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Court filing · Aug. 16, 2013

Court filing, 2013-08-16

EFTA00179692

Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013

Page 5 of 10

not to provide legal advice or assistance to the police officers but rather to provide the city with information relating to alleged indiscretion within the department).

Attorney-Client Relationship Not Established. Any attorney-client privilege has not been properly invoked because the Government has not provided factual material identifying who is the attorney, who is the client, and how the communications were confidential. See Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003).

B. Deliberative Process Privilege

Privilege Not Properly Invoked – Any deliberative process privilege has not been properly asserted, because it must be asserted by the head of the department having control over the requested information who must explain why revealing the information would compromise deliberative processes. See Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C. Cir. 2000).

Final Decision Exempted from Privilege – Any deliberative process privilege would only cover only the processes by which a decision was made, not the final decision itself. See, e.g., NLRB v. Sears Roebuck & Co., 421 U.S. 132, 151-52 (1975).

Qualified Privilege Overridden By the Victims’ Need for the Documents – Any deliberative process privilege would be a qualified privilege, which would be overridden by the victims’ compelling need to obtain the materials here. See, e.g., Newport Pac., Inc. v. County of San Diego, 200 F.R.D. 628, 638-41 (S.D. Cal. 2001) (in action charging county Board of Supervisors with violating Federal Fair Housing Act, the interest in free expression by policy makers during the deliberative process leading up to those actions was outweighed by the litigant’s interest in obtaining information concerning those deliberations).

C. Investigative Privilege

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EFTA00179693

Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013

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Privilege Not Properly Invoked – Any investigative privilege has not been properly asserted, because it must be asserted by the head of the department having control over the requested information who must explain why revealing the information would compromise deliberative processes. See Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C. Cir. 2000).

Qualified Privilege Overridden By the Victims’ Need for the Documents – Any investigative privilege would be a qualified privilege, in which the public interest in nondisclosure must be balanced against the need of a particular litigant for access to the privileged information. Tuite v. Henry, 98 F.3d 1411, 1418 (D.C. Cir. 1996). The balancing is ordinarily made by considering the ten factors identified in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973). Those ten factors decisively tip in favor of the victims receiving access to the information.

D. Work Product Doctrine.

No Work Product Doctrine in the Context of a Claim Against Public Prosecutors –

The work product doctrine does not apply to claims advanced by crime victims that federal prosecutors have violated their public responsibilities under the Crime Victims’ Rights Act. See U.S. v. Arthur Young & Co., 465 U.S. 805, 817 (1984) (refusing to extend work product privilege to public accountants, because they have ‘a public responsibility transcending any employment relationship with the client”); In re Grand Jury Subpoena, 112 F.3d at 919-21 (“the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials.”).

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Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013

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Qualified Privilege Overridden By the Victims’ Need for the Documents – The work product doctrine is a qualified privilege that can be overcome where a litigant shows it has a substantial need for the materials and that it has exhausted other means of obtaining the relevant information it seeks. In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 185-86 (2d Cir. 2007). The victims here can make this showing.

Work Production Privilege Does Not Apply When the Attorney’s Conduct is at Issue – If the attorney’s conduct is a central issue in the case, the work-production protection does not apply. See, e.g., In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981); Charlotte Motor Speedway, Inc. v. International Ins. Co., 125 F.R.D. 127, 130 (M.D.N.C. 1989).

E. Rule 6(e) – Grand Jury Secrecy

Court-Authorized Disclosure Not Covered Under Rule 6(e)(3)(E) – The Court can authorize disclosure of grand jury materials pursuant to Fed. R. Crim. P. 6(e)(3)(E). It has already authorized disclosure of grand jury materials here, and the Government has no independent “privilege” to interpose against court-ordered disclosure of grand jury materials.

The Court Has Inherent Power to Release Grand Jury Materials – The Court has “inherent power beyond the literal wording of Rule 6(e)(3) to disclose grand jury material” and has properly exercised that power here. United States v. Aisenberg, 358 F.3d 1327, 1347 (11th Cir. 2004).

Victims Have Properly Petitioned for the Release of Grand Jury Materials – A litigant can petition for release of grand jury materials. Fed. R. Crim. P. 6(e)(3)(F). The Court has properly granted the victims petition for release of the materials. They have also concurrently-filed such a petition.

6

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The CVRA Gives the Court Authority to Release Grand Jury Materials – The Court is obligated to enforce crime victims’ rights. 18 U.S.C. § 3771(b)(1) (the court “shall ensure” that crime victims receive their rights). This obligation carries with it authority to release necessary materials to protect victims’ rights, including grand jury materials.

Grand Jury Materials Can Be Severed from Other Materials – The Government can redact grand jury information from the requested materials, and produce the remaining materials. See, e.g., In re Grand Jury Investigation, 445 F.3d 266, 280 (3rd Cir. 2006).

F. The Privacy Rights of Other Victims

Government Redaction Can Resolve Privacy Concerns. The Government cannot withhold materials in this case because of the privacy rights of other victims when it has the simple option of simply redacting the names and identifying information of these other victims before producing the materials. The Government has already followed this procedure elsewhere and should do so here. See, e.g., Bates 000966-67 (materials about victim “B.B.”).

No Assertion of Privacy Rights by Other Victims. Several of the victims cited by the Government are represented by undersigned counsel and do not wish to interpose privacy rights here. Nor has the Government established that they can assert the privacy rights of other victims.

G. The Privacy Act

The Privacy Act Does Not Apply in the Context of Court-Compelled Disclosures for Discovery. See 5 U.S.C. § 552a(b)(11).

CONCLUSION

Because the Government’s assertions of privilege are not well-founded, the Court should provide all of the documents the Government submitted for in camera inspection to the victims.

7

EFTA00179696

Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 P

Page 9 of 10

DATED: August 16, 2013

Respectfully Submitted,

/s/ Bradley J. Edwards
Bradley J. Edwards
FARMER,JAFFE,WEISSING,

EDWARDS,FISTOS&LEHRMAN,P.L.

425 North Andrews Avenue, Suite 2
Fort Lauderdale,Florida33301
Telephone(954)524-2820
Facsimile(954)524-2822
Florida Bar No.:542075
E-mail:brad@pathtojustice.com

and

Paul G. Cassell
Pro Hac Vice
S.J. Quinney College of Law at the University of Utah
332 S. 1400 E.
Salt Lake City, UT 84112
Telephone: 801-585-5202
Facsimile: 801-585-6833
E-Mail: cassellp@law.utah.edu

Attorneys for Jane Doe #1 and Jane Doe #2

8

EFTA00179697

Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 10 of 10

CERTIFICATE OF SERVICE

I certify that the foregoing document was served on August 16, 2013, on the following

using the Court’s CM/ECF system:

Dexter Lee

A. Marie Villafaña

Assistant U.S. Attorneys

500 S. Australian Ave., Suite 400

West Palm Beach, FL 33401

(561) 820-8711

E-mail: Dexter.Lee@usdoj.gov

Attorneys for the Government

Roy Black, Esq.

Jackie Perczek, Esq.

Black, Srebnick, Kornspan & Stumpf, P.A.

201 South Biscayne Boulevard

Suite 1300

Miami, FL 33131

Email: pleading@royblack.com

(305) 37106421

(305) 358-2006

Jay P. Lefkowitz

Kirkland & Ellis, LLP

601 Lexington Avenue

New York, NY 10022

Email: lefkowitz@kirkland.com

(212) 446-4970

Martin G. Weinberg, P.C.

20 Park Plaza

Suite 1000

Boston, MA 02116

Email: owlmgw@att.net

(617) 227-3700

(617) 338-9538

Criminal Defense Counsel for Jeffrey Epstein

/s/ Bradley J. Edwards

9

Court filing, 2013-08-16

Court filings

DOJ Epstein Files, Data Set 9 · Aug. 16, 2013

EFTA00179692 Case 9:08-cv-80736-KAM Document 225 Entered on FLSD Docket 08/16/2013 Page 5 of 10 not to provide legal advice or assistance to the police officers but rather to provide the city with information relating to alleged indiscretion within the department). Attorney-Client Relationship Not Established. Any attorney-client privilege has not been properly invoked because the Government has not provided factual material identifying who is the attorney, who is the client, and how the communications were confidential. See Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003). B. Deliberati…