EFTA00234808.pdf

Case 9:08-cv-80893-KAM Document 54 Entered on FLSD Docket 05/12/2009 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE, Plaintiff, v. JEFFREY EPSTEIN, Defendant. CASE NO.: 08-CIV- 80893 — MARRA/JOHNSON Defendant, Jeffrey Epstein's Reply to Plaintiff's Response In Opposition To Defendant's Motion To Stay And/Or Continue Action For Time Certain With Incorporated Memorandum Of Law Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN") by and through his undersigned attorneys, hereby files his Reply to Plaintiffs Response In Opposition to Defendant's Motion to Stay Complaint (SIC)(DE 31), and states: 1. Introduction and Argument Plaintiff's Response in Opposition challenging the stay should not prevail when 5'h Amendment principles are at issue and when there exists a real, substantial and not remote possibility that Epstein may face criminal prosecution by the United States Attorneys' Office ("USAO") if the USAO unilaterally determines that Epstein somehow violated that certain Non- Prosecution Agreement dated June 30, 2008 ("NPA") and/or if Epstein is forced to waive those 5th Amendment rights and participate in civil discovery in order to defend this civil action. Epstein should not be confronted with the substantial risk of loosing this civil action by virtue of asserting his 5th Amendment privileges. Also, waiver of Epstein's 5th Amendment privileges should not be compelled to defend this civil action (and could be remedied by a reasonable stay), especially when civil discovery may lead to the USAO unilaterally declaring a violation of the NPA. In fact, Plaintiff concedes this fact on pp. 2-3 of the Opposition Motion EFTA00234808 Case 9:08-cv-80893-KAM Document 54 Entered on FLSD Docket 05/12/2009 Page 2 of 7 Page 2 (DE31) wherein she states ". . . today there is — at most — a risk of a potential criminal prosecution at some point down the road." The USAO has already unilaterally claimed that EPSTEIN violated the NPA by, among other things, "investigating the Plaintiff's (by and though his attorneys) whom brought civil suits against him for purposes of defending those civil actions" and "by contesting damages in this action and in the other civil actions." See Motion to Stay and Jack Goldberger Affidavit attached thereto as Exhibit "B" (DE24, 24-3). How can Epstein truly defend these matters and be afforded his due process rights when to do so might result in the USAO claiming a breach of the NPA? The fact is that he cannot. Notwithstanding the allegations against Epstein, this Court has an obligation to ensure his due process rights are upheld in both the civil and criminal contexts. Next, in her response, Plaintiff claims that a stay should not be entered because a parallel criminal proceeding against Epstein does not exist. Not only is Plaintiff's theory incorrect for reasons set out herein and in the Epstein's Motion to Stay, but her response ignores the significant fact that a stay may be issued in light of an ongoing investigation. It is clear from the NPA and Jack Goldberger's Affidavit ". . .that the criminal matters against Epstein remain ongoing until the NPA expires by its terms in late 2010. . ., and the threat of criminal prosecution against Epstein by the USAO continues presently and through late 2010." $ee Jack Goldberger's Affidavit, (DE24, 24-3 at ¶5). In fact, the FBI refused to provide information regarding this case and other related cases filed against Epstein ". . .stating the materials are at this time exempt from disclosure because they are in an investigative file, i.e., the matter is still an ongoing criminal investigation." See Jack Goldberger's Affidavit, (DE-24, 24-3 at ¶7) 2 EFTA00234809 Case 9:08-cv-80893-KAM Document 54 Entered on FLSD Docket 05/12/2009 Page 3 of 7 Page 3 Additionally, Plaintiff's response downplays the fact that civil discovery may result in the USAO claiming a breach of the NPA. Epstein wishes to vigorously defend this case and others filed against him; however, he does not wish to risk waiver of his 5th Amendment privileges, at least before the NPA expires or any investigation is closed. Further, Plaintiff asserts that the NPA is not attached to Epstein's Motion to Stay. Plaintiff and the Court have a copy of the NPA. While it may be sealed, this Court may review same, in camera. As such, Plaintiff's Best Evidence argument is entirely misplaced and should be disregarded. a. Justice Requires The Entry of A Stay As set out in the Motion to Stay, once the NPA expires, EPSTEIN intends to testify to all relevant and non-objectionable inquiries made to him in discovery be it a deposition, in interrogatories or in production requests. However, the current circwnstances are such that by testifying or responding to discovery, EPSTEIN will be required to waive his constitutional privileges, thereby subjecting himself to scrutiny by the USAO as a result of matters alleged in this civil action (and others before this Court and in the State of Florida 15th Judicial Circuit Court, Palm Beach County). When an ongoing criminal investigation exists, courts have granted motions to stay civil proceedings. In St. Paul Fire and Marine Insurance Company v. U.S., 24 CI.Ct 513 (1991), the court held that staying a civil action for 6-9 months was reasonable in light of a pending criminal investigation so long as the movant met certain elements (see infra) and the stay was not immoderate or unreasonable. Taking into consideration the Motion to Stay and this Reply as 3 EFTA00234810 Case 9:08-cv-80893-KAM Document 54 Entered on FLSD Docket 05/12/2009 Page 4 of 7 Page 4 well as facts alleged by Plaintiff in her operative pleading against Epstein, it is clear that Epstein has met the elements of St, Paul Fire necessary for this Court to enter a stay: 1. Epstein has made a clear showing, by direct or indirect proof, that the issues in the civil action arc "related" as well as "substantially similar" to the issues in the criminal investigation. 2. Epstein has made a clear showing of hardship or inequity if required to go forward with this civil case while the NPA and/or the ongoing investigation exist. see supra and see also Motion to Stay and attached affidavit of Jack Goldberger, Esq. discussing Epstein's 5th Amendment Rights and how those rights affect this civil litigation — see supra); and 3. Epstein, in light of the stays granted by other courts, has shown that a stay in the instant matter until late 2010 (the date the NPA expires) and the likely date any ongoing investigation will be closed is not immoderate or unreasonable. St. Paul Fire and Marine Insurance Company v. U.S., 24 CI.Ct at 515-16; see also Wilson v. National Association of Letter Carriers, 2006 WL 3791313, *1 (ED. La. 2006)(granting motion to stay civil proceeding for 2 years and 7 months pending criminal investigation). Here, Epstein is not required to "contemplate an in haec verba iron-clad comparison of separate issues by direct proof" St. Paul Fire and Marine Insurance Company v. U.S. 24 CI.Ct at 516. Instead, a reading of the complaint, the NPA (in camera), the pleadings in support of and against Epstein's Motion to Stay along with other pleadings in the clerk's file, makes it clear that the facts in the instant matter and those in the ongoing investigation are "related" and/or "substantially similar." Id. As such, permitting this civil action to go forward would create a hardship on Epstein in that he will be forced to invoke his 5th Amendment Privilege and risk loosing this case by virtue of not being able to present evidence, or waive that right and risk a potential criminal prosecution. Eastwood v. U.S. 2008 WL 5412857, *1 (E.D. Tenn.)X"When a party to a civil action is subject to criminal proceedings and/or investigations that relate to such 4 EFTA00234811 Case 9:08-cv-80893-KAM Document 54 Entered on FLSD Docket 05/12/2009 Page 5 of 7 Page 5 civil action, courts will often stay the civil proceeding so as to prevent the use of civil discovery and evidentiary procedures to obtain evidence for use in the criminal matter). N. Courts will also stay a civil case to preserve 5th Amendment rights. Id. Further, a comparison of Fed.R.Civ. Pro. 26 may expand the rights of criminal discovery beyond the limits of Fed.R.Crim.Pro. 16(b). Epstein satisfies the requirements to stay this action as set forth in St. Paul Fire and in Eastwood, including the similarity of issues underlying the civil litigation and ongoing criminal investigation. As such, a stay should be entered in the instant matter. See also U.S. v. $75,020.00 In United States Funds, et al., 2009 WL 1010359 (M.D. G.a. 2009). III. Conclusion and Request for Relief Based upon the foregoing, Epstein is entitled to a full stay of this proceeding (and other related matters) until such time as the NPA expires and until the ongoing investigation by the USAO is closed. Alternatively, in an effort to protect Epstein's 5th Amendment and his due process rights in connection with defending these civil matters, this court should enter a stay of any discovery directed to Epstein and strike this case from the trial docket until the NPA and the ongoing investigation are both concluded and/or expired. In this manner, Plaintiff's investigation and discovery as to third parties will continue and will not be delayed. (DE 31, p.11) Epstein is invoking his 5th Amendment rights in the first place, which means that objections to discovery and deposition questions are being asserted so as not to waive those 5th Amendment rights. Once the NPA and the ongoing investigation terminate, this court could allow addition time for Plaintiff to compete Epstein's deposition and discovery directed to him, and then set this case on the Court's most available docket. Despite Plaintiff's contentions, Epstein's 51h Amendment rights and his due process rights associated therewith and in 5 EFTA00234812 Case 9:08-cv-80893-KAM Document 54 Entered on FLSD Docket 05/12/2009 Page 6 of 7 Page 6 connection with defending this civil case should trump any civil claim for money damages when it comes to timing. Fastwood v. U.S., 2008 WL 5412857, *6 (reasoning that a stay is warranted when the risk to an individual's constitutional rights is magnified). WHEREFORE, Epstein requests the following relief seeforjk above, and for such other and further relief as this court deems just and pro ROBERT D. CRITTON, JR., ESQ. Certificate of Service WE HEREBY CERTIFY that a true copy of the foregoing has been sent via U.S. Mail and facsimile to the following addressees this I), day of May, 2009. Brad Edwards, Esq. The Law Office of Brad Edwards & Atterbury Goldberger & Weiss, P.A. Associates, LLC 1 Counsel for Plaintiff Paul G. Cassell, Esq. Pro Hac Vice Co-counsel for Plaintiff Jack Alan Goldberger, Esq. Co-Counsel for Defendant Jeffrey Epstein 6 EFTA00234813 Case 9:08-cv-80893-KAM Document 54 Entered on FLSD Docket 05'12'2009 Page 7 of 7 Page 7 Florida Bar No. 224162 rcrit@bcIclaw.com MICHAEL J. PIKE, ESQ. Florida Bar #617296 inpike@bciclaw.corn BURMAN, CRITTON, LUITIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 561-842-2820 Fax: 561-515-3148 (Co-counsel for Defendant Jeffley Epstein) 7 EFTA00234814