Case 9:09-cv-80656-KAM Document 5 Entered on FLSD Docket 05/11/2009 Page 1 of 12 # UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 09-80656-CIV-Ryskamp JANE DOE No. 102, Plaintiff, JEFFREY EPSTEIN, Defendant, RESPONSE IN OPPOSITION TO MOTION TO PROCEED ANONYMOUSLY AND EPSTEIN'S MOTION TO COMPEL AND/OR IDENTIFY JANE DOE #102 IN THE STYLE OF THIS CASE AND MOTION TO IDENTIFY JANE DOE #102 IN THIRD-PARTY SUBPOENAS FOR PURPOSES OF DISCOVERY, WITH INCORPORATED MEMORANDUM OF LAW Defendant, JEFFREY EPSTEIN ("Epstein" or "Defendant"), by and through his undersigned attorneys, hereby files his Response In Opposition to Plaintiff, Jane Doe #102's Motion to Proceed Anonymously and files his Motion requesting that this Court enter an order identifying in the style of this case the complete legal name of the Plaintiff, JANE DOE #102 ("JANE DOE"), to substitute her complete legal name in this case in place of "JANE DOE" and, equally important, allowing Defendant to identify her in various subpoenas that Epstein must serve so Epstein can defend this case. In support, Mr. Epstein states as follows: 1 EFTA00175214 Case 9:09-cv-80656-KAM Document 5 Entered on FLSD Docket 05/11/2009 Page 3 of 12 denied, but Epstein’s Motion to Identify Jane Doe must be granted. Despite Plaintiff's allegations in the Motion to Proceed Anonymously, this Court has not "allowed" any Plaintiff to proceed anonymously. Quite simply, that is the way each Plaintiff chose to file each of their respective cases, all of which are currently being challenged in those other matters by Motion to Identify. 4. Importantly, JANE DOE claims that she has and will suffer " . . physical injury, pain and suffering, emotional distress, psychological and psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss of educational opportunities, loss of self-esteem, loss of dignity, invasion of her privacy, separation from her family . . . , and medical and psychological expenses. . . , loss on income, loss of the capacity to earn income in the future, and loss of the capacity to enjoy life” ¶¶28, Comp., DE 1; see also ¶¶36, 40, 44, 48, 52, 56, 61, 65, and 69, Comp., DE 1. 5. Epstein has a constitutional due process right to defend himself and to seek the production of information that will assist in his defense of the allegations in the Complaint. In this case, Plaintiff’s counsel intends on serving subpoenas on Plaintiff’s treating physicians and other third parties. Thus, this motion seeks not only a denial Plaintiff’s Motion to Proceed Anonymously but to identify JANE DOE in the style of this case and to identify JANE DOE in various third-party subpoenas for discovery purposes. 6. The undersigned’s experience in “Jane Doe” lawsuits is that once a Plaintiff is identified, other individuals come forward in the discovery phase with information which often directly contradicts allegations as to the events and 3 EFTA00175215 Case 9:09-cv-80656-KAM Document 5 Entered on FLSD Docket 05/11/2009 Page 5 of 12 agreed that the subpoenas filed with the clerk would be redacted. Several attorneys agreed to this procedure in those cases. In Federal Court, subpoenas are not filed with the clerk. Thus, in this matter, the undersigned offered to serve the third-party subpoenas with plaintiff's full name, date of birth and social security number (last four digits) and would agree to redact any identifying information on any documents filed with this court if that ultimately became necessary. 9. Moreover, when an order from the court is attached to the Subpoena, treaters and other third parties produce the records and show up to the depositions with the records requested because the deponent knows what to bring by virtue of knowing the identity of the Plaintiff. 10. Epstein’s counsel intends to serve and depose witnesses duces tecum. If Epstein is not permitted to identify JANE DOE (thus allowing her to proceed anonymously), how will any deponent know who the parties are and what to bring to the deposition pursuant to the duces tecum? Further, how will Epstein be able to defend the claims. Just like the Plaintiff, Epstein is entitled to due process. If the Court allows Jane Doe to proceed anonymously, Jane Doe will be permitted to present her case and Epstein will be limited in his defenses. 11. While it is within the sound discretion of this court to allow a party to proceed anonymously, Plaintiff should not attempt to utilize that discretion as a shield from legitimate and necessary discovery. Epstein has a fundamental due process right to conduct discovery. 5 EFTA00175216 Case 9:09-cv-80656-KAM Document 5 Entered on FLSD Docket 05/11/2009 Page 7 of 12 b. whether the party defending the suit would be prejudiced; c. whether the plaintiff is required to disclose information of utmost intimacy; d. whether the plaintiff is compelled to admit an intention to engage in illegal conduct, thereby risking criminal prosecution; e. whether the Plaintiff would risk suffering injury if identified; f. whether the interests of children are at stake; and g. whether there are less drastic means of protecting the legitimate interests of either party. Doe v. Frank, 951 F.2d at 323. Plaintiff does not fall under any of the factors. Moreover, even if she did meet one of the factors, “[t]he fact that [a] Doe [Plaintiff] may suffer some personal embarrassment, standing alone, does not require the granting of a request to proceed under a pseudonym.” Id; see also Doe v. Rostker, 89 F.R.D. 159 (N.D. Calif. 1981). Any substantial privacy interests JANE DOE has must outweigh the customary and constitutionally embedded presumption of openness to judicial proceedings. Doe v. Frank, 951 F.2d at 323; Doe v. Bergstron, 2009 WL 528623 (C.A.9(Or.))(denying request to proceed anonymously in civil action by Plaintiff where Plaintiff’s arrest, prosecution and acquittal were matters of public record). 14. In Sweetland v. State, 535 So.2d 646 (Fla. 1st DCA 1988), the court reasoned that the purpose of discovery is to eliminate the likelihood of surprise and to insure a fair opportunity to prepare for trial. Florida Rule of Civil Procedure 1.280(b)(1); see also Surf Drugs, Inc., v. Vermette, 236 So.2d 108, 111 (Fla. 7 EFTA00175217
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Page 9 of 12 damages. Plaintiff is claiming emotional/psychological damages. Therefore, Epstein is entitled to know her psychological condition(s) before and after the alleged incident(s) she references in the Complaint. In particular, JANE DOE alleges specific disorders as a result of Epstein’s alleged conduct – suffer ".physical injury, pain and suffering, emotional distress, psychological and psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss of educational opportunities, loss of self-esteem, loss of dignity, invasion of her privacy, separation from her family . . . , and medical and psychological expenses. . . , loss on income, loss of the capacity to earn income in the future, and loss of the capacity to enjoy life." (Emphasis Added). See supra. Epstein is also entitled to know, among other things, whether she had any physical complaints or whether there was ever any evidence of physical battery on JANE DOE’s body from the acts she complains of in the Complaint. The need to serve third-party subpoenas on medical doctors is a basic discovery need related to the claims alleged by JANE DOE for which Plaintiff’s counsel refuses to compromise. Balas v. Ruzzo, 703 So.2d 1076 (Fla. 5th DCA 1997), rev. denied, 719 So.2d 286 (Fla. 1998)(discoverability of Plaintiff’s history of sexual activity is relevant to damages); United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993)(deals with “admissibility” of other acts of sexual abuse by individuals other than the defendant to explain why a victim of abuse exhibited behavioral manifestations of a sexually abused child.”) If Plaintiff saw a psychologist or other physician during or after the time periods she claims she was assaulted by Epstein but either did not discuss or did discuss the incidents (or lack thereof) would be 9 EFTA00175218 Case 9:09-cv-80656-KAM Document 5 Entered on FLSD Docket 05/11/2009 Page 11 of 12 was charged with any crimes. If Jane Doe was charged with crimes, Epstein is entitled to obtain certified copies of those crimes Plaintiff may have committed for purposes of discovery and impeachment. Questions will be asked regarding those crimes (e.g., Have you been convicted of a crime of dishonesty or false statement? If so, how many times? Have you been convicted of a felony? If so, how many times?) To hold otherwise would not only prevent broad discovery but would ultimately result in reversible error at any trial. ## II. Conclusion and Prayer for Relief 22. Epstein requests the following relief: a. That JANE DOE's Motion to Proceed Anonymously be denied; b. That this Court grant Epstein's Motion and that JANE DOE be identified by her legal name in the style of this case; and c. That Epstein be granted leave to identify JANE DOE by her legal name in Third-Party Subpoenas (but not file them in Court or, if required, in a redacted form). WHEREFORE, Epstein, Jeffrey Epstein, respectfully requests that this Court enter said order granting the relief requested above, and for such other and further relief as this Court may deem just and proper. ROBERT D. CRITTON, JR., ESQ. MICHAEL J. PIKE, ESQ. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this day of May, 2009 11