Draft: efta02748617

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA¶

CASE NO.: 08-CIV-80119-MARRA/JOHNSON¶

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 REPLY TO JANE DOE #3'S RESPONSE TO EPSTEIN'S MOTION FOR SANCTIONS¶

Defendant, JEFFREY EPSTEIN ("Epstein"), submits this Reply to Plaintiff's, Jane Doe #3, Response to Epstein's Motion for Sanctions and states:¶

• 1. On January 13, 2010, Epstein filed a Motion for Sanctions (DE #450) against Jane Doe #3 for unilaterally terminating her Rule 35 IME on November 24, 2009.
• 2. On February 1, 2010, Jane Doe #3 filed her Memorandum in Response to Defendant's Motion for Sanctions ("Response") (DE #456).
• 3. Jane Doe #3's Response is based, in part, on the demonstrably false assertion that her counsel did not know Epstein kept an office in the building where the IME took place.
• 4. As set forth in Epstein's Motion and in Jane Doe #3's Response (Exhibit A), Epstein's maintained an office on the le floor of the building located at 250 Australian Avenue, in West Palm Beach, Florida. Indeed, the Court's October 23, 2009 Order (DE #369) clearly

Jane Doe #2 V. ElAtelQ¶

Case No. 08-CIV-80119¶

Epstein's Reply to Jane Doe #3's Response to Epstein's Motion for Sanctions¶

Page 2 of 6¶

provides that Epstein will view the depositions from his office, "in a separate room on the 14th floor...."¶

5. Jane Doe #3's assertions that the Florida Science Foundation is not listed on the building's directory or that the company was administratively dissolved in September, 2009 for failure to file an annual report do not controvert the fact that Jane Doe #3's counsel knew Epstein maintained an office at 250 Australian Avenue.

6. On November 10, 2009, two weeks before Jane Doe #3's IME, Adam Horowitz attended the deposition of at 250 Australian Avenue in which Epstein viewed the deposition from his office on the 14i ' floor. Thus, any argument that counsel did not know Epstein still maintained an office at 250 Australian Avenue, either because the Florida Science Foundation's name was not on the building directory or because the company was administratively dissolved in September 2009 should fall on deaf ears. It is clear that Mr. Horowitz knew, two weeks before Jane Doe #3's IME, that Epstein's office was located at 250 Australian Avenue.'

7. Just as the Florida Science Foundation is not listed on the building's directory, neither is Jessica Arbour, counsel who attended the subject IME, listed as an attorney on the Mermelstein & Horowitz, P.A. (M&H) website. Attached as Exhibit A is the "Attorneys" section of the M&H website, which noticeably fails to list Ms. Arbour. In addition, Ms. Arbour's page on Martindale.com (attached as Exhibit B) does not indicate any affiliation with

In addition, counsel for Jane Doe #3 attended the following depositions at 250 Australian Ave., which Epstein viewed from a video feed to his: LM on September 24, 2009, Jane Doe on September 30, 2009, Jane Doe #4 on October 27, 2009, as well as others. There is no question Jane Doe #3's counsel knew Epstein maintained an office in the building.¶

lane Doe #2 v. Epstein¶

Case No. 08-CI V.80119¶

Epstein's Reply to lane Doe #3's Response to Epstein's Motion for Sanctions¶

Page 3 of 6¶

M&H. It merely provides a Miami address (different from M&H's office address) and states that she attended DePaul law school and was admitted to practice in 2009.¶

8. Although it is uncertain exactly when Ms. Arbour joined M&H, the Florida Bar News announced that she joined the firm in its October 15, 2009 edition of "On the Move" (attached as Exhibit C), which was just over one month before the subject IME. Thus, it is likely that Ms. Arbour joined M&H sometime in late 2009.

9. If Ms. Arbour did not know Epstein maintained an office at the building, it is only because M&H failed to advise her of this fact.

10. That III MI not have known that Epstein maintained an office at 250 Australian Avenue is inapposite since knowledge by any member of a law firm is imputed to all attorneys in the firm. See e.g. In re Mortgage & Realty Trust, 195 B.R. 740, 754-55 (Bankr., C.D. Cal. 1996) (noting that the imputed knowledge theory holds that knowledge by any member of a law firm is knowledge by all of the attorneys in the firm, partners as well as associates); Westinghouse Elec. Corp. v. Kerr Corp., 50 F.2d 1311, 1318 (7th Cir. 1978) (holding that rule regarding imputation of knowledge applies equally to large firms as well as smaller firms).

11. Thus, since Adam Horowitz knew that Epstein maintained an office in the building two weeks before the subject IME, this knowledge is imputed to Ms. Arbour and she is deemed to have knowledge of this fact.

12. Moreover, the purpose behind the Court's October 23, 2009 Order (DE #369) was to provide a procedure to avoid Epstein crossing paths with the respective Plaintiffs at their

)ane Doe 42 v. Epstein¶

Case No. 08-CIV-80119¶

Epstein's Reply to Jane Doe 43's Response to Epstein's Motion for Sanctions¶

Page 4 of 6¶

depositions since Epstein maintained an office at the building where the depositions were to take place.¶

13. M&H's failure to inform their associate, Ms. Arbour, that Epstein maintained an office in the building was likely the cause of the instant dispute. Had Ms. Arbour been told of this important fact, she likely would have made some arrangement or taken some precaution to avoid her client seeing Epstein. For example, Ms. Arbour could have called the undersigned the day before the IME and stated "I am attending the IME of my client tomorrow, is Epstein going to be at his office? If so, we should consult with each other about when our respective clients will be coming and going from the building to avoid a run-in." Or, once Ms. Arbour realized that her client would be going outside to take smoke breaks, she could have called the undersigned and said "my client is going to be outside taking smoke breaks from time to time throughout the day. Should we designate an area for the smoke breaks that Epstein will not walk by? Should we call you when we're going outside?" Ms. Arbour could have also followed the procedure outlined in DE #369 (assuming she knew of such procedure). There are a myriad of different things Ms. Arbour could have done, and may very well have done, had she been informed by M&H that Epstein maintained an office in the building.

14. Because this alleged encounter, which Epstein denies because he did not see Jane Doe #3 or her counsel Epstein's Affidavit, Exhibit A to DEN 450), was wholly the fault of Jane Doe #3's counsel, the Court should grant Epstein's Motion for Sanctions.

15. Jane Doe #3's unilateral cancellation of the IME was not justified and resulted in a substantial waste of physician time, attorney time, court reporter and videographer time. The costs associated with the court reporter and videographer currently totals $1,260.00 for Visual Awe Doe #2 v. Eostein

Case No. 08-CIV-S0119¶

Epstein's Reply to Jane Doe #3's Response to Epstein's Motion for Sanctions¶

Page 5 of 6¶

Evidence and $2,207.65 for Prose Court Reporting for a total amount of $3,467.65. See Exhibit B to DE #450.¶

16. Now, Dr. will be required to travel back to West Palm Beach to complete Jane Doe #3's IME. Moreover, additional court reporter and videographer expenses will be incurred to complete the IME.

17. Because of her unjustified cancellation of the IME, Jane Doe #3 should bear the foregoing costs.

WHEREFORE, Defendant moves for an order granting sanctions against Jane Doe #3, to include attorneys fees and costs as set forth above and costs associated with the attendance of the court reporter, the transcript and the presence of the videographer and direction that Jane Doe #3 appear for !ME within fifteen (15) days from the date of the Court's order at the undersigned's office, and for such other and further relief as this court deems just and proper.¶

/s/ Michael J. Pike¶

Robert D. Critton Jr.¶

Florida Bar #224162¶

Michael J. Pike¶

Florida Bar #617296¶

Attorneys for Defendant Epstein¶

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 1 day of February, 2010:¶

Jane Doe #2 v. Epstein¶

Case No. 08-CIV-80119¶

Epstein's Reply to Jane Doe #3's Response to Epstein's Motion for Sanctions¶

Page 6 of 6¶

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 Plaintiff Jane Doe #3¶

Jack Alan Goldberger¶

Atterbury Goldberger & Weiss, P.A.¶

250 Australian Avenue South¶

Suite 1400¶

West Palm Beach, FL 33401-5012¶

561-659-8300¶

Fax: 561-835-8691¶

jagesq@bellsouth.net¶

Co-Counsel for Defendant Jeffrey Epstein¶

Respectfully submitted,¶

By: /s/ Michael J. Pike¶

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¶

561/842-2820 Phone¶

561/515-3148 Fax¶

(Counsel for Defendant Jeffrey Epstein)¶