Draft: efta02746763

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶

CASE NO.: 08-CIV-80119-MARRSI¶

JANE DOE NO. 2,¶

Plaintiff,¶

vs.¶

JEFFREY EPSTEIN,¶

Defendant.¶

Related cases:¶

08-80232, 08-08380, 08-80381, 08-80994, 08-80993, 08-80811, 08-80893, 09-80469, 09-80591, 09-80656, 09-80802, 09-81092¶

EPSTEIN'S MOTION TO QUASH AND MOTION FOR P E ORDER AND OBJECTIONS AS TO THE SUBPOENA SERVED ON JP CHASE & CO WHICH IS INCORRECTLY TITLED AND ADDRESSED TO BEAR STEARNS¶

Defendant, JEFFREY EPSTEIN, pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii), moves to quash the September 18, 2009 (incorrectly dated) ("Subpoena") attached hereto as Exhibit "A" served by Plaintiff, Jane Doe ("Jane Doe"), on JP Chase & Co ("JP Chase")Which Is Incorrectly Titled And Addressed To Bear Steams, and moves for a protective order pursuant to Fed. R. Civ. P. 26(c) and asserts various objection thereto, and states:¶

1. Purportedly, on September 18, 2009 (SIC), Jane Doe served the Subpoena (attached as Exhibit A) on JP Chase, seeking production of:

• a. The Complete Personnel File of Jeffrey Epstein, including all correspondence to and from Mr. Epstein and/or any third parties, employment applications, references, recommendations, warnings, reports, incident reports, and all other documentation for the entire time Mr. Epstein began any relationships whatsoever with Bear Stearns through the present (2009).

• b. The Complete file of Mr. Epstein's business and/or individual accounts and/or institutions for which Mr. Epstein was responsible or affiliated from the beginning of Mr. Epstein's employment relationship with Bear Steams through to the presen^t(2009).

• c. A Compete list of the person's with the most knowledge from Bear Steams of: (i) the hiring of Jeffrey Epstein by Bear Steams, (ii) the employment of Jeffrey Epstein by Bear Steams, (iii) the departure of Epstein from employment with Bear Steams, (iv) Epstein's relationship with Bear Steams subsequent to his departure as an employee of Bear Steams and (v) Epstein's role as it relates to the prosecution of Bear Steams employees or executives.

• 2. As set out in JP Chase's objections to the Subpoena (attached as Exhibit

"B"), which are incorporated herein by reference, Epstein also objects to the Subpoena pursuan^t to Rule 45(c)(2)(B) on the following grounds:¶

• a. The Subpoena is jurisdictionally defective in that it is issued out of the Southern District of Florida and addressed to aNY entity.
• b. It appears to lack avalid Civil Action Number.
• c. It does not provide sufficient time to respond as dated and appears to be improperly dated (i.e., September 18, 2009).
• d. The Subpoena is overly broad, irrelevant, harassing, vague, ambiguous, seeks confidential and proprietary information, seeks confidential and proprietary financial information (most of which pertain to unknown and unidentified third parties), is unduly burdensome and is not reasonably calculated to lead to the discovery of admissible evidence.
• e. JP Chase has responded, despite its objections, that the information is not in its pos custody or control, and seeks to impose obligations on JP MI chase beyond those required by the Federal Rules of Civil Procedure.
• f. The Subpoena appears to seek information that is protected by the attorney-client and work-product privileges (e.g., recommendations, warnings, reports, incident reports, business and/or individual accounts and/or institutions for which Mr. Epstein was responsible or affiliated from the beginning of Mr. Epstein's employment relationship with Bear Stearns through to

the present, the hiring of Jeffrey Epstein by Bear Stearns, the employment of Jeffrey Epstein by Bear Steams, the departure of Epstein from employment with Bear Steams, Epstein's relationship with Bear Stearns subsequent to his departure as an employee of Bear Stearns and Epstein's role as it relates to the prosecution of Bear Stearns employees or exectid it seeks to impose an undue burden and expense on JP Chase as stated in its attached objections.¶

3. Epstein's work history is not an issue in this case, and no allegations are made in the complaint relative to same.

4. Moreover, the clients he may have serviced while employed at Bear Stearns are not relevant to the claims alleged, and those individuals that may have been his clients have ^a Constitutional Right to Privacy, especially with regard to their financial information (i.e., the Subpoena seeks all communications between Epstein and all third parties and, as well, seeks to identify business and/or individual accounts and/or institutions for which Mr. Epstein was responsible). The Subpoena is not narrowly tailored to prevent disclosure of third-party financial information. Even so, JP Chase has responded that no such documents are within its possession, custody or control. Therefore, the Subpoena is moot and should be quashed.

5. Plaintiff is not entitled to "carte blanche" access to ALL of Defendant's clients' business and/or individual accounts and/or institutions he was responsible for during his alleged employment with Bear Steams. Is Plaintiff's counsel serious?

6. When the purpose of the discovery is to obtain information for reasons other than the prosecution or defense of the lawsuit, discovery will be denied in its entirety." See, Ocean Atlantic Woodland Corporation v. DRH Cambridge Homes, Inc., ²⁶²F.Supp.2d 923 (N.D. Ill. 2003). Epstein has the right to object to these Subpoenas because he has a personal right or privilege with respect to the subject matter requested in the Subpoenas, i.e., his financial Jane Poe V. Epstein

information or "individual accounts", etc. See, v. Midland Brake. Inc., 162 F.R.D. ⁶⁸³ (D. Kansas, 1995); Berkeley v. Eisen, ⁶⁹⁹So.2d 789 (Fla. 4th DCA 1999) (Court orders compelling discovery constitute astate action that can impinge on an individual's constitutional rights, including the right of privacy provided under the Florida Constitution — including the third parties Plaintiff seeks to identify through financial documents). It is well recognized that ^a person's financial information is entitled to protection by the state constitutional right of privacy if there is no compelling or relevant reason to compel disclosure. See Mogul v. Mogul, ⁷³⁰ So.2d 1287 (Fla. 5th DCA 1999). Here, there is no relevant or compelling reason for the Plaintiff to compel the financial information other than to attempt to harass the Defendant, which includes Epstein's financial information and other third-party financial information. To the extent the production of information reveals the names of Epstein's clients and/or aclient list(s) could be derived therefrom, that too could violate Epstein or JP Chase's trade-secret and/or commercially sensitive information as same is proprietary business data. Berkeley v. Eisen, ⁶⁹⁹ So.2d 789 (Fla. 4th DCA 1997)(The significant harm to most, if not all, of certain unsuspecting individuals in allowing such a fishing expedition (i.e., the disclosure of their names) is great and far outweighs the plaintiff's need for same. Non-party clients have areasonable expectation of privacy).¶

7. Florida Statute §655.059 sets, in part, the standard in Florida for disclosing personal financial data, and equally applicable is 15 U.S.C. §6801, Protection of Non-Public Personal Information. See also 5 Fla.Jur. 2d, Banks and Lending Institutions, §49 and Banc of America Investment Services, Inc. v. Barnett, ⁹⁹⁷So.2d 1154 (3d DCA 2008)(order compelling production of bank records based upon account holder's refusal to return five million shares transferred to their account due to clerical error would result in harmful invasion of third party's

privacy rights that could not be remedied on appeal and, thus, bank was entitled to writ of certiorari to quash order; trial court did not weigh privacy interests of third parties against interests of account holders, and demand for confidential documents was overly broad, irrelevant to the issues and was not reasonably calculated to lead to the discovery of admissible evidence).¶

8. 15 U.S.C. §680 (a), Protection of Non-Public Personal Information, provides: "[i]t is the policy of Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers non-public personal information." 15 U.S.C. §680 (b)(1) and (3) provide, in relevant part, that financial institutions must: ". . .insure the security and confidentiality of customer records and information" and "protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer." Id. Certainly, this court could foresee inconvenience on the part of any third-party having to reveal their "entire file" and/or "business and/or individual accounts" showing detailed financial data or financial strategy etc. . . . See e.g., Arias-Zeballos v. Tan, ²⁰⁰⁷WL 210112, at *1 (S.D.N.Y.2007)(quashing Subpoena to bank seeking copies of defendant's personal checks and documents concerning the purchase of residential real estate, finding that "courts have found that individuals, whose banking records are Subpoenaed, have a privacy interest in their persona^l financial affairs that gives them standing to move to quash aSubpoena served on ^anon-party financial institution); Transcor, Inc. v. Furney Charters, Inc., ²¹²F.R.D. 588, ⁵⁹¹ (D.Kan.2003)(Personal rights claimed with respect to bank account records give a party sufficient standing to challenge athird party Subpoena served upon financial institutions holding such information). Here, Plaintiff has failed to even identify the third-parties whose records may be produced and, as ^aresult, substantial harm could be done in that those unidentified parties will

not be afforded their right to object to same. However, as set forth below, Epstein himself has ^a right to object to the Subpoena.¶

9. For instance, Epstein maintains a complicated business practice, which revolves around confidential relationships and proprietary financial information of third-parties. To the extent the production of information reveals the names of Epstein's clients and/or aclient list(s) could be derived therefrom, that too could violate Epstein or JP= Chase's trade-secret and/or commercially sensitive information as same is proprietary business data. Berkeley v. Eisen, ⁶⁹⁹So.2d 789 (Fla. 4'^h DCA 1997)(the significant harm to most, if not all, of certain unsuspecting individuals in allowing such a fishing expedition (i.e., the disclosure of their names) is great and far outweighs the plaintiff's need for same.) As such, Epstein has a right and privilege to object to and move to quash the above Subpoena, especially since it seeks to identify the financial information of several unidentified third parties that may have been his clients. Transcor, Inc. v. Fumey Charters, ²¹²F.R.D. at 590-91; see also Woodward v. Berkery, ⁷¹⁴ So.2d 1027 (Fla. 4th DCA 1998)(the "law in Florida recognizes an individual's legitimate expectation of privacy in individual's private bank account [and] financial records"), Winfield v. Division of Pari-Mutuel Wagering, ⁴⁷⁷So.2d 544 (Fla. 1985); Art. 1, §23, Fla. Const. (("Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein.") and NM v. Heart Institute of Port St. Lucie, Inc., 863 So.2d 189 (Fla. 2003)(the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it in acase in which the information is not relevant")

10. Accordingly, and pursuant to Fed. R. Civ. P. 45(c)(3)(AXiii), Epstein respectfully requests the Court quash the Subpoena and/or enter an appropriate Motion for Protective Order.

WHEREFORE, Defendant, JEFFREY EPSTEIN, respectfully requests the Court, pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii), quash the Subpoena directed to Bear Stearns and grant any additional relief the Court deems just and proper including, but not limited to, a protective order.¶

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 17 day of September, 2009¶

Respectfully submitted,¶

Certificate of Service¶

Jane Doe No. 2 v. Jeffrey Epstein
Case No. 08-CV-80119-MARRA [REDACTED]¶

Stuart S. Mermelstein, Esq.
Adam D. Horowitz, Esq.
Mermelstein & Horowitz, P.A.
18205 Biscayne Boulevard
Suite 2218
Miami, FL 33160
305-931-2200
Fax: 305-931-0877
ssm@sexabuseattorney.com
ahorowitz@sexabuseattorney.com¶

Counsel for Plaintiffs
In related Cases Nos. 08-80069, 08-80119, 08-80232, 08-80380, 08-80381, 08-80993, 08-80994¶

Richard Horace Willits, Esq.
Richard H. Willits, P.A.
2290 10^th Avenue North
Suite 404
Lake Worth, FL 33461
561-582-7600
Fax: 561-588-8819
Counsel for Plaintiff in Related Case No. 08-80811
reelrhw@hotmail.com¶

Jack Scarola, Esq.
Jack P. [REDACTED], Esq.
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
561-686-6300
Fax: 561-383-9424
jsx@searcylaw.com
jph@searcylaw.com
Counsel for Plaintiff, C.M.A.¶

Bruce Reinhart, Esq.
Bruce E. Reinhart, P.A.¶

Brad [REDACTED], Esq.
Rothstein Rosenfeldt Adler
401 East Las Olas Boulevard
Suite 1650
Fort Lauderdale, FL 33301
Phone: 954-522-3456
Fax: 954-527-8663¶

bedwards@rra-law.com
Counsel for Plaintiff in Related Case No. 08-80893¶

Paul G. Cassell, Esq.
Pro Hac Vice
332 South 1400 E, Room 101
Salt Lake City, UT 84112
801-585-5202
801-585-6833 Fax
cassellp@law.utah.edu¶

Co-counsel for Plaintiff Jane Doe¶

Isidro M. [REDACTED], Esq.
[REDACTED] Law Firm, P.A.
224 Datura Street, Suite 900
West Palm Beach, FL 33401
561-832-7732
561-832-7137 F
isidrogarcia@bellsouth.net¶

Counsel for Plaintiff in Related Case No. 08-80469¶

Robert C. Josefsberg, Esq.
Katherine W. Ezell, Esq.
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
305 358-2800
Fax: 305 358-2382
rjosefsberg@podhurst.com
kezell@podhurst.com¶

Counsel for Plaintiffs in Related Cases Nos. 09-80591 and 09-80656¶

250 S. Australian Avenue Suite 1400 West Palm Beach, FL 33401 561-202-6360 Fax: 561-828-0983 ecf brucereinhartlaw.com¶

Counsel for Defendant¶

Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, FL 33401-5012 561-659-8300 Fax: 561-835-8691 jagesqabellsouth.net¶

Counsel for Defendant Jeffrey Epstein¶