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Case 1:22-cv-10904-JSR Document 102 Filed 04/03/23¶
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK¶
GOVERNMENT OF THE UNITED¶
STATES VIRGIN ISLANDS¶
Plaintiff,¶
V.¶
JPMORGAN CHASE BANK, N.A.¶
Defendant/Third-Party Plaintiff.¶
JPMORGAN CHASE BANK, N.A.¶
Third-Party Plaintiff,¶
V.¶
JAMES EDWARD STALEY¶
Third-Party Defendant.¶
Case Number: 1:22-cv-10904-JSR¶
STIPULATED MOTION FOR APPROVAL OF PROTOCOL FOR REVIEW OF VIDEOMATERIALS AND PHOTOGRAPHS FOR THE PRESENCE OF POTENTIAL CHILD SEX ABUSE MATERIALS AND FOR DISCLOSURE OF THOSE MATERIALS¶
Plaintiffs Jane Doe 1 and the Government of the United States Virgin Islands (“Government”), by their respective counsel, move pursuant to Federal Rules of Civil Procedure 26(c), and the authority of the Court to administer proceedings before it, for approval of an agreed-upon protocol authorizing counsel for the Estate of Jeffrey E. Epstein (the “Epstein Estate”) to review videorecorded materials and photographs in the possession, custody, or control of the Epstein Estate (the “Epstein Media”) in response to subpoenas previously issued by Jane Doe 1 and, to the extent responsive to those subpoenas, disclose relevant portions of the Epstein Media¶
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(the “Responsive Media”) to Jane Doe 1’s counsel and to other parties in the litigations pending before the Court involving claims related to Jeffrey Epstein.¶
Factual Background¶
The Court is aware of the general nature of this case from earlier proceedings. For purposes of this Motion, it is relevant to note that Jane Doe 1 has alleged that she was the victim of coerced commercial sex trafficking by Jeffrey Epstein and his co-conspirators. Jane Doe 1 has issued a subpoena to the Epstein Estate, seeking certain videorecorded materials and photographs within the Epstein Media, and the Estate has agreed to produce Responsive Media in the Estate’s possession to the extent that the production is not inconsistent with federal or state law, and to the extent that the videos or photographs were not downloaded or otherwise obtained at the time through publicly-available sources.¹¶
On March 14, 2023, counsel for the Epstein Estate notified counsel for Jane Doe 1 that it had located materials within the Epstein Media that may be responsive to her subpoenas. The Estate also advised counsel for the Government and Jane Doe 1 of its concern that some of the Epstein Media might contain child sex abuse imagery (CSAM²). The knowing accessing, possession, or distribution of CSAM is forbidden by federal law. See 18 U.S.C. §§ 2252, 2252A. The Estate has expressed concern that its counsel’s review of the Epstein Media could subject counsel to criminal investigation or charges or civil claims in light of the possibility that the review¶
1 Videos or photographs that were not obtained at the time through publicly-available sources is meant to include Responsive Media that may consist of movies or You Tube videos, for example, but does not extend to Responsive Media relating to Epstein activities or properties that may have been publicly disclosed at any time.¶
2 In this motion, the parties use the term “child sex abuse imagery” or CSAM as a synonym for the inappropriate term, “child pornography.” See United States v. Larson, No. 5:19-CR-50165-RAL, 2023 WL 196171, at *1 (D.S.D. Jan. 17, 2023) (“Pornography connotes a certain aspect of consent that is impossible when the images or videos depict children.”).¶
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of the Epstein Media could involve accessing CSAM. The Epstein Estate has advised that it does not have any specific knowledge that any of the Epstein Media does, in fact, contain CSAM, but wishes to put in place an appropriate procedure in case its counsel encounters such material.¶
Proposed Review Protocol¶
Against that backdrop, counsel for the Government and Jane Doe 1 and the Epstein Estate have conferred and have agreed that the Government and Jane Doe 1 would move the Court for the entry of an order approving the following protocol for the Epstein Estate’s review of the Epstein Media for potential production to parties in the litigations pending before the Court:¶
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The Epstein Estate shall review the Epstein Media to determine its responsiveness to the subpoenas that have been issued by Jane Doe 1 and other parties to the related litigations.
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If, during the course of that review, the Epstein Estate sees a particular recording that appears to contain possible CSAM, it shall promptly stop further review of that recording and notify the Federal Bureau of Investigation (“FBI”) or such other agency or entity as the FBI may direct of the recording’s existence. No CSAM shall be copied or transmitted to another party, except as directed by the FBI or other government agency.
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If no CSAM is observed during the review, the Responsive Media will be provided to counsel for Jane Doe 1 and the Government in response to the relevant subpoena. To the extent Responsive Media is identified prior to the identification of possible CSAM, such materials also will be produced to counsel. Counsel for Jane Doe 1 and any other recipient of Responsive Media may then use this material for the prosecution or defense of the above-captioned case and make such further disclosures as are required by civil discovery rules (e.g., appropriate disclosures to opposing counsel).
The attached proposed Order reflecting this protocol is intended to:¶