EFTA00175352 Case 9:08-cv-80811-KAM Document 81 Entered on FLSD Docket 05/13/2009 Page 1 of 7 # UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CIV-80811-MARRA/JOHNSON Plaintiff, V. EPSTEIN and Defendants, 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 Plaintiff’s Response In Opposition to Defendant’s Motion to Stay and/or Continue Action (DE 64), and states: ## I. Introduction and Argument Plaintiff, in the instant matter, did not draft her own Response to the Motion to Stay. Instead, Plaintiff incorporated Plaintiffs' responses to the motion to stay in certain related matters (DE 64), and adopted those arguments as her own. $^1$ Plaintiff's Response in Opposition challenging the stay should not prevail when 5th 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. 1 Accordingly, Epstein adopts his arguments set forth in the Reply to Jane Doe’s Response In Opposition filed in 08-CIV-80893 (DE 54) and incorporates same herein by reference. EFTA00175353 Case 9:08-cv-80811-KAM Document 81 Entered on FLSD Docket 05/13/2009 Page 3 of 7 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 (attached to the Motion to Stay) “...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.” See Jack Goldberger’s Affidavit, §5 (attached to the Motion to Stay)(DE 51). 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, §7 (attached to the Motion to Stay)(DE 51). 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 adopts the arguments set forth in Jane Doe’s Response to the Motion to Stay filed in 08-CIV-80893, which asserts that the NPA is not attached to Epstein’s Motion to Stay. The Court has a copy of the NPA. While it may be sealed, this Court may review same, in camera. As such, Plaintiff’s Best Evidence argument (as adopted) 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 circumstances are such that by 3 EFTA00175354 Case 9:08-cv-80811-KAM Document 81 Entered on FLSD Docket 05/13/2009 Page 5 of 7 ## Page 5 for a stay of the civil case until the criminal aspects/investigation of Defendant's companion case are closed). 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.) (“When a party to a civil action is subject to criminal proceedings and/or investigations that relate to such 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). Id. 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). 5 EFTA00175355 Case 9:08-cv-80811-KAM Document 81 Entered on FLSD Docket 05/13/2009 Page 7 of 7 ## Page 7 served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this 13 day of May, 2009 Richard Horace Willits, Esq. Richard H. Willits, P.A. 2290 10th Avenue North Suite 404 Lake Worth, FL 33461 Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, FL 33401-5012 jagesq@bellsouth.net Counsel for Defendant Jeffrey Epstein Jack Scarola, Esq. Jack P. Hill, Esq. Searcy Denney Scarola Barnhart Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 Fax: jsx@searcylaw.com jph@searcylaw.com Co-Counsel for Plaintiff Bruce Reinhart, Esq. Bruce E. Reinhart, P.A. 250 S. Australian Avenue Suite 1400 West Palm Beach, FL 33401 ROBERT D. CRITTON, JR., ESQ. Florida Bar No. 224162 rcrit@bclclaw.com MICHAEL J. PIKE, ESQ. Florida Bar #617296 mpike@bclclaw.com BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 Phone Fax 7