EFTA00208590.pdf

Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 1 of 18 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 v. UNITED STATES JANE DOE #1 AND JANE DOE #2'S RENEWED MOTION FOR AN ORDER DIRECTING THE U.S. ATTORNEY'S OFFICE NOT TO WITHHOLD RELEVANT EVIDENCE COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to renew their Motion for an Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence (DE 50). The Court has previously reserved ruling on this motion. DE 99 at 11. In light of the Governments' recent decision to assert that thousands of pages of documents are privileged — and to produce a privilege log in a manner and format that makes it impossible to understand what kinds of documents have been produced, or even whether the Government has responded to each request at all — the Court should now grant the motion. By granting the motion, the Court would simplify and expedite these proceedings and largely or entirely avoid the need for a document-by-document review of the Government's privilege assertions and the victims' responses to them. BACKGROUND As the Court is aware from the victims' previous filing of this motion (see DE 50 at 1-3), in discussions with the U.S. Attorney's Office about this case, counsel for Jane Doe #1 and Jane 1 EFTA00208590 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 2 of 18 Doe #2 inquired about whether the Office would voluntarily provide to the victims information in its possession that was material and favorable to the victims' case. Victims' counsel pointed out that, if they were criminal defense attorneys representing criminals, the Office would promptly turn over all information in its possession that was helpful to these criminals under Brady v. Maryland, 373 U.S. 83 (1963), and related decisions. Victims' counsel asked the Office to extend to the victims the same assistance that it would provide to criminal defendants — i.e., to voluntarily provide to the victims information in its possession that was favorable to the victims' CVRA case. In response, victims' counsel were informed by the Office that it could — and would — withhold from the victims such information, apparently on the theory that the CVRA does not apply to this case or on the theory that victims lack due process rights under the CVRA. Accordingly, on March 21, 2011, the victims filed a motion asking the Court to enter an order directing the Government to produce information in its possession favorable to them. DE 50. The Government filed a response in opposition. DE 59. The victims filed a reply. DE 76. After a hearing on this and related motions, on September 26, 2011, the Court agreed to allow factual development through discovery by the victims. DE 99 at 11. The Court allowed the victims to file requests for admission and for production of documents (and potentially other discovery requests as well). Id. The Court then noted: "Because the Court will allow this limited factual development, it is unnecessary to decide here whether the CVRA or the Federal Rules of Civil Procedure provide discovery rights in this context. The Court therefore reserves ruling on [the victims'] motion [for an order directing the Government not to withhold relevant evidence]." Id. 2 EFTA00208591 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 3 of 18 On October 3, 2011, the victims filed requests for production with the Government. On November 7, 2011, rather than produce even a single page of discovery, the Government filed a motion to dismiss the victims' petition. DE 119. On that same day, the Government filed a motion to stay discovery. DE 121. The victims filed a response, arguing that the Government's motion was a stall tactic. DE 129. The victims also filed a motion to compel production of all of their discovery requests. DE 130. The Government filed a reply, arguing that it was not stalling. Indeed, the Government told the Court that "the United States has agreed to provide some information to [the victims] even during the pendency of the stay [of discovery] and is undertaking a search for that information." DE 140 at 4. Contrary to that representation, however, over the next seventeen months, the Government did not produce any information to the victims. Ultimately, after some additional motions and rulings, on June 19, 2013, the Court denied the Government's motion to dismiss and lifted any stay of discovery. DE 189. That same day, the Court entered an order granting the victims' motion to compel and directing the Government to produce (1) all correspondence between it and Epstein; (2) all communications between the Government and outside entities; and (3) every other document requested by the victims. DE 190 at 2. With respect to the third item, the Court allowed the Government to assert privilege by producing the items in question for in camera inspection and filing a contemporaneous privilege log. Id. The Court required that the privilege log must "clearly identify[] each document[] by author(s), addressee(s), recipient(s), date, and general subject matter . . . ." DE 190 at 2 (emphasis added). 3 EFTA00208592 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 4 of 18 On July 19 and July 27, 2013, the Government made its production in this case. With regard to item (1) — correspondence with Epstein, the Government withheld the correspondence pending a ruling from the Eleventh Circuit on Epstein's motion to stay production of these materials. With regard to the other items, the Government produced 14,825 pages of documents to the Court for in camera inspection, but turned over only 1,357 pages to the victims. Thus, the Government asserted privilege to more than 90% of the documents in question. The documents that the Government produced were almost worthless to the victims, as they included such things that the victims' own letters to the Government (Bates 0001-04), court pleadings filed by the victims themselves or other victims, by Epstein, or by news media organizations (e.g., Bates 00142-88, 00229-31, 281-311, 00668-69), public court rulings on Epstein related matters (e.g., Bates 0008-10, 0012-14. 0036-86, 00190-228), public newspaper articles (e.g., Bates 0011, 0030, 0032-33), and similar materials already available to the victims. It also included roughly four hundred pages of notices sent to the various other victims in this case — notices that were substantively indistinguishable from the notices the victims themselves had already received. Almost without exception, the documents the Government produced do not go to the disputed issues in this case. On the other hand, the Government asserted privilege on 13,468 pages of materials. While many of these pages also do not appear to go to the disputed issues in this case, buried among the documents appear to be some highly pertinent materials. The Government has asserted privilege, for example, with regard to its internal discussions about notifications to crime victims. The Government has also asserted privilege with regard to an investigation by the Office of Professional Responsibility (OPR) regarding the handling of the Epstein case and the 4 EFTA00208593 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 5 of 18 treatment of the victims. It is, however, difficult to say for certain which documents are important, because rather than comply with the Court's privilege log requirement. the Government provided only a truncated log that did not fully describe the documents at issue, much less "clearly" identify the subject matter of the documents and the parties who received them.' The Government has also failed to identify which documents it is producing go to which document production requests. DISCUSSION The victims have previously explained at length why the Court should enter an order directing the Government not to withhold relevant documents. DE 50; see also DE 59 (Gov't Response); DE 76 (victim's reply). The Court reserved ruling on that motion for an uncertain amount of time. The victims will not repeat their previously-advanced arguments here, but simply incorporate them by reference and respectfully suggest that now would be a propitious point in this case for the Court to take up the motion again — and to grant the motion. Doing so would save the Court and the victims considerable amount of time by narrowing (or even eliminating entirely) the number of privilege issues that would need to be resolved. In addition, the victims wish to advance three new arguments in support of their motion for such an order based on new developments in this case since they filed their motion. First and most important, the Government's response to the Court's discovery order is so fundamentally inadequate that the Court should simply not allow further litigation but provide the documents to the victims by granting their motion. Second, the Court should also grant the victims' motion Further factual information that may be relevant to this motion is found in the contemporaneously-filed Affidavit of Bradley J. Edwards, attached to Jane Doe #1 and Jane Doe #2's Motion to Compel Production of Documents That Are Not Privileged. 5 EFTA00208594 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 6 of 18 because the Government's fiduciary obligations to the victims to use its "best efforts" to protect their rights conflict with its privilege assertions. Specifically, assertion of any privilege is inconsistent with the fiduciary duties that flow from that statutory "best efforts" requirement. Third, the Government's recent admissions and privilege log make clear that significant "Brady" material exists. Accordingly, the Court should no longer reserve ruling on the victims' motion but instead should simply order these highly relevant materials to be produced now, just as it would order the Government to produce highly relevant materials to criminal defendants. I. THE COURT SHOULD SIMPLY PRODUCE THE DOCUMENTS TO THE VICTIMS BECAUSE OF THE GROSS INADEQUACIES OF THE GOVERNMENT'S PRIVILEGE ASSERTIONS. The Government has grossly violated the Court's order to provide an appropriate privilege log in connection with the disputed documents. In light of that stark failure, the Court should simply grant the victims' pending motion regarding suppression of evidence and produce the disputed documents to them. As the Court is well aware, it has denied repeated efforts by the Government to block the victims from receiving relevant information about this case. In its most recent order (DE 190), the Court directed the Government to either produce "all other responsive documents in response to all outstanding requests for production of document" to the victims or "file and serve, in the public portion of the court file, a privilege log clearly identifying each document[] [withheld] by author(s), addressee(s), recipient(s), date, and general subject matter . . . ." DE 190 at 2 (emphasis added). Government then made its production. But rather than provide helpful information to the victims, the Government instead has provided information that was essentially irrelevant to the disputed issues. See Affidavit of Bradley J. Edwards at 5. 6 EFTA00208595 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 7 of 18 More important with regard to this motion, the Government has not begun to comply in a meaningful way with a discovery process that would permit the victims to obtain information relevant to their claims. Of course, the purpose of a privilege log "is to provide a party whose discovery is constrained by a claim of privilege . . . with information to sufficient to evaluate such a claim and to resist if it seems unjustified." Tulle v. Henry, 98 F.3d 1411, 1416 (D.C. Cir. 1996). Reinforcing that command, this Court required the Government's privilege log to "clearly" indicate what materials were covered. The Government has not begun to provide the victims with sufficient information to resist claims of privilege. One of the most basic problems with the Government's action is that it is not identified which of the "privileged" documents apply to which of the victims' document production requests. Instead, the Government has simply taken more than 13,000 pages of documents, Bates stamped them in no particular order (or at least no order that the victims can discern), and then asserted that they are all privileged for various reasons. The resulting "log" is wholly inadequate for multiple reasons, the most basic of which is that it does not signal to the victims which produced documents respond to which requests. To gather the documents to respond to the Requests for Production (RFPs),2 presumably the Government had to perform query searches in electronic databases or actual searches in paper files? Each search would have then produced certain documents. But rather than disclose documents on a search-by-search basis, the Government has simply taken the all documents it gathered, apparently dropped them on the 2 The victims' First and Second Requests for Production are included as attachments to the Affidavit of Bradley J. Edwards, which is (in turn) an attachment to the victims' contemcoraneously-filed Motion to Compel Production of Documents That Are Not Privileged. See, e.g., Jane Doe #1 and Jane Doe #2's First RFP, ¶ 16(d) (requesting emails and other documents in which certain particular words appear). 7 EFTA00208596 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 8 of 18 floor into a random pile, and then provided a "log" of documents in no order whatsoever — and without indicating which documents are being produced in answer to each question. The resulting mishmash of thousands of documents places the victims in the impossible position of trying to determine what the documents mean without any context whatsoever. Compounding this problem and creating a critical additional problem, this lump and dump technique makes it impossible to verify that the Government has actually performed each of the searches required to make each of the responses. Indeed, it would be entirely possible that the Government could have failed to search for, or to produce, any documents whatsoever on certain requests and the victims would have no way to know one way or the other. Perhaps in theory these problems might be mitigated if the Government had produced (as the Court required) a privilege log "clearly" describing the subject matters and other particulars of the documents produced. But as the Court can confirm with just a casual glance at the privilege log, many of the documents have been described generically or not at all, leaving the victims to wonder what many of the documents really are. The upshot of the "lump and dump" approach is that the victims cannot even begin to understand what has been produced with regard to their particular discovery requests. As an illustration, consider the victims' request for production of documents about former prosecutor cnowledge of information about the Epstein prosecution immediate before he left to become employed by Epstein. See Jane Doe #1 and Jane Doe #2's First Request for Production, 1 15 (seeking this information); 1 21 (requesting information collected by OPR on this subject). The victims know that the Government has information responsive to this request, because in answering the victims' First Request for Admissions, the Government admitted that it 8 EFTA00208597 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 9 of 18 possessed information reflecting contacts between and persons working at the Justice Department that related to the Epstein investigation. See Government's Answers to Jane Doe #1 and Jane Doe #2's First Request for Admissions (RFA's), fi 15-17.4 It further admitted that OPR collected information about possibly improper behavior. See Gov't's Answers to RFA's, 1 22(a). Yet there is no way to tell which documents (among the more than 13,000 pages of documents) are responsive to RFP 15 because the Government has not indicated which of its documents apply to which RFP. Nor has the Government given the victims sufficient information to make this determination on their own. Indeed, the Government's privilege log does not even contain the word 'M' anywhere in it. So it is simply impossible to tell which documents apply to the issue. As another illustration, consider the victims' request for information about former prosecutor personal business relationship with Jeffrey Epstein. See, e.g., Victims' First RFP's at 1 16(f). Here again, the victims know that the Government possesses such information, because it admitted to having such information in answer to the victims' request for admissions — information collected by its own internal affairs unit, OPR. See Gov't's Answers to RFA's, 1 20. Yet once again, it is impossible for the victims to even tell which documents (if any) the Government has turned over to the Court that pertain to this issue, because the Government has not explained which documents apply to this request and none of 4 The victims' Request for Admissions and the Government's answers thereto are included as an attachment to the Affidavit of Bradley J. Edwards, which is (in turn) an attachment to the victims' contemporaneously-filed Motion to Compel Production of Documents That Are Not Privileged. 9 EFTA00208598 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 10 of 18 the privilege log entries provide any description that indicates they cover documents regarding such a personal or business relationship.5 As yet another illustration, consider the victims' request for information about the OPR investigation into the possible mishandling of the Epstein prosecution and victim notifications. Here again, the victims have very specifically requested such information. See Victims' First RFP's at 1 17. The Government has admitted that OPR collected information about possible improper behavior by prosecutors in the Epstein matter. Gov't's Answers to RFA's, I 22. Yet it is simply impossible to tell where the information that the Government collected appears among thousands of pages of documents it has produced.' As a fourth and final illustration, the victims requested information about why the U.S. Attorney's Office for the Southern District of Florida (USAO-SDFL) was "conflicted out" of considering issues relating to the Epstein matter, as well as any information that developed about that conflict after the Epstein matter was referred to another district (e.g., the Middle District of Florida). See Victims' First RFP's at ¶ 18; Victims' Second FRP's at ¶ 1. The victims know that the USAO-SDFL was in fact conflicted out of some decisions, so presumably the USAO- MDFL evaluated something as a result. Yet apart from a few preliminary emails within the is, of course, revealed in the privilege log at several points as on the e-mails chains involved in the plea bargain discussions surrounding the Epstein prosecution. But none of the vague descriptions in the privilege log appear even remotely related to a personal or business relationship. Moreover, given that many of the privilege log entries do not even include dates, it is not even possible to look for materials that might follow the date on which left the U.S. Attorney's Office. 6 The Court will notice that some pages in the Government's privilege log do deal with the OPR investigation. See Gov't Supp. Privilege Log at 12-14. But so far as the victims can discern, the documents covered there are simply e-mails about the OPR investigation, rather than the underlying substantive information collected during the OPR (or OPR-triggered) investigation. I0 EFTA00208599 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 11 of 18 Justice Department regarding whether the recusal should occur, see Gov't First Privilege Log at pp. 22-23, nothing in the privilege log indicates that the Government has produced even a single document in response to the request for information about what happened as a result of the recusal. Indeed, so far as the victims can tell, the Government may even be staking out the remarkable position that there is not even one single document in the Middle District of Florida that is responsive to the victims' requests, because (so far as the victims can tell) nothing has been provided from the Middle District of Florida. These are but four clear and illustrative examples, which the victims could multiply dozens of times. The victims respectfully ask the Court to require the Government, in its response to this motion, to indicate where (if anywhere) in the privilege log documents pertaining to these four issues appear, so that the Court can then judge for itself whether the victims have been given sufficient information to respond to the Government's claims of privilege. Again, our point in this pleading is not to try and debate the Government on its privilege assertions. The more basic point in this pleading is that the victims cannot even begin to fairly challenge many of the Government's assertions because they do not know which (if any) of the documents at issue pertain to their discovery requests. The Government's privilege assertions are simply broken beyond repair. In view of this gross failure by the Government, the Court should simply provide the documents it has received to the victims by granting the victims' Motion for an Order to the Government not to Withhold Relevant Evidence. At an absolute minimum, to solve the problem that the Government has not indicated which documents apply to 11 EFTA00208600 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 12 of 18 which requests, the Government should be required to provide a listing of documents on a request-by-request basis. II. THE COURT SHOULD ORDER THE GOVERNMENT TO PRODUCE THE REQUESTED DOCUMENTS BECAUSE THE CVRA'S BEST EFFORTS REQUIREMENT CREATES A FIDUCIARY EXCEPTION TO ALL PRIVILEGES. In their 2011 motion, the victims explained that the CVRA obligates government prosecutors to "make their best efforts to see that crime victims are . . . accorded[] their rights" under the CVRA. DE 50 at 3-5 (citing 18 U.S.C. § 3771(c)(1)); see also DE 76 at 2-6. In light of the Government's recent assertion of privilege, the Government's failure is now even more apparent. The Government's invocation of a privilege to block disclosure of documents is simply inconsistent with the Government's statutorily-mandated best efforts obligation. Controlling circuit precedent supports the conclusion that the Government fiduciary duty bars an assertion of privilege, even in the context of the well-established and absolute attorney- client privilege. In Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), the Court of Appeals with jurisdiction over this Court7 held that an attorney-client privilege can give way when "the client asserting the privilege is an entity which in the performance of its functions acts wholly or partly in the interests of others, and those others . . . seek access to the subject matter of the communications." Id. at 1101 (emphasis added). In Garner, the Court refused to allow the management of a corporation to invoke attorney-client privilege in the context of a shareholder derivative action, noting that beneficiaries of its actions with the stockholders. Id. Since that 7 See Knight v. Thompson, ---F.3d---, 2013 WL 3843803 at *5 n.5 (11th Cir. 2013) (citing Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (11th Circuit adopts as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981)). 12 EFTA00208601 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 13 of 18 ruling, many courts (including this Court) have applied the "Garner doctrine" or "fiduciary exception doctrine" in settings outside the shareholder derivative context. See, e.g., Solis v. Food Employers Labor Relations Ass 'n, 644 F.3d 221, 227-28 (4th Cir. 2011) (applying Garner principles to bar assertions of privilege to communications by ERISA fiduciary and plan attorneys in suit concerning alleged mismanagement of plan assets); Maltby v. Absolut Spirits Co., Inc., 2009 WL 800142 at *4 (S.D. Ha. 2009) ("Defendant maintains that this Court should not apply the fiduciary exception here because the Eleventh Circuit has never applied the fiduciary exception in the context of an ERISA case. Defendant provides no legal or factual explanation of why this Court should not apply this doctrine, however."); Nellis v. Air Line Pilots Ass'n, 144 F.R.D. 68, 71 (E.D. Va. 1992) (holding that the Garner doctrine applies because unions owe a fiduciary duty to their members). The "Garner doctrine" or "fiduciary exception" has also been applied to bar the federal government from asserting privilege against those whose interests it must protect, such as Indian tribes. See, e.g., Osage Nation and/or Tribe of Indians of Oklahoma v. United States, 66 Fed. Cl. 244 (2005); Cobell v. Norton, 212 F.R.D. 24 (D.D.C. 2002). For instance, in Osage Nation, the Government argued against application of the fiduciary exception in the context of a case alleging mismanagement of Indian trust funds, contending that the federal agencies are "often charged with protecting competing interests, including some potentially adverse to a Tribe's interest." Id. at 247. The district court rejected these arguments, finding the claim "that the government's sovereign interests somehow negate or offset its obligations as trustee to be unpersuasive." Id. at 248. The situation here is parallel to situations such as a union being challenged by its members or the Government is being challenged an Indiana tribe. In this case, of course, a U.S. 13 EFTA00208602 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 14 of 18 Attorney's Office is being challenged by recognized crime victims, who are arguing that the Office violated its statutory obligation to act in their "best interests." Accordingly, under Garner, an attorney-client privilege is not appropriate, provided the victims to show "good cause" why the privilege should not be invoked. Id. at 1104. Here, there is ample good cause. See generally Affidavit of Bradley J. Edwards, Esq. (filed concurrently with this motion as an attachment to the Victims' Motion to Compel Production of Documents that Are Not Privileged) (explaining why good cause exists for production of documents requested). As a result, the Court should not allow the Government to invoke privilege but should instead simply grant the victims' motion for an order not allowing the Government to withhold relevant evidence and turn the disputed materials over to the victims. III. THE VICTIMS HAVE A DUE PROCESS RIGHT UNDER THEIR CVRA "RIGHT TO BE TREATED WITH FAIRNESS." In their 2011 motion, the victims also argued that they were entitled to receive favorable evidence in the Government's possession for the same reason that criminal defendants receive such information: fundamental considerations of fairness require that the Government not deliberately withhold relevant information contrary to its position in court. DE 50 at pp. 5-9 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963), and arguing that they are entitled to "Brady" information contradicting the Government's position no less than criminal defendants). In light of the Government's recently-filed privilege log, the need for the Court to grant the victims' motion has become even more apparent. The Government's privilege log indicates that it is withholding significant information that is critical to the victims' arguments. For example, the Government is withholding 14 EFTA00208603 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 15 of 18 information about its discussions concerning how to notify crime victims. See, e.g., page 16 of first privilege log (DE 212-1) regarding Box #2 P-010526 to P-010641. And the Government is withholding information about its own internal investigation into the potential wrongdoing in this case. See, e.g., page 13 of supplemental privilege log (DE 216-I) regarding Suppl. Box 3 P- 013940 to P-013942. As we understand the Government's position on this issue, it does not contend that it does not have important evidence for the victims' case. Nor does the Government argue that it would be difficult to identify that material. Instead, the Government's argument has been that Brady obligations are confined to criminal cases against criminal defendants. DE 59 at 5-6. But the case law is not so narrow as the Government believes. The victims have recently identified several cases in which courts have applied Brady outside of the criminal context. In Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993), the Sixth Circuit applied Brady in the context of a denaturalization and extradition case. In United States v. Edwards, 777 F.Supp.2d 985 (E.D.N.C. 2011), the district court applied Brady to civil commitment proceedings for sexual offenders. And in EEOC v. Los Alamos Constnwtors, Inc., 382 F.Supp. 1373, 1374 (D.N.M. 1974), the district court applied Brady to an employment discrimination action. The issue of Brady obligations in a CVRA action appears to be one of first impression. Thus, more important than case law is the fact that the victims here can rely on specific statute — the CVRA — that gives them a right to be "treated with fairness." 18 U.S.C. § 3771(a)(8). Being treated with fairness means (at a minimum) treated someone with due process. As one of the CVRA's co-sponsors (Senator Kyl) explained, "The broad rights articulated in this section [§ 3771(a)(8)] are meant to be rights themselves and are not intended to just be aspirational. One of I5 EFTA00208604 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 16 of 18 these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct Government agencies and employees, whether they are in executive or judiciary branches, to treat victims of crime with the respect they deserve." 150 Cong. Rec. S4269 (Apr. 22, 2004) (emphasis added). In the context of this particular case, it is simply inconsistent with the "due process" requirements of the CVRA to allow the Government to withhold documents that will help the victims prove their case. The Court should accordingly enter an order, paralleling its "Standing Discovery Order" in criminal cases, directing the Government to provide favorable evidence to the victims. See Local Rule 88.10. The Standing Discovery Order typically provides: "The government shall reveal to the defendant(s) and permit inspection and copying of all information and material known to the government which may be favorable to the defendant on the issues of guilty or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agars, 427 U.S. 97 (1976)." The Court should adopt that language to the case at hand here. Interesting, the Standing Discovery Order — and associated local rule 88.10(O) — contains a broad, commonsense provision which the Government has plainly violated in this case. The Order provides: "The parties shall make every possible effort in good faith to stipulate to all facts or points of law the truth or existence of which is not contested and the early resolution of which will expedite the trial." For more than five years, the victims have been trying to get the Government to stipulate to undisputed facts, precisely as the Court's rules envision. The Government, however, has refused to do so. Accordingly, the Court should enter an order 16 EFTA00208605 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 17 of 18 requiring the Government to produce evidence which it well knows is relevant and material to the victims' case. And because the Court has in its possession thousands of pages of documents that fit that description, the Court should simply turn that information over to the victims. CONCLUSION The Court should enter an order directing the Government not to withhold material evidence in this case and should provide to the victims the materials it has received for in camera review. In addition, to solve the problem that the Government has not indicated which documents apply to which requests, the Government should be required to provide such a responsive document. DATED: August 16, 2013 Respectfully Submitted, /s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS FISTOS & LEHRMAN, P.L. Fort Lauderdale Florida 33301 Telephone Facsimile E-mail: and Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah Salt Lake City, UT 84112 Telephone: Facsimile: E-Mail: Attorneys for Jane Doe #1 and Jane Doe #2 17 EFTA00208606 Case 9:08-cv-80736-KAM Document 226 Entered on FLSD Docket 08/16/2013 Page 18 of 18 CERTIFICATE OF SERVICE I certify that the foregoing document was served on August 16, 2013, on the following using the Court's CM/ECF system: West Palm Beach, FL 33401 Fax: E-mail: E-mail: Attorneys for the Government Roy Black, Esq. Jackie Perczek, Esq. Black Srebnick Korns . an & Stum.f P.A. Miami, FL 33131 Email: Jay P. Lefkowitz Kirkland & Ellis, LLP New York NY 10022 Email: Martin G. Weinberg, P.C. Boston MA 02116 Email: Criminal Defense Counsel for Jeffrey Epstein /s/ Bradley J. Edwards 18 EFTA00208607