Entry 133 [motion] restricted/sealed until further notice. (mg) (Entered: 12/07/2011) 12/07/2011 SYSTEM ENTRY — Docket Entry 134 [mist] restricted/sealed until further notice. (mg) (Entered: 12/07/2011) 12/12/2011 SYSTEM ENTRY — Docket Entry 135 [order] restricted/sealed until further notice. (dj) (Entered: 12/12/2011) 12/15/2011 131 Defendant's MOTION for Extension of Time to File Response/Reply as to_12$ Motion for Miscellaneous Relief,, j22 Response/Reply (Other),,a1 Motion to Compel,, 22 Response/Reply (Other) by United States of America. (Attachments: #_1. Text of Proposed Order)(Lee, Dexter) (Entered: 12/15/2011) 12/15/2011 137 ENDORSED ORDER granting 136 Motion for Extension of Time to File Response/Reply relit} Motion to Compel emedies. Responses due by 1/6/2012. Signed by Judge on 12/15/2011. (ir) (Entered: 12/15/2011) 01/06/2012 J. Second MOTION for Extension of Time to File Response/Reply to Petitioners' Responses and Motions Filed on December 5, 2011 by United States of America. (Attachments: kl, Text of Proposed Order)(Lee, Dexter) (Entered: 01/06/2012) 01/09/2012 139 ENDORSED ORDER granting_138 Motion for Extension of Time to File Response/Reply rein Motion to Compel Ilaneous Relief. Responses due by 1/24/2012. Signed by Judge on 1/9/2012. (ir) (Entered: 01/09/2012) 01/24/2012 ,14(1 RESPONSE in Opposition mill Motion to Compel and Reply to Response to Sealed Motion to Stay Discovery Pending Ruling upon Respondent's Motion to Dismiss [DE 1293 filed by United States of America. (Villafana, Ann Marie) Modified Text on 1/25/2012 (Is). (Entered: 01/24/2012) 01/24/2012 al Unopposed MOTION for Extension of Time to File Response/Reply as to_12a Motion for Miscellaneous Relief...122 Response/Reply (Other) by United States of America. (Sanchez, Eduardo) (Entered: 01/24/2012) 01/25/2012 142 ENDORSED ORDER grantinB141 Motion for Extension of Time to File Response/Reply rein Motion for Remedies and Moti • • Responses/Replies due by 1/26/2012. Signed by Judge on 1/25/2012. (ir) (Entered: 01/25/2012) EFTA00177842 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 13 of 16 01/26/2012 141 Defendant's MOTION for Leave to File Excess Pages by United States of America. (Lee, Dexter) (Entered: 01/26/2012) 01/26/2012 .1.44 RESPONSE in Opposition re_12$ Motion for Miscellaneous Relief filed by United States of America. (Sanchez, Eduardo) (Entered: 01/26/2012) 01/27/2012 145 ENDOR ingitl Motion for Leave to File Excess Pages. Signed by Judge on 1/27/2012. (ir) (Entered: 01/27/2012) p I/27/2012 SYSTEM ENTRY — Docket Entry 146 [moti=ricgraled until further notice. (dj) (Entered: 01/27/2012) W .( V1 \01/27/2012 SYSTEM ENTRY — Docket entry 147 [mist restricts svlitglAtitiRe.. 1.4 (dj) (Entered: 01/27/2012) At 6n •fr. 02/03/2012 1411 ORDER denying without prejudice21Motion for Order Dir • ey's Office not to Withhold Relevant Evidence. Signed by Judge on 2/3/2012. (ir) (Entered: 02/03/2012) 02/06/2012 INA SYSTEM ENTRY — Docket Entry 49 [order] restricted/sealcursikfunher notice. (dj) (Entered: 02/06/2012) 0 emir-4 Carpi il coniAn 02/07/2012 LIQ MOTION Government to File Redacted Pleadings in Public Court File Jane Doe?! and Jane Doe #2's Motion Requesting an Order Directing the Government to File Redacted Pleadings in the Public Court File by Jane Doe. (Attachments: C. Text of Proposed Order)(Edwards, Bradley) (Entered: 02/07/2012) 02/07/2012 SYSTEM ENTRY — Docket Entry 151 notice. (mg) (Entered: 02/07/2012) Mn[h motion] restricted/sealed until further cal E 6 .2. 02/07/2012 SYSTEM ENTRY — Docket Entry 152 [motion] restricted/scaled until further .. , notice. (mg) (Entered: 02/07/2012) ..raraced • Moth kir C4- hani noth 02/13/2012 SYSTEM ENTRY — Docket Entry 153 [order] reWicted/sealed until further notice. (dj) (Entered: 02/13/2012) iitvrtAr to Sta Ii. 04- 'wive IS 2. 02/13/2012 SYSTEM ENTRY — Docket Entry 154 [order] rcs, tricted/scaled until further notice. (dj) (Entered: 02/13/2012) Orytto- 44 ‘a OS et b 14-7 tyr (5- i 02/24/2012 1St Respondent's sealed opposition to petitioners motion requesting an order directing the government to file redacted pleadings in the public court file (dj) Unsealed on 6/19/2013 per Order_la2 (mg). (Entered: 02/27/2012) 02/27/2012 SYSTEM ENTRY — Docket Entry 155 [motion] restricted/sealed until further notice. (dj) (Entered: 02/27/2012) 03/14/2012 SYSTEM ENTRY — Docket Entry 157 [order] restricted/sealed until further notice. (dj) (Entered: 03/14/2012) 03/29/2012 .U1 ORDER grrintingii Motion to Intervene. Signed by Judge on 3/29/2012. (ir) (Entered: 03/29/2012) 03/29/2012 152 ORDER grantingil Motion to Intervene. Signed by Judge on 3/29/2012. (ir) (Entered: 03/29/2012) 04/17/2012 1611 MOTION for Protective Order by Intervenors Black, Weinberg and Lefkowitz and Opposition to Motions of Jane Doe I and Jane Doe 2 For Production, Use, and Disclosure of Settlement Negotiations by Roy Black. (Perez*, Jacqueline) (Entered: 04/17/2012) 04/17/2012 al MOTION for Protective Order Supplemental Briefing Of Intervenors Black, Weinberg, And Lefkowitz In Support Of Their Motion For A Protective Order Concerning Production, Use, And Disclosure Of Plea Negotiations by Roy Black. (Perczek, Jacqueline) (Entered: 04/17/2012) 04/17/2012 1.52 MOTION for Protective Order by Limited Intervenor Jeffrey Epstein And Opposition To Motions of Jane Doe I And Jane Doe 2 For Production, Use, And Disclosure Of Plea Negotiations by Jeffrey Epstein. (Perczek, Jacqueline) (Entered: 04/17/2012) EFTA00177843 Case: 9:08-cv-80736-I<AM As of: 06/26/2013 07:08 PM EDT 14 of 16 04/17/2012 164 SUPPLEMENTAL Briefing in support of Motion for a Protective Order concerning Production, Use, and Disclosure of Plea Negotiations by Roy Black, Jay Lefkowitz, Martin G. Weinberg (IsXSee Image at DE Ufa ) (Entered: 04/18/2012) 04/18/2012 Lill Notice of Supplemental Authority relfill MOTION for Protective Order by Intervenors Black Weinberg and Lefkowitz and Opposition to Motions of Jane Doe I and Jane Doe 2 For Production, Use, and Disclosure of Settlement Negotiations, .162, MOTION for Protective Order by Limited Intervenor Jeffrey Epstein And Opposition To Motions of Jane Doe I And Jane Doe 2 For Production, Use, And Disclosure Of Plea Negotiation:J(21 MOTION for Protective Order Supplemental Bring Of Intervenors Black, Weinberg, And Lefkowitz In Support Of Their Motion For A Protective Order Concerning Production, Use, And Disclosure Of Plea Negotiations by Roy Black, Jeffrey Epstein, Jay Lefkowitz, Martin G. Weinberg (Perczek, Jacqueline) (Entered: 04/18/2012) 04/18/2012 165 Clerks Notice to Filer relfil, MOTION for Protective Order Supplemental Briefing Of Intervenors Black, Weinberg, And Lefkowitz In Support Of Their Motion For A Protective Order Concerning Production, Use, And Disclosure Of Plea Negotiations. Wrong-Event Selected; ERROR — The Filer selected the wrong event. The document was re—docketed by the Clerk, see [de#164]. it is not necessary to refile this document. (Is) (Entered: 04/18/2012) 04119/2012 ififi Unopposed MOTION for Leave to File Excess Pages to Respond to Supplemental Briefing in Support of Motion to Intervene by Roy Black by Jane Doe. (Attachments: #J. Text of Proposed Order)(Edwards, Bradley) Modified Text on 4/20/2012 (Is). (Entered: 04/19/2012) 04/19/2012 . IC ' RESPONSE in Opposition react MOTION for Protective Order by Intervenors Black Weinberg and Lefkowitz and Opposition to Motions of Jane Doe 1 and Jane Doe 2 For Production, Use, and Disclosure of Settlement Negotiationsdra MOTION for Protective Order by Limited Intervenor Jeffrey Epstein And Opposition To Motions ofJane Doe I And Jane Doe 2 For Production, Use, And Disclosure Of Plea Negotiations,10, MOTION for Protective Order Supplemental Briefing Of Intervenors Black Weinberg, And Lefkowitz In Support Of Their Motion For A Protective Order Concerning Production, Use, And Disclosure Of Plea Negotiations Jane Doe #1 and Jane Doe #2 Response to Supplemental Briefing in Support of Motion to Intervene of Roy Black filed by Jane Doe. (Edwards, Bradley) (Entered: 04/19/2012) 04/19/2012 168 ENDOR ingafin Motion for Leave to File Excess Pages. Signed by Judge on 4/19/2012. (dby) (Entered: 04/19/2012) 04/23/2012 la REPLY to Response to Motion relit MOTION for Protective Order by intervenors Black, Weinberg and Lefkowitz and Opposition to Motions ofJane Doe I and Jane Doe 2 For Production, Use, and Disclosure of Settlement Negotiations, ,1122 MOTION for Protective Order by Limited Intervenor Jeffrey Epstein And Opposition To Motions ofJane Doe 1 And Jane Doe 2 For Production, Use, And Disclosure Of Plea Negotiations,-161. MOTION for Protective Order Supplemental Briefing Of Intervenors Black Weinberg, And Lefkowitz In Support Of Their Motion For A Protective Order Concerning Production, Use, And Disclosure Of Plea Negotiations filed by Roy Black, Jeffrey Epstein, Jay Lefkowitz, Martin G. Weinberg. (Perezek, Jacqueline) (Entered: 04/23/2012) 04/23/2012 170 REPLY to 164 Supplemental Briefing by Roy Black, Jeffrey Epstein, Jay Lefkowitz, Martin G. Weinberg. (1s)(See Image at DE #162) (Entered: 04/24/2012) 04/24/2012 171 Clerks Notice to Filer rd.& Reply to Response to Motion,,,. Wrong Event Selected; ERROR — The Filer selected the wrong event. The document was re—docketed by the Clerk, see [de#170]. It is not necessary to refile this document. (Is) (Entered: 04/24/2012) 05/21/2012 in RESPONSE to Motion fejt& MOTION for Protective Order by Intervenors Black, Weinberg and Lefkowitz and Opposition to Motions of Jane Doe I and Jane Doe 2 For Production, Use, and Disclosure of Settlement Negotiations Supplemental Authority in Support of Jane Doe #1 and Jane Doe #2s Response to Supplemental EFTA00177844 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 15 of 16 Briefing in Support of Motion to Intervene of Roy Black, Martin Weinberg and Jay Lelkowitz filed by Jane Doe. Replies due by 6/1/2012. (Attachments: /4_1. Exhibit Exhibit A)(Edwards, Bradley) (Entered: 05/21/2012) 05/21/2012 173 Notice of Supplemental Authority re_162 Response in Opposition to Motion,,, by Jane Doe (ls)(See Image at DE #122 ) (Entered: 05/22/2012) 05/22/2012 174 Clerks Notice to Filer rein, Response to Motion,,. Wrong Event Selected; ERROR - The Filer selected the wrong event. The document was re-docketed by the Clerk, see [de#173]. It is not necessary to refile this document. (Is) (Entered: 05/22/2012) 05/23/2012 12,2 Unopposed MOTION for Extension of Time To Respond re 173 Notice of Supplemental Authority by Roy Black, Jeffrey Epstein, Jay Lefkowitz, Martin G. Weinberg. Responses due by 6/11/2012 (Attachments: ₹1_1. Text of Proposed Order)(Perczek, Jacqueline) (Entered: 05/23/2012) 05/23/2012 176 ENDORSED ORDER grantingjal Motion for Extension of Time To Respond re 173 Notice of Supplemental Authority by Roy Black, Jeffrey Epstein, Jay ' • G. Weinberg. Deadline extended to 6/8/12. Signed by Judge on 5/23/2012. (ir) (Entered: 05/23/2012) 06/06/2012 12/ MOTION to Strike 173 Notice of Supplemental Authority by Roy Black. Responses due by 6/25/2012 (Attachments: #_1. Exhibit AXPerczek, Jacqueline) (Entered: 06/06/2012) 06/12/2012 128 RESPONSE to Motion re_122 MOTION to Strike 173 Notice of Supplemental Authority filed by Jane Doc. Replies due by 6/22/2012. (Edwards, Bradley) Modified on 6/13/2012 (Is). (Entered: 06/12/2012) 12/06/2012 122 MOTION to Expedite Ruling Denying Government's Motion to Stay Prompt Ruling by Jane Doe. (Attachments: N.J. Text of Proposed Order)(Edwards, Bradley) Modified Relief on 12/7/2012 (Is). (Entered: 12/06/2012) 12/07/2012 180 Clerks Notice to Filer re_12,2 MOTION Prompt Ruling Denying Government's Motion to Stay . Wrong Motion Rellef(s) Selected; ERROR — The Filer selected the wrong motion relief(s) when docketing the motion. The correction was made by the Clerk. It is not necessary to refile this document but future motions filed must include applicable reliefs. (Is) (Entered: 12/07/2012) 12/10/2012 181 Notice of Supplemental Authority in support ofJane Doe #1 and Jan Doe #2's Response to Government's Sealed Motion to Dismiss for Lack of Subject Matter Jurisdiction by Jane Doe (Edwards, Bradley) Modified on 12/11/2012 (Is). (Entered: 12/10/2012) 12/21/2012 182 RESPONSE in Opposition re122 Motion to Expedite Ruling Denying Government's Motion to Stay Prompt Ruling filed by United States of America. (Lee, Dexter) (Entered: 12/21/2012) 03/14/2013 182 MOTION to Compel Production of Court-Ordered Discovery and for a Prompt Ruling on the Motion by Jane Doe. Responses due by 4/1/2013 (Attachments: til Text of Proposed Order)(Edwards, Bradley) (Entered: 03/14/2013) 03/29/2013 184 ORDER • i ' n to Expedite; granting.121 Motion to Compel. Signed by Judge on 3/28/2013. (ir) (Entered: 03/29/2013) 06/12/2013 112 Notice of Supplemental Authority in Support of Motion for Court to Deny the Government's Motion to Dismiss Based on Existing Pleadings or, at the Minimum, Allow Leave to File A Sur—Reply by Jane Doe (Edwards, Bradley) Modified Link on 6/13/2013 (Is). (Entered: 06/12/2013) 06/13/2013 186 Clerks Notice to Filer rellla Notice of Supplemental Authority,. Incorrect Document Link; ERROR — The filed document was not correctly linked to the related docket entry. The correction was made by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (Is) (Entered: 06/13/2013) EFTA00177845 Case: 9:08-cv-80736-KAM As of: 06/26/2013 07:08 PM EDT 16 of 16 06/18/2013 182 ORDER granting_LIQ Motion to require Government to File Redacted Pleadings in Open li Court and filiiimment's sponse in Opposition the Motion. Signed by Jud te i on 6/18/2013. (ir) (Entered: 06/18/2013) 06/18/2013 06/18/2013 Ha 182 ORDER grantingjj Motion to unseal unredacted pleadings ; denying 160 Motion ' er; denyingica, Motion for Protective Order. Signed by Judge on 6/18/2013. (ir) (Entered: 06/18/2013) ORDER denying 119 governments motion to dismiss for lack of subject matter jurisdiction. The stay of discovery pending ruling on the govc ' • dismiss entered 11/8/2013 DE# 123 is lifted. Signed by Judge on 6/18/2013. (jmd) (Entered: 06/19/2013) 06/18/2013 110 OMNIBUS ORDER denying without prejudicela Motion ; grant Motion to Compel (see order for further details); denying as m 'on; denying as moot_122 Motion to Strike. Signed by Judge on 6/18/2013. (jmd) Modified on 6/19/2013 to reflect not un er sea . . ntered: 06/19/2013) 06/19/2013 191 Clerks Notice of Docket Correction re_al Omnibus Order. Correction Other. To reflect order not filed under seal, and NEF notification. (jmd) (Entered: 06/19/2013) 06/19/2013 192 Clerk's NOTICE of Compliance rejja Order on Motion (mg) (Entered: 06/19/2013) 06/26/2013 121 MOTION to Stay re_122 Order on Motion for Miscellaneous Relief, Order on Motion to Compel, Order on Sealed Motion, Order on Motion to Strike,,,,, al Order on Sealed Motiondal Order on Motion for Miscellaneous Relief, Order on Motion for Protective Order, Pending Appeal by Roy Black. Responses due by 7/15/2013 (Black, Roy) (Entered: 06/26/2013) EFTA00177846