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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶
CASE NO.: 08-CV-80993-MARRA¶
JANE DOE NO. 7,¶
Plaintiff,¶
V.¶
JEFFREY EPSTEIN,¶
Defendant.¶
| MOTION TO COMPEL AND/OR IDENTIFY JANE DOE #7 IN THE STYLE OF THIS CASE AND MOTION TO IDENTIFY JANE DOE IN THIRD-PARTY SUBPOENAS FOR PURPOSES OF DISCOVERY, OR ALTERNATIVELY,MOTION TO DISMISS SUA SPONTE,WITH INCORPORATED MEMORANDUM OF LAW¹ |
Defendant, JEFFREY EPSTEIN (“Epstein” or “Defendant”), by and through his undersigned attorneys, hereby requests that this Court enter an order identifying in the style of this case the complete legal name of the Plaintiff, JANE DOE #7 (“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 or, alternatively, Motion to Dismiss Entire Action Sua Sponte. In support, Mr. Epstein states as follows:¶
1 Several of the discovery responses attached to this Motion and to the companion “Motions to Identify” filed in other related matters are markedly different. Therefore, each requires the court’s attention on an individual basis.¶
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Coercion and Enticement to Sexual Activity in violation of 18 U.S.C. §2422, plaintiff claims entitlement to recover for “…personal injury, including mental, psychological and emotional damages” ¶33, Am. Comp., DE 19. See also Exhibit “A”, Interrogatory Response Number 9. Plaintiff also claims entitlement to “punitive damages” and “actual and compensatory damages.” DE 19.¶
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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 Amended Complaint. In this case, Plaintiff’s counsel objected to Epstein serving subpoenas on Plaintiff’s treating physicians and other third parties. Thus, this motion seeks to identify JANE DOE in the style of this case, to identify JANE DOE in various third-party subpoenas for discovery purposes and, alternatively, to dismiss this entire action sua sponte. 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 damages. For instance, witnesses may testify that Plaintiff was paid by others for similar sexual acts she claims Mr. Epstein forced upon her or that she willingly participated in certain act(s) that would negate or lessen her damages. This goes directly to Plaintiff’s damage claim.
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Likewise, subpoenas must be issued to third-party treaters and current and former employers, and those subpoenas will seek to obtain records related directly to Plaintiff’s claims and her damages (i.e., her claim for severe and permanent traumatic injuries, including mental, psychological and emotional
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is not the case when a Plaintiff places her mental, emotional, psychological and physical condition at issue.¶
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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.
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Epstein’s counsel intends to serve and depose witnesses duces tecum. If Epstein is not permitted to identify JANE DOE, 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.
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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.
b. Motion To Identify JANE DOE In Style Of This Case¶
- As discussed below, Epstein has fundamental due process right to defend himself in this civil litigation. While JANE DOE travels under a pseudonym, various newspaper articles identifying Epstein have been released discussing the alleged claims against him. Allowing JANE DOE to litigate this matter under a pseudonym is preventing Epstein from defending this suit including, but not limited to, preventing him from locating individuals that may have information about this lawsuit and information about JANE DOE that may
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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).¶
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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. 1970)(stating that the rules of discovery should be afforded broad and liberal treatment to effectuate their purpose), citing, Hickman v. Taylor, 329 U.S. 495, 501, 507 (1947).
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Next, the right to go to court to resolve disputes is a fundamental right.
D.R. Lakes, Inc. v. Brandsmart U.S.A. of West Palm Beach, 819 So.2d 971 (Fla. 4th DCA 2002). All litigants are afforded an equal opportunity. Lingle v. Dion, 776 So.2d 1073 (Fla. 4th DCA 2001). The Florida Constitution establishes the right commonly known as access to courts. Mitchell v. Moore, 786 So.2d 521 (Fla.¶
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others, diminished sense of future prospects, corruption of morals, distorted and disrupted development, loss of normal adolescent ideals.” (Emphasis Added).¶
Id. 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 Amended 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 directly relevant to her damage claims. Plaintiff seeks physical and emotional/mental personal injury type damages, and the Epstein must conduct his own discovery thereon. See supra. No valid discovery objections or exemptions exist preventing necessary and reasonable discovery.¶
To hold otherwise prevents Mr. Epstein from preparing and defending this matter.¶
- In defending this lawsuit, Mr. Epstein should be permitted broad discovery, whether admissible at trial or not. Fed.R.Civ.Pro. 26 provides, in pertinent part, that “parties may obtain discovery regarding any matter, not
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would ultimately result in reversible error at any trial.¶
II. Conclusion¶
- Epstein requests the following relief:
a. That JANE DOE be identified by her legal name in the style of this case;¶
b. 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); and¶
c. That, on an alternative basis, this court dismiss this action Sua Sponte until such time as JANE DOE identifies herself in the style of this matter. Doe v. Rostker, 89 F.R.D.at 163.¶
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.¶
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 7th day of, 2009:¶
Stuart S. Mermelstein, Esq.¶
Adam D. Horowitz, Esq.¶
Mermelstein & Horowitz, P.A.¶
18205 Biscayne Boulevard¶
Suite 2218¶
Miami, FL 33160¶
Fax:¶
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