Jack A. Goldberger
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue S., Suite 1400
West Palm Beach, FL 33401
jgoldberger@agwpa.com
smahoney@agwpa.com
Co-Counsel for Plaintiff/Counter-Defendant
Jeffrey Epstein | Paul Cassell
383 S. University
Salt Lake City, UT 84112-0730
cassellp@law.utah.edu
Limited Intervenor Co-Counsel for L.M., E.W.
and Jane Doe
|
| -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| | Jay Howell
Jay Howell & Associates
644 Cesery Blvd., Suite 250
Jacksonville, FL 32211
jayhowell.com
Limited Intervenor Co-Counsel for L.M., E.W.
and Jane Doe
|
2078181
NOT A CERTIFIED COPY
# EXHIBIT A
NOT A CERTIFIED COPY
KeyC te Ye ow Fag Negat ve Treatment D st ngu shed by Drummond Co., Inc. v. Terrance P. Co nwnvorth, Conrad & Scherer, LLP, th C r.(F a.), March 5,20 6
749 F.3d 999
United States Court of Appeals, Eleventh Circuit
Jane DOE NO. 1, Jane Doe
No. 2, Plaintiffs—Appellees,
v.
UNITED STATES of America, Defendant.
Roy Black, G. Weinberg, Jeffrey
Epstein, Intervenors—Appellants.
No. 13-12923.
April 18, 2014.
#### Synopsis
Background: Alleged minor victims of federal sex crimes brought action against the United States alleging violations of the Crime Victims' Rights Act (CVRA) related to the United States Attorney Office's execution of non-prosecution agreement with alleged perpetra After the victims moved for disclosure of correspo concerning the non-prosecution agreement, th perpetrator and his criminal defense attome to assert privilege to prevent the di of heir plea negotiations. The United States tut for the Southern District of Florida Co 9:08 CV 80736 KAM, ordered disclosurgshe intervenors filed interlocutory appeal.
Holdings: The Co held that: ( S e ppeals, Pryor, Circuit Judge,
[1] Court of A appeal; s had jurisdiction over interlocutory
[2] plea negotiations were not protected from disclosure by federal rule of evidence barring admission of plea negotiations;
[3] intervenors waived work-product privilege; and
[4] plea negotiations were not protected from disclosure by any common-law privilege.
Affirmed.
West Headnotes (15)
#### [1] Federal Courts
Ca. Jurisdiction
The court of appeals reviews d ovo whether it has jurisdiction to decid nterlocutory appeal.
3 Cases that cite tIC1Zjte
Cie E n e Cow()
#### [2] Federal
Th of appeals reviews de novo tation of the Federal Rules of
ASSCases that cite this headnote
### Federal Courts
0.• Witnesses
The issue of whether to recognize a privilege is a mixed question of law and fact that is reviewed de novo. Fed.Rules Evid.Rule 501, 28 U.S.C.A.
2 Cases that cite this headnote
#### 141 Federal Courts
0- "Clearly erroneous" standard of review in general
The court of appeals reviews for clear error factual findings made by a district court.
Cases that cite this headnote
#### [5] Federal Courts
Preliminary proceedings:depositions and discovery
Court of Appeals had jurisdiction over interlocutory appeal from District Court's discovery order requiring disclosure of plea negotiations between United States Attorney Office (USAO) and criminal defense attorneys who represented alleged perpetrator of federal sex crimes against alleged minor victims, in alleged victims' Crime Victims' Rights Act (CVRA) action against United States, in connection with USAO's execution of non-prosecution agreement with alleged perpetrator, appeal was filed by alleged perpetrator and defense attorneys, who were intervenors for limited purpose and could not challenge final judgment in victims' action against United States, the victims' action was ancillary to criminal investigation, and absent an interlocutory appeal, alleged perpetrator and attorneys would be left with no recourse to appeal the disclosure order. 18 U.S.C.A. § 3771.
I Cases that cite this headnote
### (61 Federal Courts
0- What constitutes final judgment
A final decision, for purpose of appellate jurisdiction, is one by which a district court disassociates itself from the case, and ends the litigation on the merits and leaves not more for the court to do but ex judgment. 28 U.S.C.A. § 1291.
1 Cases that cite this headnote
#### 171 Federal Courts
t— Preliminary p discovery 4- 1.1;7positions and
Discovery orders t ordinarily not final ediately appealable.
ite this headnote
### \[8( Federal Courts
0- Preliminary proceedings;depositions and discovery
The Perlman doctrine allows an intervenor to file an interlocutory appeal of an order denying a motion to quash a grand jury subpoena.
### 191 Federal Courts
4>. Preliminary proceedings;depositions and discovery
Under Perlman, a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.
I Cases that cite this headno e
110( Federal Courts Sten\] Orders
rine" provides an eral bar of interlocutory 1) conclusively determines question; (2) resolves an ssue completely separate from is of the action; and (3) is ely unreviewable on appeal from a al judgment.
Cases that cite this headnote
#### MI Criminal Law
0- Civil liabilities to persons injured; reparation
Correspondence documenting plea negotiations between the United States Attorney Office (USAO) and criminal defense attorneys for alleged perpetrator of federal sex crimes against minor victims were not protected from disclosure, in alleged victims' Crime Victims' Rights Act (CVRA) action challenging the USAO's execution of non-prosecution agreement with alleged perpetrator, by federal rule of evidence barring admission of plea negotiations; the alleged victims intended to admit the evidence of the plea negotiations to prove violations of the CVRA by the United States, not to be used against the alleged perpetrator. Fed.Rules Evid.Rule 410, 28 U.S.C.A.
1 Cases that cite this headnote
#### 1121 Federal Civil Procedure
4)... Waiver
Alleged perpetrator of federal sex crimes against minor children and his criminal defense attorneys waived any work-product privilege in correspondence documenting plea negotiations with the United States Attorney Office (USAO), in alleged victims' Crime Victims' Rights Act (CVRA) action challenging the USAO's execution of non-prosecution agreement with alleged perpetrator, where the attorneys voluntarily sent the correspondence to the United States during plea negotiations. 18 U.S.C.A. § 3771.
2 Cases that cite this headnote
#### 1131 Federal Civil Procedure
0- Waiver
Disclosure of work-product materials to an adversary waives the work-product privilege.
1 Cases that cite this headnote
#### 1141 Privileged Communications and Confidentiality
op-. Criminal records
Correspondence documen negotiations between the Attorney Office (USAO) defense attorneys for al federal sex crimes agai were not protectril from disclosure by any com vilege, in alleged victims' C 1e tims' Rights Act (CVRA) action challenging the USAO's execution of -prosecution agreement with alleged perpctra . 18 U.S.C.A. § 3771; Fed.Rules Evid.Rule 501,28 U.S.C.A. ea ates an criminal rpetrator of minor victims
There is a presumption against common-law privileges which may only be overcome when it would achieve a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. Fed.Rules Evid.Rule 501,28 U.S.C.A.
I Cases that cite this headnote
#### Attorneys and Law Firms
9001 Paul Cassell, Univers\] tah College of Law, Salt Lake City, UT, Bra Jaffe Weissing Edwa istos & Lehman, PL, Fort Lauderdale, FL, Jay J. Howell & Associates, Jacksonville, FL, for s Appellees.
G. Weinberg, PC, Boston, ucline L. Perezek, Black Srebnick pf, PA, Miami, FL, Jay P. Leflcowitz, is, LLP, New York, NY, for Intervenors
ifredo A. Ferrer, Dexter Lee, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, Ann C. AS sae, Villafana, U.S. Attorney's Office, West Palm Beach, FL, for Defendant.
1 Cases that cite this headnote
#### 1151 Privileged Communications and Confidentiality
Privileged Communications and Confidentiality
Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:08 cur 80736 KAM.
Before PRYOR and Circuit Judges, and HONEYWELL, • District Judge.
#### Opinion
PRYOR, Circuit Judge:
This appeal requires us to decide two issues: whether we have jurisdiction over an interlocutory appeal by criminal defense attorneys and their client who intervened in a proceeding ancillary to a criminal investigation to claim a privilege that would prevent the disclosure of their plea negotiations; and, if so, whether a privilege bars crime victims from discovering plea negotiations. The United States investigated Jeffrey Epstein's sexual abuse of minors, but failed to confer with the victims before entering a non-prosecution agreement with Epstein. Two victims filed suit against the United States to enforce their rights under the Crime Victims' Rights Act, 18 U.S.C. § 3771, and sought to discover the correspondence between Epstein's attorneys and the United States regarding the non-prosecution agreement. Epstein and his attorneys then intervened to object to that discovery as privileged. The district court overruled their objection and ordered the United States to disclose the correspondence to the victims. After the intervenors filed this appeal, the victims \*1002 moved to dismiss it for lack of jurisdiction. Because we conclude that we have jurisdiction to decide this appeal and that the plea negotiations are not privileged from discovery, we affirm.
## I. BACKGROUND
In 2006, the Federal Bureau of Investigation began investigating allegations that Jeffrey Epstein had sexually abused several minor girls. The United States Attorney's Office for the Southern District of Florida accepted Epstein's case for prosecution, and the Federal Bureau of Investigation issued victim notification letters to two minors, Jane Doe No. 1 and Jane Doe No. 2, in June and August 2007. Extensive plea negotiations ensued betty the United States and Epstein. On September 24, 2 United States entered into a non-prosecution a with Epstein in which the United States ag any federal charges against Epstein in e e f his offer to plead guilty to the Florida off es of itation of prostitution and procurement of mi engage in prostitution. Fla. Stat. §§ 796.07, 03.
Not only did the Unit ates nkglect to confer with the victims before it to into the agreement with Epstein, it also fail to of them of its existence for at least nine months. The U ted States sent post-agreement letters to the_victinis reporting that the "case is currently under investi et.'on" , and explaining that Tiflis can be a lengthy process (rid we request your continued patience while we conduct a thorough investigation." And in June 2008, the United States asked the victims to explain why federal charges should be brought against Epstein without mentioning the agreement to them.
On June 27, 2008, the United States informed the victims that Epstein planned to plead guilty to the Florida charges three days later, on June 30, 2008. But the United States failed to disclose that Epstein's pleas to those state charges arose from his federal non-prosecution agreement and that the pleas would bar a federal prosecution. The victims did not attend the state court proceedings.
On July 7, 2008, Jane Doe No. I filed a petition alleging that she was a victim of federal crimes committed by Esptein involving sex trafficking of children by fraud and enticing a minor to commit prostitution and that the United States had wrongfully excluded her from plea negotiations and violated the Crime Victims' Rights Act. 18 U.S.C. § 3771. She alleged that violated her right to confer with fe right to be treated with fairness, notice of relevant court p receive information about answered that it used the rights afforded the Act did not apply potential fed the initia e United States rosecutors, her 've timely gs, and her right to The United States orts" to comply with under the Act, but that ndictment negotiations with ndants. After Jane Doc No. 2 joined the district court found that both as "crime victims" under the Act. 18 . Among other relief, the victims sought the non-prosecution agreement.
ctims' petition remained dormant for years while they pursued a federal civil suit against Epstein and reached a settlement agreement with him. As a basis for relief against Epstein in the civil suit, the victims relied on Epstein's waiver of his right to contest liability in the non-prosecution agreement. Over Epstein's objection, the district court in that civil suit ordered the United States to produce the documents given to Epstein's attorneys during his plea negotiations. The victims received correspondence written by the \*1003 United States, but they never received any correspondence written by Epstein's attorneys during the plea negotiations with the United States.
In 2011, the victims renewed the prosecution of their petition against the United States. The victims moved to use correspondence between the United States and Esptein's attorneys during the plea negotiations to prove violations of their rights under the Act. And the victims later moved the district court to compel the United States to produce all requested discovery about the plea negotiations.
Epstein and his criminal defense attorneys, Roy Black and Weinberg, moved to intervene for the limited
purpose of challenging the disclosure and use of the correspondence they wrote during plea negotiations. After the district court granted their permissive intervention, Fed.R.Civ.P. 24(b), the intervenors moved for protective orders. The intervenors argued that the work-product privilege protects their correspondence; that Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure II create a privilege for plea negotiations; and that their correspondence contained confidential grand jury material. They also urged the district court to recognize a common-law privilege for plea negotiations. The United States responded that the court should consider the correspondence privileged, but that it would disclose the correspondence if the court ordered it to do so.
Epstein later filed two other motions to intervene in a limited capacity one to challenge the disclosure of grand jury materials and another to challenge any remedy that would violate constitutional and contractual rights under the non-prosecution agreement. The attorney-intervenors did not join either of these motions. The district court has not yet ruled on Epstein's motion to intervene to prevent disclosure of grand jury materials, but the district court has "allowed [him] to intervene with regard to any remedy issue concerning the non-prosecution agreement."
The district court then issued two discovery both of which the intervenors challenge in In the first, the district court denied t ors' motions for protective orders and g ictims the right to proffer the corresponde ween the United States and Epstein's at eys, but the district court reserved "ruling on the rel r admissibility" of any of the correspo cc t rove violations of the Act. In the seco d, a district court required the United States a ers to all outstanding requests for a nd to produce documents in response to for production by the victims, including "a ocumentary material exchanged by or between the ederal government and persons or entities outside the federal government (including without limitation all correspondence generated by or between the federal government and Epstein's attorneys)." After the intervenors filed this interlocutory appeal, the victims moved to dismiss the appeal for lack of jurisdiction. This Court later entered a stay of the second order, which required the United States to disclose the correspondence to the victims.
#### II. STANDARDS OF REVIEW
III 121 131 141 Two standards of review govern issues in this appeal. We review de now whether we have jurisdiction to decide this interlocutory appeal before addressing the merits. United States v. 413 F.3d 1295, 1299 (11th Cir.2005). We also review de novo the interpretation of the Federal Rules of Evidence. See United States v. Campo, 459 F.3d 1121, 1174 (11th Cir.2006); Pickett v. Iowa Beef Process 1279 (11th Cir.2000). And the issu recognize a privilege under Fide is a mixed question of law an • a Adkins v. Christie, 488 F But we review for cl a district court. Mo Med Ctr., 506 F s, 209 F.3d 1276, ether \*1004 to vidence 501 at we review de novo. 27 (11th Cir.2007). ual findings made by v. Mobile Infirmary 19 (11th Cir.2007). the
### M. DISCUSSION
our discussion in two parts. First, we explain have jurisdiction over this interlocutory appeal united intervenors who, as claimants of a privilege, hallenge a disclosure order directed at the United States, a disinterested party. Second, we explain that the plea negotiations are not privileged from disclosure.
#### A. We Have Jurisdiction To Decide This Interlocutory Appeal.
(51 The victims argue that we should dismiss this appeal for lack of jurisdiction for two reasons. First, they argue that the Perlman doctrine, which permits a claimant of a privilege to appeal a non-final judgment, applies only to grand jury subpoenas. Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). Second, they argue that a decision of the Supreme Court, Mohawk Industries, Inc. v. Carpenter. 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), forecloses an interlocutory appeal of a denial of a claim of privilege.
161 171 The courts of appeals "have jurisdiction of appeals from all final decisions of the district courts of the United States, ... except where a direct review may be had in the Supreme Court." 28 U.S.C. § 1291. A "final decision" is one "by which a district court disassociates
itself from the case," Mohawk, 558 U.S. at 106, 130 S.O. at 604 05 (alteration omitted) (quoting Swint v. Cnty. Commn, 514 U.S. 35, 42, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995)), and "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment," Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1052 (11th Cir.2008) (quoting McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1338 (I I th Cir.2007)), afjd, 558 U .S. 100, 130 S.O. 599, 175 L.Ed.2d 458 (2009). Discovery orders are ordinarily not final orders that are immediately appealable. hi Five notable exceptions to this rule exist: the Perlman doctrine; the collateral-order doctrine, v. Beneficial Indus. Loan Corp., 337 U.S. 541,69 S.O. 1221, 93 L.Ed. 1528 (1949); a certification provided by statute, 28 U.S.C. § 1292(b); a petition for a writ of mandamus; or an appeal of a contempt citation.
RI (SI The Perlman doctrine allows an intervenor to file an interlocutory appeal of an order denying a motion to quash a grand jury subpoena. See, e.g., In re Grand Jury Proceedings, 832 F.2d 554, 556 58 (11th Cir.1987). "'This exception, derived from Perlman v. United States, ... permits an order denying a motion to quash to be 'considered final as to the injured third party who otherwise powerless to prevent the revelation.' " 558 (quoting In re Grand Jury Proceedings (Fs F.2d 199, 202 (5th Cir. Unit A 1981)). Under discovery order directed at a disinterest treated as an immediately appealable use the third party presumably lacks a su t ake in the proceeding to risk contempt bjefusing compliance." Church of Scientology of Cal v. States, 506 U.S. 9, 18 n.11, 113 S.Ct. 44 52 n. I, 121 L.Ed.2d 313 (1992); see also In re it ash at Belle Harbor, N.Y. on Nov. 12, 2001, 4 , 106 (2d Cir.2007) ("[T]he Perlman except n ant only to appeals brought twos by t ho e a privilege where the disputed subpoena is d t at someone else.").We have exercised jurisdiction un the Perlman doctrine when the party ordered to disclose the information "has no direct and personal interest in the suppression of the information" and would be reluctant to risk a contempt citation, such that "the order is definitely final as to the [claimant of the privilege]." Fine, 641 F.2d at 201 02. We have not invoked the Perlman doctrine to exercise jurisdiction over an interlocutory appeal outside the context of a grand jury proceeding. See, e.g., In re Fed Grand Jury Proceedings (=.). 975 F.2d 1488, 1491 92 (11th Cir.1992); In
re Grand Jury Proceedings, 832 F.2d at 558; Fine, 641 F.2d at 201 02. But we have exercised jurisdiction over interlocutory appeals by claimants of a privilege in some civil proceedings. See Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1465 66 (11th Cir.1984) (exercising jurisdiction because the appellant "claims a privilege of non-disclosure relating to materials that another party has been directed to produce"); Int'l Horizons, Inc. v. Comm. of Unsecured Creditors (In re Intl Horizons. Inc.), 689 F.2d 996, 1001 02 (Ilth Cir.1982) (holding that an order compelling production of allegedly p leged material is immediately appealable because "t ilege-holder has no power to compel the custodi crial to risk a contempt citation for his re to comply" (internal quotation marks omitted) . U.S. Fid ct Guar. Co.. 224 F.2d 158, 16 h Cir.1955) (exercising interlocutory jurisdi citing Perlman in a civil action to recover r breach of a bond against a surety comp re "denial of the privilege could [not] be revi either from the final judgment or from rder"). argue that we should not extend Perlman d an intervenor's appeal of a grand jury subpoena, e decline to draw an arbitrary line. The victims' rgument has an ipse dixit quality that is, because our Court has never before applied the Perlman doctrine outside of the grand jury context, we should not do so now. But we must ask instead whether applying the doctrine here makes sense. The logic of the Perlman doctrine applies with equal force in this appeal. Like a claimant objecting to a grand jury subpoena cannot challenge an indictment to remedy the disclosure of his privileged information, the intervenors cannot challenge a final judgment in this proceeding to remedy the disclosure of their plea negotiations. And the victims' petition, like a grand jury proceeding, is ancillary to a criminal investigation. The rights and remedies provided by the Act arise in a criminal prosecution and affect how the United States prosecutes that action. See 18 U.S.C. § 3771(a), (d). The victims argue that Epstein has made himself an ordinary litigant through his intervention, but we disagree. The district court has allowed Epstein's attorneys to intervene only to contest the disclosure of their correspondence, and the district court has granted Epstein limited intervention to challenge only the disclosure
or his attorneys' correspondence and any remedy that involves the non-prosecution agreement. Epstein's only opportunity to challenge the disclosure order is now because there will not be an adverse judgment against him or his attorneys. The district court instead will enter any judgment against either the victims or the United States. And, even if the victims succeed in their petition to rescind the non-prosecution agreement, Epstein can challenge only that remedy, not the judgment against the United States. The victims intend to use the correspondence \*1006 from Epstein's attorneys to prove that the United States violated the Act, which is an issue separate from the kind of relief necessary to remedy that violation. And it is all the more likely that the district court would fashion a remedy that does not involve the non-prosecution agreement, if the district court were to conclude that rescission is unavailable, which might then bar an appeal by Epstein of that remedy.
The intervenors claim a privilege, and only claimants of a privilege may appeal under the Perlman doctrine. In re Grand Jury Proceedings, 832 F.2d at 558 59. Contrary to the victims' argument, jurisdiction under the Perlman doctrine does not rise or fall with the merits of an appellant's underlying claim for relief. See, e.g., id at 55 60 (permitting an interlocutory appeal based on Perin but holding that "we fmd that the privilege appellants is without a basis in Florida la appellants "have no privilege of nondisclo law"); v. City of Memphis, 423 F Cir.2005) ("[Perlman] jurisdiction does validity of the appellant's under see also, e.g., Perlman, 247 U.S. a (reviewing Perlman's clai n int finding no violation of by the United Stat litigation). The 'n Rule 410, Amendment well as a new co (6th d on the claims for relief."); 38 S.Ct. at 420 tory appeal, but h Amendment in later use ibRs made public in previous claim a privilege based on oduct privilege, and the Sixth to effective assistance of counsel as on-law privilege for plea negotiations. These claims of privilege, however tenuous, are sufficient to establish jurisdiction under Perlman.
Absent an interlocutory appeal, the intervenors would be left with no recourse to appeal the disclosure order. The intervenors cannot defy the disclosure order and risk a contempt citation because the order is directed at the United States, which has expressed an intent to comply with the order. The United States is a disinterested party because it does not purport to hold the privilege claimed by the intervenors. Even if the United States earlier shared the common goal of resolving the criminal investigation quickly and without a federal indictment, any interest of the United States in asserting a privilege for plea negotiations dissipated when Epstein disclosed the correspondence written by the United States to the victims in the civil suit.
The intervenors are also likely unable to pursue their claims through the remaining "estab ed mechanisms for \[immediate) appellate review." ohawk, 558 U.S. at 112, 130 S.Ct. at 608. Seca a im's petition under the Act arises in a c action, the text of section 1292(b), which ap vil action," renders a certification of this enable. See also In re Grand Jury Proceed .2d at 557 (holding that grand jury proceedin of civil actions for purposes of section 12 nd if the intervenors were to seek a writ of is unlikely that the disclosure order would t t a "judicial usurpation of power or a ci iscretion" or "otherwise work') a manifest ohawk, 558 U.S. at 111, 130 S.Ct. at 607 quotation marks omitted).
101 The victims argue that, even if the logic of the Perlman doctrine applies here, the decision of the Supreme Court in Mohawk forecloses this interlocutory appeal, but they misconstrue both the decision in Mohawk and the Perlman doctrine. Mohawk considered whether the Court had jurisdiction under the collateral-order doctrine, which provides an exception to the general bar of interlocutory appeals if an order "(1) conclusively determines the disputed question; (2) resolves an important \*1007 issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment." id at 105, 130 S.Ct. at 604. In Mohawk, the Supreme Court foreclosed an interlocutory appeal of an order requiring the disclosure of materials protected by the attorney-client privilege because the claimant was a party who could appeal a final judgment. Id at 114, 130 S.Ct. at 609. The Supreme Court explained that an appeal from a final judgment suffices "to protect the rights of litigants and ensure the vitality of the attorneyclient privilege" because "[a]ppellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding fora new trial in which the protected material and its fruits
are excluded from evidence." Id at 109, 130 S.Ct. at 606 07. The Court found unpersuasive that these disclosures may "have implications beyond the case at hand" and ruled that, although imperfect, postjudgment review is sufficient. Id at 108 12, 130 S.Ct. at 606 09. The Court also explained that three traditional routes of immediate review could still afford the claimant of the privilege adequate relief in a civil action: the claimant could ask the district court to certify the appeal of "a controlling question of law," the resolution of which "may materially advance the ultimate termination of the litigation"; the claimant could petition the court of appeals for a writ of mandamus; or the claimant could defy a disclosure order and appeal a sanction for contempt. Id at 110 II, 130 S.Ct. at 607 08 (internal quotation marks omitted). The Supreme Court in Mohawk never cited Perlman nor discussed appeals by claimants of a privilege who are limited intervenors in a proceeding ancillary to a criminal investigation and seek to prevent the disclosure of information held by a disinterested party. See In re Grand Jury, 705 F.3d 133, 146 (3d Cir.2012) ("[T]he Mohawk Court ... did not discuss, mention, or even cite Perlman...."). Understandably so claimants of a privilege under the Perlman doctrine remain "powerless to avert the mischief of (a discovery) order," Perlman, U.S. at 12 13, 38 S.Ct. at 419, because the materials question are held by a disinterested party who "to forgo suffering a contempt citation and favor of disclosure," United States v. Kran 573 (9th Cir.2010). As the Seventh Cir explai about the scope of the Perlman doctrine after oh k, "ropily when the person who asserts a \*vilege is a nonlitigant will an appeal from a final decision equate." Wilson v. =, 621 F.3d 641 3 (7th 'r.2010); see also In re Grand Jury, 705 F. 46 & n.11 (rejecting that Mohawk narrowed n t least in the grand jury context"); Holt r d e ity of Dickson, 641 F.3d 230, 239 (6th Cir i I I A izing that Perlman jurisdiction remains when nonparty asserts a privilege); Krane, 625 F.3d at 572 (nth g that "Perlman and Mohawk are not in tension" when the claimant of a privilege is not a party). But see United States v. Copar Pumice Co., Inc., 714 F.3d 1197, 1207 09 (10th Cir.2013) (holding that jurisdiction under the Perlman doctrine is limited to only the grand jury context, but declining jurisdiction because the privilege holder was also a party to the litigation). And, as we explained above, the intervenors cannot appeal a final judgment against the United States, which leaves
them without an avcnuc to appeal the denial of their claims of privilege.
#### B. The Intervenors' Correspondence Is Not Privileged.
1111 The intervenors argue that the district court erred when it ordered the \*1008 disclosure of the plea negotiations because three privileges protect the correspondence: a privilege under Federal Rule of Evidence 410, the work-product pn ge of attorneys, and a common-law privilege for negotiations in criminal proceedings. We disc o p lege prevents the disclosure of the plea n
)C'
#### I. Federal Rt11e of Uvidence 410 Provides No_PiSJegelor Plea Negotiations.
dcncc 410 does not protect against y of plea negotiations and, even if it early falls outside its protection because a guilty plea and the victims intend to use pondence against the United States, not against ein. Rule 410 "create(s\], in effect, a privilege of he defendant," United States v. Mezzanatio, 513 U.S. 196, 205, 115 S.Ct. 797, 803, 130 L.Ed.2d 697 (1995) (internal quotation marks and alteration omitted), but not a privilege of non-disclosure as the intervenors assert. The text of Rule 410 unambiguously states that the evidence "is not admissible against the defendant who made the plea or participated in the plea discussions" if the "guilty plea ... was later withdrawn" or "did not result in a guilty plea." Fed.R.Evid. 410(a). Rule 410 governs the admissibility of plea negotiations, not the discoverability of them. Moreover, Epstein cannot invoke Rule 410 because he pleaded guilty to state charges based on the same conduct and has not withdrawn those pleas. See, e.g., United States v. 794 F.2d 345, 349 (8th Cir.1986) (admitting guilty plea from state court in federal proceeding). The victims intend to admit the correspondence to prove violations of the Act allegedly committed by the United States, not "against" Epstein. And even if rescission of the non-prosecution agreement abuts Epstein's interests, the purpose of the admission does not change. Rule 410 does not bar disclosure of the correspondence written by the attorney-intervenors.
### 2. The Intervenors Waived Any Work-Product Privilege.
1121 1131 The intervenors next contend that the correspondence falls under the work-product privilege, but the finding of the district court that the intervenors waived any privilege when they voluntarily sent the correspondence to the United States during the plea negotiations is not clearly erroneous. Disclosure of workproduct materials to an adversary waives the workproduct privilege. See, e.g., In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir.1988); In re Doe, 662 F.2d 1073, 1081 82 (4th Cir.1981). Even if it shared the common goal of reaching a quick settlement, the United States was undoubtedly adverse to Epstein during its investigation of him for federal offenses, and the intervenors' disclosure of their work product waived any claim of privilege.
As a last-ditch effort, the intervenors contend that "(ijf more is needed in addition to the plain language of Rule 410 to preclude disclosure of the correspondence to plaintiffs, it can be found in the conjunction of Rule 410, the work-product privilege, and the Sixth Amendment right to the effective assistance of counsel in the p bargaining process," but this novel argument fa As explained above, Rule 410 does not create a and the intervenors waived any work-prod The intervenors concede too that the • nsel under the Sixth Amendment had not t art lttd when the correspondence was exchanged. Se ey v. City of Dade City, Fla, 327 F.3d II 195 (11th Cir.2003) ("[T]he Sixth Amendment right to 1 ordinarily does not arise until there is s al 1009 commitment by the government top e," such as a "formal charge, preliminary hea ail) g, i dictment, information, or arraignment."). The "co unctive" power of three false claims of psjyjlpge does not rescue the correspondence from disci
#### 3. We Decline To Recognize a Common-Law Privilege for Plea Negotiations.
1141 1151 The intervenors also invite us to recognize a common-law privilege for plea negotiations, Fed.R.Evid. 501, but we decline to do so. The intervenors have not established a "compelling justification" to prevent the discovery of plea negotiations in criminal proceedings. In
re MN Horizons, 689 F.2d at 1004. Although Congress empowered the federal courts through Rule 501 to "continue the evolutionary development of testimonial privileges," Trammel v. United States, 445 U.S. 40,47, 100 5.0. 906, 910, 63 L.Ed.2d 186 (1980), we disfavor newly minted privileges, which "contravene the fundamental principle that the public has a right to every man's evidence," Adkins v. Christie, 488 F.3d 1324, 1328 (11th Cir.2007) (quoting Univ. of Pa. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 582, 107 L.Ed.2d 571 (1990)). "Accordingly, there is a presumption gainst privileges which may only be overcome w would achieve a 'public good transcending th rma predominant principle of utilizing all ratio ns for ascertaining truth.' " Id (quoting Tra .S. at 50, 100 S.Ct. at 912).
The Supreme Court flkjQefitified several considerations relevant to a court should recognize an evidentia the needs of the public, whether the privile s in the imperative for confidence and tiary benefit of the denial of the privilege, nsus among the states, Jaffee v. Redmond, 1, 10 15, 116 S.Ct. 1923, 1928 31, 135 L.Ed.2d 996) but none of these considerations weighs in avor of recognizing a new privilege to prevent discovery of the plea negotiations. Although plea negotiations are vital to the functioning of the criminal justice system, a prosecutor and target of a criminal investigation do not enjoy a relationship of confidence and trust when they negotiate. Their adversarial relationship, unlike the confidential relationship of a doctor and patient or attorney and client, warrants no privilege beyond the terms of Rule 410. See Jaffee, 518 U.S. at 10, 116 S.Ct. at 1928. But the victims would enjoy an evidentiary benefit from the disclosure of plea negotiations to prove whether the United States violated their rights under the Act. As for any consensus among the states, the majority of the state statutes the intervenors cite adopted Rule 410 verbatim. Compare, e.g., Fla. Stat. § 90.410 ("Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding."), with Fed.R.Evid. 410.
Even if we were to accept the intervenors' argument that plea negotiations are de facto confidential in criminal practice, that custom alone would not protect them from discovery because Rule 410 militates against the establishment of a new privilege. The Supreme Court has cautioned federal courts to be "especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself." Univ. of Pa., 493 U.S. at 189, 110 S.Ct. at 582. Congress weighed the evidentiary concerns related to criminal plea negotiations when it enacted Rule 410, which enables a defendant to negotiate without fear that the prosecutor will use his statements against him. Rule 410 contemplates that \*1010 plea negotiations should ordinarily be inadmissible against a defendant, but not always. The rule does not bar the admission of plea negotiations, for example, when the defendant pleads guilty, in a proceeding for perjury, or when the defendant introduces the statements so long as they are not selfserving hearsay. If we were to recognize a privilege for plea negotiations, we would upset the balance that Congress
#### Footnotes
Honorable Charlene designation. Honeywell, United States Dialn 814c < 4 for the Middle District of Florida, sitting by
End of Document
struck when it adopted Rule 410. See In re MSTG, Inc., 675 F.3d 1337, 1344 (Fed.Cir.2012) (rejecting a privilege for settlement negotiations because Congress, by enacting Rule 408, "did not take the additional step of protecting settlement negotiations from discovery."). We will not go further than Congress stated was necessary to promote the public good in criminal plea negotiations.
#### IV. CONCLUSION
We AFFIRM the disclosure order \[FT the stay of the order compelling the Unit jczyates disclose the correspondence.
#### AU Citations
cee 749 F.3d 999, c . L. kly Fed. C 1270
O
S 2017 iv mson Reuters. No claim to original U.S. Government Wolics.
# EXHIBIT B
NOT A CERTIFIED COPY
No. 13-12923
# In the United States Court of Appeals for the District of Eleventh Circuit Jane Doe No. 1 and Jane Doe No. 2, A''.--N
ciit s ,-Appellees,
C)
v.
United States of Ameri
Roy Black 141 s,
Defendant,
Intervenors/Appellants.
## JANE DOE NO. 1 AND JANE DOE NO.2'S APPELLEE BRIEF
## Appeal from the United States District Court for the Southern District of Florida
KJ. Edw Paul G. Cassell AFF NG, I l'ill'' 425 North venue, Suite 2 332 South, 1400 East, Room 101 Fort La orida 33301 Salt Lake City, Utah 84112-0300 Telephon 9 524-2820 Telephone (801) 585-5202 Facsimile ( ) 524-2822 Facsimile (801) 581-6897 E-mail: bmd@pathtojustice.com E-mail: cassellp(glaw.utah.edu
Si. QUINNEY COLLEGE OF LAW & EHRMAN, P.L. AT THE UNIV. OF UTAH
Counsel for Plaintiffs/Appellees Jane Doe No. I and Jane Doe No. 2
## CERTIFICATE OF INTERESTED PERSONS
Pursuant to 11th Cir. R. 26.1, Jane Doe No. 1 and Jane Doe No. 2, through undersigned counsel, hereby certifies that the following persons have an interest in the outcome of this case:
- 1. Marra, The Honorable Kenneth ,Cialik'
- 2. Acosta, R. Alexander
- 3. Black, Roy C
- 4. Cassell, Paul G.
- 5. J.
- 7. Ferrer, Wifredo A. ActS
- 6. Epstein, Jeffrey N ---
- 8. Howell, Jay
- 9. Lee, Dexter
- 10. Lefkowiklyr ir
- 11. Perc cZe
- 12. rt. Bruce
- 13. Eduardo I.
- 14. Sloman, Jeffrey
- 15. Villafafia, A.
- 16. Weinberg,
Q
iS C) )
17. Doe No. 1, Jane
01. Doe No. 2, Jane
Note: As they have in the court below, as well as in parallel civil court proceedings, Jane Doe #1 and Jane Doe #2 proceed by way of pseudonym as victims of child sexual assault.
i
## STATEMENT REGARDING ORAL ARGUMENT
Appellees Jane Doe No. 1 and Jane Doe No. 2 request oral argument in this case to clarify the factual record.
A Cos
## TABLE OF CONTENTS
## Contents
| TABLE OF CONTENTS..... | iv |
| ------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --- |
| TABLE OF AUTHORITIES ..... | vi |
| STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION..... | 1 |
| STATEMENT OF THE CASE AND STATEMENT OF FACTS ..... | 1 |
| standard of review ..... | 10 |
| SUMMARY OF THE ARGUMENT ..... | 12 |
| Argument..... | 13 |
| I. EPSTEIN HAS FAILED TO DEVELOP AN EVIDENTIARY RECORD IN THE DISTRICT COURT THAT HE HAS ANY INTEREST IN THE CONFIDENTIALITY OF THE CORRESPONDENCE..... | 15 |
| II. THE CORRESPONDENCE BETWEEN THE GOVERNMENT AND EPSTEIN IS NOT PROTECTED FROM DISCOVERY BY FEDERAL RULE OF EVIDENCE 410 OR BY THE WORK PRODUCT DOCTRINE..... | 19 |
| A. RULE 410 DOES NOT APPLY IN THIS CASE BECAUSE THE PLEA DISCUSSIONS LEAD TO A GUILTY PLEA..... | 19 |
| B. THE DISTRICT COURT'S FACTUAL FINDING THAT SIGNIFICANT PARTS OF THE CORRESPONDENCE CONCERNED SUBJECTS OTHER THAN PLEA NEGOTIATIONS IS NOT CLEARLY ERRONEOUS. .... | 25 |
- C. RULE 410 DOES NOT APPLY HERE BECAUSE THE VICTIMS CAN USE THE CORRESPONDENCE AGAINST THE GOVERNMENT. 29
- D. RULE 410 DOES NOT BAR DISCOVERY OF THE CORRESPONDENCE 31
- E. THE WORK PRODUCT DOCTRINE DOES NOT APPLY TO CORRESPONDENCE WITH AN ADVERSARY. 35
- III. THE DISTRICT COURT PROPERLY CONCL THAT CORRESPONDENCE BETWEEN THE GOVERNMENT AND EPSTEIN IS NOT PROThCTED FROM DISCOVERY BY SOME KIND O MMON LAW" PLEA BARGAINING PRIVIL 39
- A. THE COURTS CANNOT C "COMMON LAW" PRIVILEGE TH ES THE LIMITATIONS OF AND THE STATUTORY CO OF THE CRIME VICTIMS' RIG 39
- B. NO "CO PRIVILEGE FOR PLEA BARG II G I STS. 41
- IV. THIS CO OES NOT POSSESS JURISDICTION OVER AN OCUTORY DISCOVERY DISPUTED. 46 CONCLUS 49
## TABLE OF AUTHORITIES
## CASES
| Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) | 13, 18, 19 |
| ------------------------------------------------------------------ | -------------------------------------------------------- |
| (M.D.N.C. 1989) | 25 |
| Cir. 2001) | 33 |
| Chrysler Motors Corp. Overnight Evaluation Program Litigation, 860 | 844, |
| 846 (8th Cir. 1988) | 42, 43 |
| Columbia/HCA Healthcare Corp. Billing Practices Litigation, 2' | 289, |
| 302 (6th Cir. 2002) | 43 |
| Cox v. Administrator U.S. Steel & Carnie, 17 F.3d 1386, 1 | 2 Cir. 1994) 45 |
| Dinnan, 661 F.2d 426 (5th Cir.1981)). | 47 |
| El-Ad Residences at Mirarmar Condo. Ass'n, Inc. v. | awley Ins. Co., 716 F |
| Supp. 2d 1257, 1262 (S.D. Fla. 2010)) | 21 |
| Folb v. Motion Picture Ind. Pension & Health | .Supp.2d 1164, 1175 |
| (C.D. Cal. 1998) | 53 |
| Frontier Ref., Inc. v. Gorman-Rupp Co., | .3d 695, 704 (10th Cir. 1998) |
| United Methodist Church v. | heyenne, 451 F.3d 643, 668 (10th Cir. |
| 2005) | 43 |
| Grand Jury Proceedings, No. | F.3d 1262, 1266 (11th Cir. 2013) 30 |
| v. Avis Rent A Cgt S | Inc., 916 F.Supp. 256, 259 (W.D.N.Y.,1996) |
| International Horizon | Inc. v. The Committee of Unsecured Creditors, 689 F.2d |
| 996, 1004 (11th Cir. | 12, 47, |
| John Doe, 662 d 10Y3, 1080 (4th Cir. 1981) | |
| Kenna, 435 1, 1013 (9th Cir. 2006) | |
| Lampley Ci a | Dade City, 327 F.3d 1186, 1195 (11th Cir. 2003) 49 |
| Miccos | e of Indians of Florida v. United States, 516 F.3d 1235, |
| 12 Cir. 2008) | 12, 17 |
| Mohawk dustries, Inc. v. Carpenter, 558 U.S. 100 (2009) | 14 |
| MSTG, Inc., 675 F.3d 1337 (7th Cir. 2012) | 11, 37, 53 |
| Padilla v. Kentucky, 130 S.C.t 1473, 1485 (2010). | 49 |
| Sealed Case, 676 F.2d 793, 824-25 (D.C. Cir. 1982) | 43 |
| 740 754 C. Cir. 2006) | 21 |
| ---------------------------------------------------------------------- | -------------------------------------- |
| v. Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007) | 34 |
| United States v. Barrow, 400 F.3d 109, 116 (2d Cir. 2005) | 23, 35 |
| United States v. Biaggi, 909 F.2d 662, 691 (2d Cir. 1990) | 35 |
| United States v. Chapman, 954 F.2d 1352, 1360 (7th Cir. 1992) | 28 |
| United States v. Edehnann, 458 FI.3d 791, 804-06 (8th Cir. 2006) | 29 |
| United States v. Hare 49 F.3d 447, 450 (8th Cir. 1995) | 30 |
| United States v. 794 F.2d 345, 349 (8th Cir.1986) | 28 |
| United States v. Kerik, 531 F.Supp.2d 610, 618 (S.D.N.Y. 2008 | 25, 28 |
| United States v. Krane, 625 F.3d 568 (9th Cir. 2010) | 54 |
| United States v. Massachusetts Institute of Technology, 12 | (1st Cir. |
| 1997) | 43 |
| United States v. Merrill, 685 F.3d 1002 (11th Cir. 20 | 29, 32 |
| United States v. Nixon, 418 U.S. 683 (1974) | 47 |
| United States v. Paden, 908 F.2d 1229, 1235 (5 | 0) 24 |
| United States v. Ruhkowsi, 814 F.2d 594, 59 | ir. 1987) 24, 38 |
| University of Pennsylvania v. E.E.O.C., 4 | 82, 189 (1990) 47 |
| Weatherford v. Bursey, 429 U.S. 545, | 49 |
| Westinghouse Electric Corp. v. Repu li | f t e Philippines, 951 F.2d 1414, 1429 |
| (3d Cir. 1991) | 43 |
| World Holdings, LLC v. Fede a blic of Germany, 701 F.3d 641, 649 (11th | |
| Cir. 2012). | 11 |
## STATUTES
## OTHER ACOIITIES
| 150 C N . S4261 (Apr. 22, 2004) | 15 |
| ------------------------------- | --------------------------------------------------------------------- |
| Crime | ctims' Rights Act, Pub. L. 108-405, Title I, § 102(a), 118 Stat. 2261 |
| (2004), | 15 |
| 41 (2012) | 51 |
C.)
## RULES
| Fed. R. Civ. Evid. 408..... | 11, 37, 53 |
| ------------------------------ | ---------- |
| Fed. R. Civ. P. 26(b)(3),..... | 42 |
| Fed. R. Crim. P. 11(f) | 9 |
| ---------------------- | ------ |
| Fed. R. Evid. 410 | passim |
| Fed.R.Evid. 402 | 23 |
| Local Rule 16.2(G)(2) | 52 |
| Local Rule 26.1(g). | 17 |
| Rule 501 | 48 |
A, g
## STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
Appellees Jane Doe No. 1 and Jane Doe No. 2 (hereinafter "the victims") have a pending motion to dismiss for lack of subject matter jurisdiction. For the reasons articulated in that motion, the Court lacks jurisdiction over this appeal.
## STATEMENT OF THE CASE AND STATEMENT OF FA
In the district court, the victims have alleged the followin 1 It which the district court properly assumed to be true in ruling on al discovery motion of appellants Roy Black, Weinberg, a e pstein (hereinafter collectively referred to as "Epstein") to disclosure of certain correspondence.'
## The Epstein Investigatio SI .,the Non-Prosecution Agreement
In 2006, the Federal B x?? vestigation opened an investigation into allegations that Epstein een sexually abusing underage girls over the C) proceeding five yea e United States Attorney's Office for the Southern District of Fl accepted the case for prosecution, and in June, 2007 and August, Qe FBI issued victim notification letters to the appellees, Jane Doe No. 1 an Jane Doe No.2.
Extensive plea discussions then ensued between the U.S. Attorney's Office
All of the following facts are taken from the District Court's recent decision, denying the Government's Motion to Dismiss, District Court Docket Entry (DE) 189, the Victims' Motion for Summary Judgment (DE 48), an affidavit supporting discovery (DE 225-1), and related orders.
and Epstein, a politically-connected billionaire represented by a battery of highpowered attorneys. On September 24, 2007, the U.S. Attorney's Office entered into a non-prosecution agreement ("NPA") with Epstein, in which it agreed not to file any federal charges against Epstein in exchange for Epstein pleading guilty to two minor state offenses. 2 The Office entered into thee~i without t first conferring with victims, and without alerting them to AS tence of the agreement, either before or promptly after the fact — faq :5 e Government apparently concedes.
The U.S. Attorney's Office then kept agreement for roughly nine months, g "no mention of the NPA in intervening correspondence and verb I unications between the victims, the FBI, and the local United Sta t ey s Office. See DE 48 at 7-20. The postagreement deception incl es uary 10, 2008, letters from the U.S. Attorney's Office to both Jane o. 1 and Jane Doe No. 2 advising that the case "is currently un tigation" and that "it can be a lengthy process and we request tinned patience while we conduct a thorough investigation." Id. at 16. letter (other letters like it up through at least May 2008) did not inform the victims that Epstein had months earlier already entered into a non-prosecution agreement regarding the crimes committed against them, a fact that Epstein AC2 in the dark about the
2 The charges were solicitation of prostitution and procurement of minors to engage in prostitution, in violation of Fla. Stat. §§796.07 and 796.03.
concedes. See Appellant's (Appt's) Br. at 2 ("In September, 2007, . . . Jeffrey Epstein entered into a non-prosecution agreement with the Government."). In addition, the U.S. Attorney's Office sent a letter to the victims' counsel in June, 2008, asking them to submit a letter expressing on why federal charges should be filed against Epstein — without disclosing that the U.S. Attorney ice had already entered into the NPA blocking the filing of such charg
This post-agreement deception was done specif the behest of Epstein. The victims have specifically alleged that .S. Attorney's Office pushed by Epstein — wanted the non-prosec eement kept from public view because of the intense public cc at would have resulted from allowing a politically-connected bil who had sexually abused more than 30 minor girls to escape fro d 1 prosecution with only a county court jail sentence. DE 48 at 11. e v funs have also alleged that the Office wanted the agreement concealed time because of the possibility that the victims could have object t t e agreement in court and perhaps convinced the judge review' greement not to accept it. Id. It is undisputed that extensive negotiati s took place between Epstein and prosecutors regarding crime victim notifications — negotiations that lead to the Government not providing notifications to Jane Doe No. 1 and Jane Doe No. 2. Id. at 13-14; see also DE 225-1 at 50. The Government has further admitted that its negotiations with
defense counsel regarding victim notifications was not standard practice. DE 225-1 at 50.
Ultimately, on June 27, 2008, the Assistant United States Attorney assigned to the Epstein case contacted victims' counsel to advise that Epstein was scheduled to plead guilty to certain state court charges on Ju 0, 2008, again without mentioning that the anticipated plea in the state c as the result of the pre-existing agreement with the federal authorities. t 19-20.
On June 30, 2008, Epstein pled guilty to the law charges. Jane Doe No. 1 and Jane Doe No. 2 did not attend th j ing because they did not know about the existence of the NPA; 4 d They know that this guilty plea would block the filing of federal ch ' r Epstein's crimes against them. Id. Af at 19.
On July 3, 2008, 'cti 4 4\*1 ' counsel sent a letter to the U.S. Attorney's Office advising that!We' Doe No. 1 wished to see federal charges brought against Epst course, when counsel drafted that letter, he did not know that E s entered into a non-prosecution agreement barring such charges ten mont earlier. Id. at 20.
## Procedural History Surrounding the Victims' CVRA Petition
The victims' counsel began to hear rumors that Epstein was working out some sort of an arrangement with the U.S. Attorney's Office, an arrangement that was not be disclosed to the victims. Accordingly, on July 7, 2008, Jane Doe No. 1 filed an "emergency" petition under the Crime Victims' Rights Act, 18 U.S.C. § 3771, contending that Epstein was currently involved in plea negotiations with the U.S. Attorney's Office which "may likely result in a disposition of the charges in the next several days." CVRA Petitio E 1 at 3. Arguing that they had been wrongfully excluded from thos 14 sions, Jane Doe No. 1 asserted a violation of her CVRA rights o r with federal prosecutors; to be treated with fairness; to receive c ' notice of relevant court proceedings and to receive information about h 18 U.S.C. § 3771(a)). to restitution. Id. (citing
On July 9, 2008, the governm t ts response, disclaiming application of the CVRA to pre-indi egotiations with prospective defendants. Alternatively, the governi i contended it did use its "best efforts" to comply with the CVRA' ents in its dealings with Jane Doe No. 1. DE 13.
On J 08, the District Court held a hearing on the initial petition. D E 1 5. the course of that hearing, the Court allowed Jane Doe No. 2 to be added as an additional victim. The Government acknowledged that both Jane Doe No. 1 and Jane Doe No. 2 met the CVRA's definition of "crime victims."
During that hearing, for the first time victims' counsel began to learn that
the Government and Epstein had concluded a NPA months earlier. See DE 15 at 24. The District Court then inquired, in view of the fact that the agreement was at least nine months old, whether the proceedings could still be regarded as an emergency. Having just learned that the NPA was executed months earlier, victim's counsel agreed that he could see no reason why the mattered to be handled on an emergency basis. DE 15 at 25.
The District Court indicated that the case woul development, and the Government and victims' c sel 0C9 stipulated set of facts. Later, on August 21, District Court provided a copy of the NPA to the victims. DE 26. agreed to reach a
Over the following months (th S yitims attempted (unsuccessfully) to negotiate an agreed statemen with the Government about how the NPA was negotiated without pr t also pursued collate or"vil claims against Epstein, during which they also learned facts le t to their CVRA suit. For example, Epstein produced to the victims' significant parts of the correspondence concerning the NPA. The victims u tely successfully settled their civil cases with Epstein. them an opportunity to confer regarding it. They
The victims, however, were unsuccessful in reaching any agreement with the Government regarding the CVRA case. Because the Government refused to reach any stipulated set of facts, on March 21, 2011, the victims filed a Motion for Finding of Violations of the CVRA and a supporting statement of facts. DE 48. They also filed a motion to use the correspondence that they had previously received from Epstein in the civil case in their CVRA case. DE 51.
## Procedural History Regarding Releasing the Correspondence
On April 7, 2011, two of Epstein's numerous criminal defens a orneys appellants Roy Black and Weinberg — filed a Q,for limited intervention in the case, arguing that their right to con tiality in the correspondence would be violated if the victims' re allowed to use the correspondence. DE 56. Jeffrey Epstein filed his own motion to intervene to object to release of the co c . DE 93. Later, Epstein and his attorneys filed a motion for protectiv asking the Court to bar release of the correspondence. DE 160. int, however, did Epstein or his attorneys provide any affidavits o er factual information establishing that the t correspondence was dential. Nor did they provide a privilege log or other description o terials in question.
e intervention motions were pending, on September 26, 2011, the DistrictCourt entered its order partially granting the victims' motion for a finding of violations of the CVRA, recognizing that the CVRA can apply before formal charges are filed against an accused. DE 99. The Court, however, denied the victims' motion to have their facts accepted, instead deferring ruling on the
merits of the victims' claims pending development of a full factual record. The Court also authorized the victims to conduct limited discovery. DE 99 at 11. The victims quickly requested discovery from the Government, including correspondence between the Government and Epstein's attorneys regarding the non-prosecution agreement.
On November 8, 2011, the day on which the Gove 7Q was due to produce discovery, it instead moved to dismiss the ent' proceeding for alleged lack of subject matter jurisdiction (DE 119), ccessfully sought a stay of discovery (DE 121, 123). The victims file nse. DE 127.
On March 29, 2012, the district ed to the motions to intervene, granting both Epstein's motion to in E 159) and his attorneys' motion to intervene (DE 158). The j e hasized, however, that the question of the merits of the intervenors' ns remained to be determined.
After additionatoe eedings, on June 18, 2013, the district court denied Epstein's elf ar release of the plea bargain correspondence. DE 188. The District gan by noting that the same arguments that Epstein was raising had previ ly been rejected in one of the victims' parallel federal civil lawsuits, and it saw "no reason to revisit that ruling here." Id. at 3-4. The District Court then rejected Epstein's argument that the correspondence was protected under Fed. R. Evid. 410, because that Rule by its own terms does not apply in situations where a defendant later pleads guilty. The District Court next rejected Epstein's argument that it should invent a new "plea negotiations" privilege that would apply to the correspondence, explaining that "Congress has already addressed the competing policy interests raised by plea discussion evidence with the passage of the pleastatement rules found at Fed. R. Crim. P. 11(0 and Fed. R. Evid 4 0, which generally prohibits admission at trial of a defendant's statement during plea discussions, without carving out any special privilege rel lb ea discussion materials. Considering the Congressional forbear n this issue — and the presumptively public nature of plea agreem is District —, this court declines the intervenors' invitation to ule 410 by crafting a federal common law privilege for plea discus DE 188 at 7-8.
The next day, the Dis entered a detailed written opinion denying the Government's motion Oo • miss. DE 189. After carefully reviewing the t CVRA's remedial pi •ons, the Court explained that "the CVRA is properly interpreted to "ze the rescission or \`re-opening' of a prosecutorial agreement — inclu -prosecution agreement — reached in violation of the prosecutor's conferral ligation under the statute." DE 189 at 7. In light of this conclusion, the District Court explained that it was then "obligated to decide whether, as crime victims, petitioners have asserted valid reasons why the court should vacate or reopen the non-prosecution agreement reached between Epstein and the \[U.S. denied the motion to stay, explaining: A On June 27, 2013, Epstein and his attorneys filed a notice of ap a from the District Court's denial of efforts of block release of S ; lea e bargain correspondence. DE's 194-96. Epstein also filed for a s ng appeal (DE 193), and the victims filed a response in oppositionV 198). The district court
Attorney's Office\]. Whether the evidentiary proofs will entitle them to that relief is a question properly reserved for determination upon a fully developed evidentiary record." DE 189 at 11-12. The Court then ordered the Government to begin to produce the requested discovery. DE 190.
In this case, intervenors have e 4emonstrated a probable likelihood of success on the m ppeal, see e.g. In re MSTG, Inc., 675 F.3d 1337 (7th Cir. ejecting request for recognition of new privilege for s discussions; finding need for confidence and trust sufficient reason to create a new privilege, and notin ngress, in enacting Fed. R. Civ. Evid. 408, governing a of statements made during "compromise negotiations, " did n ake additional step of protecting settlement negotiations discovery); In re Qwest Communications Internati 1, In ., 450 F.3d 1179 (10th Cir. 2006) (noting circuit courts' a nanimous rejection of selective waiver concept as appl orney-client and work-product privileges), nor that the equities weighs heavily in favor of granting a stay.
## STANDARD OF REVIEW
1. The victims first present the issue that Epstein has failed to develop a factual record to support his claim that the correspondence in question is confidential. This issue is a purely factual one, which this Court would review by giving due deference issue to the District Court in managing discovery matters. World Holdings, LLC v. Federal Republic of Germany, 701 F.3d 641, 649 (11th Cir. 2012).
1. The District Court rejected Epstein's claim that corresponAgg 1: by his 41 e attorneys was protected from discovery by Rule 410 for two rea 0first, because it was not general discussions of leniency and statemen min the hope of avoiding a federal indictment rather than plea nuns; and, second, that it 4i involved negotiations for charges to which Ep 1 ' ately plead guilty. These are both factual findings, for which revi i ted to determining whether the district court "had an adequate fac a is for the decision it rendered" and whether the decision was c neous." Miccosukee Tribe of Indians of Florida v. United States, 5 CF. ) 1235, 1244 (11th Cir. 2008).
1. Epstein ask IZIty' Court to overturn the District Court's decision not to recognize a vilege for plea bargaining. This Court has held that "a new privileg only be recognized where there is a \`compelling justification." Internati al Horizons, Inc. v. The Committee of Unsecured Creditors, 689 F.2d 996, 1004 (11th Cir.1982) (internal quotation omitted). The issue is thus whether the District Court erred in finding no such compelling justification.
## SUMMARY OF THE ARGUMENT
Appellants Jeffrey Epstein and his attorneys argue that they have some sort of interest in the confidentiality of correspondence that they sent to government prosecutors — prosecutors who were attempting convict their client of sex offenses. The district court properly rejected their argument and this Court shoo ffirm the decision below for three reasons.
1. Epstein never developed any evidentiary record trict court that the correspondence in question was confidential. rdltsgly, he has simply failed to establish the required factual record to t n to challenge the District Court's conclusions. Bogle v. McClure ak F d 1347, 1358 (11th Cir. 2003) (noting privilege holder not "excus 4 11 (ineeting [his] burden of proving the communication confidential he [applicable] privilege").
1. Rule 410 of e F eral Rules of Evidence does not apply to bar discovery of the co dence, because (a) the Rule does not apply where a criminal defent pleads guilty; (b) the District Court's factual finding that the correspo i as not primarily plea negotiations was not clearly erroneous; (c) entirely from whether they can use the correspondence against Epstein, the victims can discover the correspondence to use against the Government; (d) Rule 410 does not, in any event, even apply to the early discovery phase of litigation; (e)
no work product privilege exists over correspondence that was exchanged by Epstein with his adversaries.
3. This Court should not create a new privilege for plea bargaining in this case, because Rule 410 provides sufficient protection for such negotiations and the Court should not undermine the Crime Victims' Rights Act.
AA' This Court should also dismiss Epstein's appeal because jurisdiction over an interlocutory appeal of a discovery dispute.
## ARGUMENT
In the District Court, the victims have Epstein and the Government agreed to 'non- \\ further agreed to conceal it from the lfor many months. The District Court has ordered the Goverment \3Epstein's brief to this Court does now contain several quotations from the oral arguments of his attorney's below. See, e.g., Appt's Br. at 19. The arguments do not provide proof of the factual propositions that would be required to sustain his privilege claims. And, more fundamentally, arguments are not evidence.
However, upon intervention, Movant Epstein will have to meet his burden of establishing that he was in fact represented by specific attorneys, and that they had privileged communications in the course of that attorney-client relationship that have been or are at the risk of, unauthorized disclosure. Movant Epstein bears the burden of establishing that the communications he seeks to withhold from disclosure fall within the attorney-client or other privilege. "In meeting this burden, each element of the privilege must be affirmatively demonstrated, and the party claiming privileg st provide the court with evidence that demonstrates the waste so privilege, which often is accomplished by affidavit."
DE 98 at 3-4 (emphasis added) (quoting El-Ad Resident armar Condo. Ass 'n, Inc. v. Mt. Hawley Ins. Co., 716 F. Supp. 2dc) 1262 (S.D. Fla. 2010)). Rather than heed that specific warning from rnment that he needed to provide "evidence that demonstrates tJ 4ist cc of the privilege," Epstein decided to provide nothing at all .4
The victims, too, spect ed to the District Court that, for example, "Epstein must present ev ncp that he will be injured if the victims read the correspondence." warning, Eps ted not to heed the warning given by the victims. D ?Iflrat 11 (emphasis added). As with the Government's
In othing exists in the record that would allow Epstein to carry his burden o roof that the correspondence was confidential. That failure is fatal to
At various points in his brief, Epstein claims that the Government supports his appeal. But the Government has not chosen to join this appeal and, to the contrary, has indicated to the District Court that is has collected all of the materials at issue and stands ready to deliver them to victims as soon as this Court permits it. See, e.g., DE 216-1 at 9 (noting correspondence with Epstein's defense counsel that will be produced to opposing counsel upon lifting of stay).
appeal. See, e.g., In re Subpoena Duces Tecum Issued to Commodity Futures Trading Com'n, 439 F.3d 740, 754 (D.C. Cir. 2006) (rejecting privilege claim where appellant "failed to meet its burden of demonstrating that the disputed subpoenaed documents were created for the purpose of settlement discussions and therefore would merit protection under any federal settlement privileg . .").
## II. THE CORRESPONDENCE BETWE THE GOVERNMENT AND EPSTEIN IS NOT CTED FROM DISCOVERY BY FEDERAL R ENCE 410 OR BY THE WORK PRODUCT DOC
Epstein's lead argument is that the co nce is protected from discovery by Federal Rule of Evidence 41 the work product doctrine. Appt's Br. at 14-24. He is situp ( t, as no protection exists for correspondence he voluntarily se fedc 1 prosecutors.
## A. RULE NOT APPLY IN THIS CASE BECAUSE THE SCUSSIONS LEAD TO A GUILTY PLEA.
Rule 410 is fun 7, entally inapplicable here because it is designed to protect defendants w lyS re c naked with a presumption of innocence, not those (like convicte o ender Epstein) who have plead guilty to a crime. Because "Rule 410 is ception to the general principle that all relevant evidence is admissible at trial, see Fed.R.Evid. 402, its limitations are not to be read broadly." United States v. Barrow, 400 F.3d 109, 116 (2d Cir. 2005). Here Epstein pled guilty to
state sex offenses as part of his far-ranging plea discussions with federal prosecutors, so the rule does not apply.
While Epstein repeatedly argues that the correspondence falls within the "heartland" of Rule 410 (Appt's Br. at 7), he never argues that it falls within the text of the Rule. Rule 410 provides in its entirety:
## Rule 410. Pleas, Plea Discussions, and Related Statement
(a) Prohibited Uses. In a civil or criminal case, ev f the following is not admissible against the defendant wjl the plea or participated in the plea discussions:
- (1) a guilty plea that was later withdrawn;
- (2) a nolo contendere plea;
- (3) a statement made during a proc either of those pleas under Federal Rule of Criminal P for a comparable state procedure; or
- (4) a statement made durin cussions with an attorney for the prosecuting authori iscussions did not result in a guilty plea or they res ater-withdrawn guilty plea.
(b) Exceptions. The co t admit a statement described in Rule 410(a)(3) or (4);
- (1) in any proce n ifi which another statement made during the same plea r plea iscussions has been introduced, if in fairness the stateme ht to be considered together, or
- (2) i criminal proceeding for perjury or false statement, if the de ade the statement under oath, on the record, and with present.
Althougpstein has not made a factual record about what the correspondence involves (see Part I, supra), he appears to argue that the correspondence falls within Rule 410(4), italicized above. But the plain language of that provision is narrowly written to cover only a "statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of
guilty." Fed. R. Evid. 410(4) (emphasis added). Obviously, a prerequisite to applying the rule is a case where no plea of guilty "resulted" from the discussions. See, e.g., United States v. Paden, 908 F.2d 1229, 1235 (5th Cir. 1990) (statements made during negotiations that resulted in a final plea of guilty not protected under Rule 410), cert. denied, 498 U.S. 1039 (1991); United States v. Ruhko Azki 814 , F.2d 594, 596 (11th Cir. 1987) (discussing application of the rule i'u. ations where "plea negotiations ... broke down" and case went to trial).5
Here, although Epstein evades this central in his brief, his plea discussions undeniably did result in a plea of •n this point, the District Court made a specific finding of fact: ' unications between Epstein's counsel and federal prosecutors at iss t e cs re, ultimately did result in entry of a plea
5 Cases such as these also that Epstein's protestations that the District Court's decision to releas p e cussion is somehow unprecedented, see, e.g., Appt's Br. at 10, are simp e. Courts sometimes find Rule 410 applies and sometimes that it do ot. n fact, in earlier civil litigation against Epstein, the district court ordered correspondence produced to one of Epstein's sexual assault victims his Rule 410 argument. DE 226, Jane Doe #2 v. Jeffrey Epstein, No 0893-MARRA (S.D. Fla. Jan.5, 2011). Like that decision, the decision 1 in this case is simply a routine discovery determination that the con-es n at issue falls outside the protections of Rule 410. Moreover, courts routine override even opinion work product claims in situations where the attorney conduct is at issue in the case. 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). Of course, in this case the conduct prosecutors and Epstein in reaching the secret non-prosecution agreement is the central element of the case. Indeed, the only thing that is unprecedented about this case is the fact that Epstein and prosecutors choose to negotiate about how to keep crime victims from learning what was happening rather than to comply with the Crime Victims' Rights Act.
of guilty by Epstein — to specific state charges — thereby removing the statements from the narrow orbit of \`statement[s] made during plea discussions . . . if the discussions did not result in a guilty plea . . . " which are inadmissible in proceedings against the defendant making them under Rule 410." DE 188 at 4-5 (emphasis in original). That finding of fact can be overturned only s clearly erroneous. It is not.
AS'
Again, while Epstein bears the burden of proof on h ri e claim, he has failed to develop any factual record in support of \*m. See Part I, supra. More specifically, he cannot deny that the non- t on agreement that is at the heart of this case specifically includes a p n or Epstein to plead guilty to two state offenses. The NPA recites tha seeks to resolve globally his state and federal criminal liability tem understands and acknowledges that, in exchange for the benefits d by this agreement, he agrees to comply with its terms, including und ar • g certain actions with the State Attorney's Office." NPA at 2 (e h ad ded).6 The NPA goes on to specifically provide that, in exchang oiding federal prosecution, Epstein will plead guilty to two state offenses:
Epstein shall plead guilty . . . to the Indictment as currently pending against him in the 15th Judicial Circuit in and for Palm Beach County (Case No. 2006-cf-009495AXXXMB) charging one (1) count of solicitation of prostitution, in violation of Fl. Stat. § 796.07. In
6For the convenience of the Court, a copy of the NPA is attached to this brief.
addition, Epstein shall plead guilty to an Information filed by the States Attorney's Office charging Epstein with an offense that requires him to register as a sex offender, that is, the solicitation of minors to engage in prostitution, in violation of Florida Statutes Section 796.03.
Id. at 3 (emphases added). And, as the District Court specifically found, Epstein ultimately did plead guilty to those two Florida offenses — and did s uant to the "global" agreement as a result of his plea discussions. DE 1 S.
While Epstein does not discuss the specific linkage A between the his non-prosecution for federal offenses in exchan pleading guilty to two state charges, he does contend that Rule 410 to guilty pleas to federal offenses. The plain language of Rule 41 not contain any such limitation, narrowly extending protection only t ations that "did not result in a guilty plea" without requiring that tlr,% to a federal charge.' And such a limitation of the rule to guilty pleas Co 51f eral charges only would be extremely unwieldy, since many criminal chow involve discussions that span multiple jurisdictions
ely flips around this absence of a limitation, contending that if tended to cover situations where defendants pled guilty to state t needed to say so. Appt's Br. at 26. But Congress simply used the plain term "guilty plea" rather than the more cumbersome formulation "guilty plea to a federal, state, or local offense." In the same sentence, Congress also used the broad formulation "prosecuting authority" rather than a narrower, federal formulation such "United States Attorney." Fed. R. Evid. 410(4). Finally, in another part of Rule 410, Congress did see fit to itemize both state and federal proceedings. Fed. It Evid. 410(3). The fact that it chose a broader formulation here makes clear its intention to cover both state and federal pleas in Rule 410(4), as the caselaw holds.
— which is why defendants, such as Epstein, frequently seek a "global" resolution of their criminal liability. In any event, case law makes quite clear that Rule 410 draws no distinction between federal pleas and state pleas. See, e.g., United States v. Chapman, 954 F.2d 1352, 1360 (7th Cir. 1992) (applying rule to discussions over "withdrawn state plea"); United States v. Kerik, 531 F.Supp.2d 6 D.N.Y. 2008) ("Rule 410 applies in federal proceedings to statements connection with prior state pleas"); see also United States v. 345, 349 (8th Cir.1986) (permitting the admission of a guilty ple orn state court in a federal proceeding).
The only substantial argument th t'tit,ei makes is that the "substantive settlement discussions thus revolved 31 federal\] .1 offenses to which Epstein did not ultimately plead guilty pt's Br. at 27. Of course, this is a factual argument about the natu discussions — a factual argument that lacks any record support. erroneous in ing that correspondence involved global plea discussions that "revolv d" not merely Epstein's non-prosecution for federal charges but also, in e hange, his guilty plea to state charges. not shown that the District Court was clearly
## B. THE DISTRICT COURT'S FACTUAL FINDING THAT SIGNIFICANT PARTS OF THE CORRESPONDENCE CONCERNED SUBJECTS OTHER THAN PLEA NEGOTIATIONS IS NOT CLEARLY ERRONEOUS.
As a second reason for denying Epstein's motion to bar release of the correspondence, the District Court made a specific factual finding that significant parts of the correspondence did not involve "plea discussions" Rule 410 but rather general discussions of leniency. Epstein cannot show — that this factual finding is clearly erroneous. t own — and under
As one reason for finding the corresponden District Court noted that "[a]s a thresho discussions' protected under Fed. R. E of leniency and statements mad arguably the content of th vered by Rule 410, the \`statementns during plea o not include general discussions ope of avoiding a federal indictment ndence at issue here." DE 188 at 4. For support, the District Court ' the relevant case law from this Court (as well as from other Cou ; of peals). See DE 188 at 4 (citing United States v. Merrill, 685 F.3d 1O11 Cir. 2012) (statements made to AUSA during meetings were not s made during plea negotiations under Rule 410, where there were no pending charges against defendant when discussions occurred; general discussion of leniency did not transform meeting into plea negotiations)); see also DE 188 at 4 (citing United States v. Edelmann, 458 F.3d 791, 804-06 (8th Cir. 2006); United States v. Hare, 49 F.3d 447, 450 (8th Cir. 1995). This is a factual finding by the
District Court, based on its familiarity with the correspondence. The Court reviews such a finding only to determine whether it is clearly erroneous. See In re Grand Jury Proceedings, No. 4-10, 707 F.3d 1262, 1266 (11th Cir. 2013) (factual determination underlying privilege rulings reviewed only for clear error).
Epstein does not contend that the District Court misun i tood the applicable legal standards. Instead, Epstein launches a fa contending that "the best proof that the communications %ere not merely \`general discussion of leniency' is that they u c 'onably n challenge, resulted in an agreement which settled the federal criminal i of Epstein." Appt's Br. at 24-25. The Court will notice that this 'Sc ment comes unadorned of any citations to the record below. No do t fs because Epstein has simply failed to create any record below. Tht vxh Epstein says it is "unquestionably" true that the communications were 6of e'neral discussions of leniency, the victims would simply respond that indeed in question — because the District Court has specifically tw6ctual finding to the contrary.
moreover, have very specific reasons for raising doubt about whether of the correspondence focused as narrowly on the "plea discussions," that the rule protects. See Fed. R. Evid. 410(4) (extending protection only to "plea discussions"). The victims have made detailed allegations that significant parts of the correspondence deal with Epstein's defense attorneys attempting to improperly
interfere with the Government's required notifications to them under the Crime Victims' Rights Act. For example, the victims have alleged that on November 29, 2007, the U.S. Attorney's Office sent to Jay Leflcowitz, one of Epstein's many defense lawyers, a draft crime victim notification letter which would have explained the NPA to Epstein's multiple victims. DE 48 at 13. The ims have further alleged that because of concerns from Epstein's e attorneys (presumably communicated in writing as part of the corres on at issue here), the U.S. Attorney's Office did not send that propos tim notification letter to victims, but instead sent a misleading left e case was "still under investigation." Id. Whatever may be th \\ Rule 410 protections for "plea discussions," it certainly would not e \8 Epstein has not argued — either in his brief to this Court or in the court below that the correspondence at issue can be separated into documents that involve plea discussions and those that do not. And, of course, he has not provided a privilege log or other basis for making any such a discriminating, document-by-document judgment. Accordingly, the District Court's ruling about the general nature of all the documents must be affirmed.
## C. RULE 410 DOES NOT APPLY HERE BECAUSE THE VICTIMS CAN USE THE CORRESPONDENCE AGAINST THE GOVERNMENT.
Although the District Court did not need to reach them, several other grounds apparent in the record support the ruling below. This Court should affirm on these grounds as well. v. Lighting, Inc., 506 F.34 61 1364 (11th Cir.2007) (judgment below can be affirmed on any ground a Eent from the record ).9
Rule 410 is inapplicable here because it would o, ar admissibility of the correspondence into evidence "against the d who made the plea," Fed. It. Evid. 410 — i.e., against Jeffrey Epst the victims intend initially to obtain and use the correspondence t4u further discovery and to seek relief from the Government. Indeed rfct court's order requiring production of the correspondence is not d To ) Epstein at all — it is directed solely to the Government. DE 19
By its rms, Rule 410 only bars the admission of evidence "against the defe o made the plea." Fed. R. Evid. 410. The purpose underlying this rule to "promote negotiations by permitting defendants to talk to prosecutors without sacrificing their ability to defend themselves if no disposition is reached." United States v. Barrow, 400 F.3d 109, 116 (2d Cir.2005) (emphases added).
9 The victims raised these arguments below, DE 106 at 5-13, but the District Court did not need to consider them.
Thus, the Rule has no application where the discussions are being used not against a defendant but rather against the Government. See, e.g., United States v. Biaggi, 909 F.2d 662, 691 (2d Cir. 1990) (holding that under Rule 410 "plea negotiations are inadmissible \`against the defendant' . . . and it does not necessarily follow that the Government is entitled to a similar shield"). A
Here, the victims intend to use the correspondence to pro ti illy e that the Government violated their CVRA rights.10 Having pro n lation of their rights, they will then seek various remedies agains Government." As they have made clear throughout this litigation, they 1 . ately intend to ask for the Court to impose (among other things) eremedy that will most directly respond to the Government's viola heir rights: invalidation of the nonprosecution agreement so the confer with the Government about the possibility of actually pr ecu i g Epstein for the sex offenses he committed against them. Epstein ers claim that any such use would be a use "against" the defenda n erefore covered by this language in Rule 410. This claim, howeve, that the Rule 410 bars every court action that might ultimately have som collateral, harmful effect on a defendant. But Rule 410 is much more
1° The victims do not believe they stand in an adversarial posture with the Government, as Congress has obligated the Government to use its "best efforts" to protect the CVRA rights of crime victims. 18 U.S.C. § 3771(c)(1).
II A list of the remedies that the victims intend to seek from the Government is found in DE 127 at 13-15.
narrowly drafted — forbidding not uses that may eventually hann the defendant, but instead more narrowly admissibility of plea negotiations into evidence directly "against the defendant" in a "civil or criminal proceeding." Fed. R. Evid. 410.12
In any event, regardless of how that issue ultimately plays out, at this early point in the District Court proceedings, the victims are still conductin i overy in an attempt to prove to the District Court that the Gove failed in its obligations to properly confer with the victims about A. Obtaining discovery is obviously not a use against Epste. ule 410 is accordingly inapplicable.
## D. RULE 410 DOES N tR\\ISCOVERY el OF THE CORRESPONDX .
Epstein's reliance on Rule is aro plainly premature. By its plain terms, the rule does not apply to v . Instead, it bars only the admissibility of "evidence" against the defe tin a "proceeding." See Fed. R. Evid. 410 (barring use of certain "e \*denc m a "civil or criminal proceeding"). The Rule thus does not apply tedi covery phase at all. See In re MSTG, Inc., 675 F.3d 1337 (7th ? s i
12 EpsteiII also argues that it would be improper for the District Court to invalidate the non-prosecution agreement, even if the victims prove a deliberate agreement between the Government and him that lead to an agreement reached in violation of the Crime Victims' Rights Act. Appt's Br. at 16 n.4. This issue is not currently before this Court. As Epstein concedes, however, the District Court has already ruled against his legal position in a detailed opinion. DE 189. And, as the victims have argued at length below, there is ample basis for a District Court to set aside an illegal plea agreement. See DE 127 at 8-13.
Cir. 2012) (noting that Congress, in enacting Fed. R. Civ. Evid. 408, governing admissibility of statements made during "compromise negotiations," did not take additional step of protecting settlement negotiations from discovery).
Confirming the discoverability of plea discussions are the Advisory Committee Notes to Rule 410. Advisory Committee explains that originally drafted to forbid use of plea discussions "for an Evid. 410, Advisory Committee Note to 1974 Enactment. specifically amended by the Senate to allow use o 19 statements statements have been introduced (a purposes. Id. ule was ." Fed. R. the Rule was where other "comple " rovision) and for perjury
Of particular relevance here, th protected plea bargaining s Cst)h course of the same plea discussions has been ought in fairness be considered contemporaneously another statement made introduced and the s eteness provision provides that even a is admissible "in any proceeding wherein with it." F .')d. 410(b)(2). Here, the Government has already made it quite clear in i ings that it will introduce certain statements about the course of the plea egotiations. See, e.g., DE 225-1 at 45-56 (Government response to request for admission); DE 58 at 10-14 (Government version of contested facts). From these pleadings, it is clear the Government intends to introduce many statements about the timing and course of plea discussions. For example, in its
response to the victims' summary judgment motion, the Government makes clear that it intends to argue that it properly conferred with the victims over eighteen months. See DE 62 at 37. Similarly, the Government intends to dispute that after it entered into the NPA with Epstein it sent misleading notices to the victims about the case still being "under investigation"). Id. at 41. It is simply for the Government to be able to pick and choose from all the events s cS ding the plea negotiations only those that support its case, while dep g victims of the opportunity to even discover information that might their case. See Frontier Ref, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 9 10th Cir. 1998) (a litigant cannot use privilege "as both a sword an b selectively using the privileged documents to prove a point but then the privilege to prevent an opponent from challenging the assertio d Rule 410 in particular blocks such a onesided approach. Instead, der e Rule, the victims are entitled to show the full course of plea discus )tilvat any ultimate hearing in this case about whether the Government their CVRA rights.
ct Court has already ruled that important factual questions exist about wh happened in this case: "Whether the evidentiary proofs will entitle [the victims] to that relief [of setting aside the non-prosecution agreement] is a question properly reserved for determination upon a fully developed evidentiary record." DE 189 at 11-12. The Court has further indicated that it will be considering an
"estoppel" argument raised by the Government as a defense in this case. DE 189 at 12 n.6. The Court has noted that this argument "implicates a fact-sensitive equitable defense which must be considered in the historical factual context of the entire interface between Epstein, the relevant prosecutorial authorities and the federal offense victims — including an assessment of the allegation o eliberate conspiracy between Epstein and federal prosecutors to keep the 0 ' AS in the dark on the pendency of negotiations between Epstein and fede a ities until well after the fact and presentation of the non-prosecutic ement to them as a fait accompli." DE 189 at 12 n.6 (emphasis compelling need for information about "entire interface" was and to respon well as other defenses that it a e victims thus have a ent's actions to show what the Government's estoppel arguments, as be preparing to raise.
Finally, this Court t from use at trial, "d it've evidence" obtained from plea discussion is never S -d States v. Ruhkowsi, 814 F.2d 594, 599 (11th Cir. 1987). n if Rule 410 were somehow applicable to later proceedings here, are free to obtain the correspondence now and follow whatever excluded. Accord' the victi noted that even if plea discussions are excluded discovery leads it may provide. In light of all these points, it is obvious that Epstein's efforts to contort Rule 410 into a barrier barring discovery by the victims against the Government is meritless.
## E. THE WORK PRODUCT DOCTRINE DOES NOT APPLY TO CORRESPONDENCE WITH AN ADVERSARY.
At various points in his briefing to this Court, Epstein seems to allude to the work product doctrine as having some bearing on the correspondence at issue. Appt's Br. at 12 (argument heading mentioning work product doctrine). But Epstein never develops this argument at any length in his brief. plicit argument that the work product doctrine bars release of the co n nce should be rejected.
Perhaps the reason Epstein has not pressed 4 length is because it would be nonsensical to t the work product doctrine applies to correspondence between advl er prosecutors and defense attorneys do not operate in a confidential re roduct argument at any
Case law is clear tha sc 'sure to an adversary waives the work product protection as to items ly disclosed, even where disclosure occurs in settlement." In s e rysler Motors Corp. Overnight Evaluation Program Litigation, O2 844, 846 (8th Cir. 1988). In summarily rejecting Epstein's claim, istrict Court found that Epstein had waived any work product protection in the materials by turning them over to the federal prosecutors:
Assuming without deciding that any part of the correspondence in question reflects "the mental impressions, conclusions, or legal theories" of Epstein's attorneys, Fed. R. Civ. P. 26(b)(3), any work product protection which might otherwise attach to this product was necessarily forfeited when Epstein voluntarily submitted the
information to the United States Attorney's Office in the hopes of receiving the quid pro quo of lenient punishment for any wrongdoings exposed in the process. Work product protection is provided only against "adversaries." Thus, disclosure of the material to an adversary, real or potential, works a forfeiture of work product protection. In this case, Epstein's attorneys' disclosure to the United States Attorney's Office was plainly a disclosure to a potential adversary. The United States Attorneys' office, at that juncture, was reviewing evid ce relating to Epstein' sexual crimes against minor females wi e Southern District of Florida and deliberating the filing o ev t federal charges; while Epstein's counsel clearly hoped • id any actual litigation between the United States and Epstein ential for such litigation was plainly there. By voluntaril berating disclosing this material to federal prosecu a authorities investigating allegations against Epstein at V time, any work product protection was necessarily lost.
DE 188 at 6 (citing, inter alia, United 4114; 1.%" . Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir. 19 e' , W erous cases have reached the same conclusion as the District Court inClil circumstances. 13
13 See, e.g., Westinghouse 1414, 1429 (3d Cir. 1 1 the Justice Departmen as against all 1179, 1192 during c Metho work p question), In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 302 (6th Cir. 2002) (attorney client/work product privilege was "never designed to protect conversations between a client and the Government — i.e., an adverse party — rather, it pertains only to conversations between the client and his or her attorney. . . purpose [of attorney-client privilege] is to encourage Ml and communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. Nowhere amongst these reasons [for protection] is the ability to \`talk candidly with c Corp. v. Republic of the Philippines, 951 F.2d estinghouse's disclosure of work product materials to ng an investigation "waived the work-product doctrine er ad ersaries."); In re Qwest Communications, Inc., 450 F.3d Cir. 2006) (company's disclosure of documents to the SEC investigation waived work product protections); United h v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2005) ("any objection was waived by [party] via production" of the documents in
Moreover, as the District Court made clear, it was simply "assuming" without deciding that the correspondence could properly be described as work product. To obtain a reversal from this Court of the District Court's decision, Epstein would need to prove that the materials actually are work product materials. Again, he has failed to build any record to that effect in the District Co
In any event, any such attempt would be doomed to failur 'ficant parts of the correspondence obviously could not even arguably a i work-product, such as Epstein's lawyer's efforts to get the ment notifications to crime victims. Moreover, Ep\\ t %o Id have to prove that the correspondence was prepared in anticipa gation. Many such documents were presumably not so prepared, a ainly not prepared in anticipation of litigation about the Crime Vi ns is Act. See, e.g., Southern Union Co. v. to stop making Southwest Gas Corp., 2 F. t D. 542, 549 (IX Ariz. 2002) (documents not protected by work pro 'tlefrbecause not prepared in connection with case at hand);
t A Car System, Inc., 916 F.Supp. 256, 259 (W.D.N.Y.,1996) (no wor ct existed because "the documents sought were not prepared in
the Gove ent.'"); In re Chrysler Motors Overnight Evaluation Litigation, 860 F.2d 844, 846-47 (84' 1988) (defendant company's disclosure of computer tape to class counsel during settlement negotiated waived work product when tape sought by government as part of criminal case); In re Sealed Case, 676 F.2d 793, 824-25 (D.C. Cir. 1982) (production of documents during settlement discussions with the SEC waived work product protection as to grand jury materials).
anticipation of this particular litigation") (internal quotation omitted and emphasis added)).
It is also important to emphasize that the work-product is a qualified privilege, subject to a host of exceptions and ultimately a balancing of interests to determine whether the doctrine should be applied. One of the most . \_mg ortant is the fact that one of the parties to the correspondence — the G aIS ent — has a statutory obligation to uses its "best efforts" to protect c rights. 18 U.S.C. § 3771(c)(1). In light of that clear statutory c d, the Government has its own independent obligation to use the ence to help protect the victims' rights, including providing the c n ence to the victims. See DE 106 at 17-18; see also DE 226 at 12-14 ch work product confidentiality can operate in such circumstan s, ch further underscores the fact that any purported "reliance" by th cde, se attorneys on the idea that the correspondence would not be provide'Pt\*victims was unreasonable.
Work is also subject to a crime-fraud-misconduct exception. See Cox v. ator U.S. Steel & Carnie, 17 F.3d 1386, 1422 (1 1 th Cir. 1994). The vic have alleged in detail that such an exception applies in connection with the Government's attempt to assert work product protection to internal Justice Department documents. See DE 225-1 at 23. The same exceptions would prevent Epstein from prevailing on any (as of yet undeveloped) work production assertion.
For all these reasons, the Court should reject Epstein's claim that its correspondence with prosecutors during plea negotiations somehow is confidential work product immune from discovery.
## Ill. THE DISTRICT COURT PROPERLY CONCLUDED THAT CORRESPONDENCE BETWEEN THE GOVERNMENT AND EPSTEIN IS NOT PROTECTED FROM DISciaVERY BY SOME KIND OF "COMMON LA PLEA BARGAINING PRIVILEGE.
For all the reasons just given, Rule 410 (and the wgrijufct doctrine) do not bar the victims from discovering correspon ut how the nonprosecution agreement was reached. Perhaps ing the weakness of this argument, Epstein raises as a final, fallb that the District Court erred in ow" privilege for "settlement/plea s declining to recognize a new "coillon y negotiation communications too, lacks any merit. cases." Appt's Br at 28. This argument,
### A. URTS CANNOT CREATE A "COMMON LAW" es iP EGE THAT OVERULES THE LIMITATIONS OF RULE 410 AND THE STATUTORY COMMANDS OF THE CRIME VICTIMS' RIGHTS ACT.
asks this Court to invent some sort of new "common law" privilege under Federal Rule of Evidence 501. But the Supreme Court has been clear, however, that courts must "not create and apply an evidentiary privilege unless it promotes sufficiently important interests to outweigh the need for probative evidence. Inasmuch as testimonial exclusionary rules and privileges contravene the fundamental principle that the public has a right to every man's evidence, any such privilege must be strictly construed." University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990) (internal quotations omitted).
While Epstein does not cite the controlling legal standard for creating a privilege in this Circuit, this Court has strongly cautioned that "th circuit is that a new privilege should only be recognized \`compelling justification.'" International Horizons, Inc. this there is a Committee of Unsecured Creditors, 689 F.2d 996, 1004 (11th Cir Acy (quoting In re Dinnan, 661 F.2d 426 (5th Cir.1981)). This Court h ' ed that this stringent rule arises from the federal courts' disfavo j, lieges and from the policy of construing privileges narrowly, so as 'is) ect the "search for truth." 689 F.2d at 1003 (quoting United States v o 18 U.S. 683 (1974)).
Here, this Court hap reason to be skeptical of a new plea bargaining privilege. The transtt purpose behind Epstein's "common law" effort is to avoid the s itations contained in Rule 410 — limitations that prevent him from av: elf of Rule 410. See Part II, supra. But the Supreme Court has made cl that courts must be "especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself." University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990) (internal quotation omitted). This Court
should not use the general provisions of Rule 501 to effectively supersede the detailed limitations contained in Rule 410.
In addition, Epstein's argument would require this Court to supersede the Crime Victims' Rights Act. The CVRA promises crime victims a series of rights, including rights specifically at issue in this case: the right to o fer with prosecutors, to be notified of court hearings, and to be treated g fairness. e 18 U.S.C. § 3771(a)(2) & (5) & (8). The CVRA further co that the courts have specific obligations to "ensure" that crime vi V • •ghts are protected. 18 9 U.S.C. § 3771(b)(1) ("the court shall ensure me victim is afforded the rights described [in the CVRA] . ..."). , it is to "ensure" that such rights are protected for Jane Doe No. land J n oe No. 2, two acknowledged victims of Epstein's sex offenses, that th Court has ordered the Government to make the correspondence avai ble o them. The District Court properly gave t precedence to the pr po• n of statutorily-created rights over Epstein's alleged "common la ege.
> NO "COMMON LAW" PRIVILEGE FOR PLEA BARGAINING EXISTS.
Even if this Court were willing to entertain the idea that it should embark on an exercise of "common law" privilege making, no common law privilege exists for plea bargaining. While Epstein frequently alludes to "constitutional considerations" that supposedly undergird plea bargaining, the simple fact remains City, 327 F.3d 1186, 1195 (11th Cir. 2 any occasion for considering the sco right to counsel interests. Moreover, were the Court to consider creating such a be a poor case in which to do so. Epstein is forced to ad P A this would east in federal court, his Sixth Amendment rights have not yet a in this case, because no indictment has yet been filed. See Appt's Br. , e Lampley v. City of Dade fore, this case does not present rivilege to protect Sixth Amendment
In addition, as is pa \<)c t from the District Court's rulings, this case involves a highly un !hot situation where crime victims have raised credible allegations o gement between prosecutors and defense attorneys to violate statutori aced crime victims' rights. Indeed, the Government has recently admitted at "[i]t is not standard practice for the U.S. Attorney's Office to
that "there is no constitutional right to plea bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977). To be sure, the courts tolerate widespread plea bargaining because it helps reduce the workload of congested criminal dockets. But common law rulemaking should not be used to exalt administrative convenience over the far more important value of the search for truth.14
14Of course, if their client wishes, defense counsel should always explore plea bargaining opportunities. See Padilla v. Kentucky, 130 S.C.t 1473, 1485 (2010). But this is a far cry from proving there is a "right" to plea bargaining or that protecting plea bargaining opportunities is more important than, for example, protecting congressionally-mandated crime victims' rights conferred in the CVRA.
negotiate with defense attorneys about the extent of notifications provided to crime victims," DE 225-1 at 50, negotiations that it nonetheless undertook in this case. Id. Accordingly, were the Court to even consider creating a new privilege, it would be doing so in circumstances that do not reflect ordinary plea bargaining practices.
Make no mistake about the sweeping position that Epstein is a s cing: He is not arguing that this Court should recognize a narrow p that would prevent the victims from using any admissions of gui y have made. Instead, Epstein is broadly claiming that his defense eys and the Government can agree between themselves to undertake discussions — even in N violation of congressionally-mandated c • Act tett rights in the CVRA — and then later block the crime victims fro ,, i lig the information that would prove the violation that has happe n ch a privilege would, among other things, directly conflict with the C tut, command of Congress that crime victims must be "treated with fairne 8 U.S.C. § 3771(a)(8),.
Epsteb that defense attorneys must have assurances that Appt's B at 10. But it is now settled that if defense attorneys want to engage in plea discussions with federal prosecutors, they must now be aware that the prosecutors will, in turn, confer with victims about the plea arrangements. Indeed, the Attorney General has promulgated guidelines requiring such conferences. See with prosecutors will never be turned over to crime victims.
communi
U.S. DEPT. OF JUSTICE, ATTORNEY GENERAL GUIDELINES FOR VICTIM-WITNESS ASSISTANCE 41 (2012) ("Federal prosecutors should be available to confer with victims about major case decisions, such as . . . plea negotiations . . . ."). And when a criminal defendant works with a prosecutor to violate that congressionallycreated right to confer, the defendant can hardly complain about eff is to reveal what he has done. In short, Epstein cannot correspond with the i tlftrun i ent about how to avoid the requirements of the CVRA and then e t e able to hide 0 behind some nebulous "common law privilege" to e accountability for any resulting violation of law.
Perhaps recognizing that tenuousn 'Sra \±h iviillege. See Appt's Br. at 40.'5 None of these cases are from the Eleve cuit, which (unlike other jurisdictions) requires a strong showing
IS Epstein also remarkably alleges that there is a "consensus among the states" in favor of protecting plea discussions. Appt's Br.a t 42 & n.10. But his citations simply show that many states have adopted Fed. IL Evid. 410 essentially verbatim, including the limitations that prevent Epstein from taking advantage of its protections here. If anything, his citations show that there is a consensus among the states not to protect the correspondence at issue here.
of "compelling" justification before a new privilege can be created. International Horizons, Inc. v. The Committee of Unsecured Creditors, 689 F.2d 996, 1004 (11th Cir.1982) ("compelling" justification required to interfere with the search for truth in federal cases). Moreover, none of the three cases cited involve plea bargaining in criminal cases — presumably because that subject is already direct vered in detail in Rule 410. Finally, these cases involve situations whe 0 i l rt thought it important to create "confidentiality and trust between par ap in a mediation proceeding." See, e.g., Folb v. Motion Picture Ind ion & Health Plans, 16 F.Supp.2d 1164, 1175 (C.D. Cal. 1998) (e ded)). Here, of course, Epstein is not trying to create trust with ie' dv ent, but rather to block third parties to illegal negotiations learn w extended a new privilege in s tion. See, e.g., In re MSTG, Inc., 675 F.3d 1337 (7th Cir. 2012) (r (Cti, g request for recognition of new privilege for settlement discussion ing need for confidence and trust alone insufficient reason to c a privilege, and noting that Congress, in enacting Fed. R. Civ. Evid. 4 erring admissibility of statements made during "compromise negotiatio s," did not take additional step of protecting settlement negotiations from discovery). Epstein has not established the "compelling" reason that would be required for such an unprecedented step. The District Court's decision not to do so should be affirmed. ned. No other Court of Appeals has
## IV. THIS COURT DOES NOT POSSESS JURISDICTION OVER AN INTERLOCUTORY DISCOVERY DISPUTED.
Not only is Epstein's appeal meritless, but it is also not properly before the Court at this time. Epstein is asking this Court to jump into the middle of a District Court discovery dispute. The Supreme Court in Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009), cautioned that "the district At j e better exercise [his or her] responsibility to [to police prejudgment litigants] if the appellate courts do not repeatedly intervene to s ess prejudgment rulings." Id. at 605. For all of the reasons ex n the victims' pending Motion to Dismiss Non-Party Interlocuto k\\ and Reply in Support of Motion to Dismiss Non-Party Interlo Ih ppeal, this Court should dismiss Epstein's appeal for lack of juris n.
Because the victims a lly briefed the jurisdictional arguments in connection with their pen motion, they will not repeat their arguments here. The victims wil ho er, point out that there is serious discussion among the federal co peals questioning the continued viability of the Perlman d e wake of Mohawk. The relevant opinions are summarized in United States v. Copar Pumice Co., Inc., 714 F.3d 1197, 1209 n. 5 (10th Cir. 2013) ("A few circuit courts of appeals have discussed the impact of the Mohawk decision on the Perlman doctrine, with varying results.").
Epstein relies heavily on one of those opinions, United States v. Krane, 625 F.3d 568 (9th Cir. 2010). See Appt's Br. at 50. But the circumstances there hardly match the circumstances here. In that case, a recognized privilege holder sought interlocutory review to bar release of documents protected by the attorney client privilege in connection with a criminal case. The Ninth C I in Krane allowed the appeal, noting that "for all practical purposes, thi I [was] [the privilege holders] only opportunity to seek review of adverse to its claims of attorney-client privilege .. . Here, however, Epstein will have other oppo use of the correspondence, because he ha\\ 4 1\\ o intervene in other proceedings below. (se court's order t 573 (emphasis added). present a challenge to the
Indeed, the victims nee t a t the Court that Epstein, a billionaire with a battery of well-paid atto ys, dppears to be embarking on a steady stream of motions to intervene atIeser, with a possible steady stream of interlocutory appeals to this Court trategically delaying any entrance for several years, Epstein has no e separate motions to intervene in the District Court. Epstein first sou t limited intervention not when the case was first filed in 2008, but rather more than three years later; on September 2, 2011, he moved to intervene with regard to correspondence between his attorneys and federal prosecutors (DE 93) — the intervention that has prompted this appeal. In response, the victims
objected that his efforts were untimely. DE 96. The victims also warned against "subjecting the [District] Court (and the victims) to an endless stream of \`limited' intervention motions from Epstein and his attorneys whenever a hearing does not unfold to his liking." DE 96 at 17. Ultimately, the District Court sided with Epstein on this particular motion, allowing his limited intervention at of his attorneys) on issues related to the correspondence. DE 158,159 r, of course, the District Court rejected Epstein's arguments releasing the correspondence to this Court, prompting Epstein's c cy. \*nterlocutory appeal.
In June of this year, another hearing n a way not to Epstein's liking. On June 18, 2013, the court d e Government's motion to dismiss (DE 189) and a few days later filed another motion for limited" intervention — this one a "pro motion anticipating that the District Court will need to determine wh e non-prosecution agreement in this case can be set aside as a remedytotjte Government's violation of the CVRA. DE 207. The victims res objectio ervention because the issue had not yet been subject to any litigation. DE 212. That motion by Epstein to intervene remains pending before the District Court and is unopposed. E 209, noting that on this particular issue, they had no
Most recently, on July 26, 2013, Epstein filed a third motion for "limited" intervention regarding grand jury materials that the District Court had ordered the
Government to produce to the victims. Epstein claimed that his motion was timely because the issue regarding the grand jury materials on recently became ripe. DE 215 at 3. Yet the issue was actually several years old, as the victims have argued in their opposition to the motion (which is pending before the District Court). DE 221.
Given that Epstein has filed three separate motions to inte — the District Court has granted one of them, one of them is unopposed, and one remains under consideration — it can hardly be said that this appe s somehow Epstein's "only opportunity" for further review of the relev 4 Indeed, unless this Court makes clear that this interlocutory appea s er, it can perhaps look forward to (and subject the District Court to 1\\ could disrupt the proceedings sort of danger that Moho ed against. Accordingly, this Court should find that it lacks jurisdicti ill\*this time to consider Epstein's interlocutory appeal of the District 0 C iscovery order regarding the correspondence. • s of future interlocutory appeals that kind of delaying tactic was precisely the
## CONCLUSION
Fo 11 these reasons, this Court should find that it lack jurisdiction over this appeal. If this Court reaches the merits of the appeal, it should affirm the decision of the District Court.
DATED: August 30, 2013
Respectfully Submitted,
______________________________________________________________________
Paul G. Cassell\
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](mailto:cassellp@law.utah.edu)
*and*
Bradley J. [REDACTED]\
FARMER, JAFFE, WEISSING,\
[REDACTED], FISTOS & LEHRMAN,\
P.L.\
425 North Andrews Avenue, Suite 2\
Fort Lauderdale, Florida 33301\
Telephone (954) 524-2820\
Facsimile (954) 524-2822\
Florida Bar No.: 542075\
E-mail: [brad@pathtojustice.com](mailto:brad@pathtojustice.com)
*Attorneys for Appellees Jane Doe No.\
1 and Jane Doe No. 2*
## CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(A)
Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements.
1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 12,267 words, excluding the, of the AS brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
1. This brief complies with the typeface requirem 0ed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. P. 32(aX6) because this brief has been prepared in a proportionally sp ce using Microsoft Word 2010 in 14 pt Time New Roman type. CS, (SY Respectfully submitted,
iC)\* a:rt se
V
X I ZI.Iir
( —IN
..)
**CERTIFICATE OF SERVICE**
The foregoing document was served on August 30, 2013, on the following using the Court's CM/ECF system:
Dexter Lee\
A. [REDACTED] Villafaña\
Assistant U.S. Attorneys\
500 S. Australian Ave., Suite 400\
West Palm Beach, FL 33401\
(561) 820-8711 Fax: (561) 820-8777\
E-mail: [Dexter.Lee@usdoj.gov](mailto:Dexter.Lee@usdoj.gov)\
E-mail: [REDACTED]\
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\
E-mail: [rblack@royblack.com](mailto:rblack@royblack.com)\
E-mail: [jperczek@royblack.com](mailto:jperczek@royblack.com)\
(305) 37106421\
(305) 358-2006
[REDACTED] G. Weinberg\
[REDACTED] G. Weinberg, PC\
20 PARK PLZ STE 1000\
Boston, MA 02116-4301\
Email: [owlmgw@att.net](mailto:owlmgw@att.net)\
(617) 227-3700
# EXHIBIT C
NOT A CERTIFIED COPY
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-34791-BKC-RBR
In Re:
ROTHSTEIN ROSENFELDT ADLER, P.A., Debtor.
MOTION TO COMPEL PRODUCTION UMENTS FROM TRUSTEE PURSUANT TO DOCUMENT PRO PROTOCOL ESTABLISHED BY DE#672 (807); AMEN ION FOR PROTECTIVE ORDER
st 4, 2010
hearic74.4:;SSI6fore the one HONORABLE RAYMOND B. RAY, e above-entitled cause came on for he Judges of the UNITED STATES BANKRUPTCY CO T, in and for the SOUTHERN DISTRICT OF FLORIDA, at 299 East Broward Blvd., Fort Lauderdale, Broward County, Florida, on Tuesday, August 4, 2010, commencing at or about 9:30 a.m., and the following proceedings were had:
Reported By: Margaret Franzen
### APPEARANCES:
BERGER SINGERMAN, by CHARLES H. LICHTMAN, ESQUIRE on behalf of the Trustee
CONRAD & SCHERER, by WILLIAM R. SCHERER, ESQUIRE on behalf of victims
BURNETT, b RONALD G. NEIWIRTH, ESQ LILLY ANN, ATTO -AT-LAW E. KNIG S4UIRE L. ACKE QUIRE on behalf of J r Epstein
JAFFE WEISS FISTOS & LEHRMAN, by ER, ESQUIRE DWARDS, ESQUIRE on belt of LM, Brad and Weissing Fistos & Lehrman
1 2 THE COURT: Rothstein Rosenfeldt & Adler. All right. May I have appearances, please?
3 4 MR. LICHTMAN: Good morning, Judge. Chuck Lichtman, Berger Singerman, for the trustee.
5 6 7 8 partners, Chris Knight and Lilly Ann San MR. NEIWIRTH: Good morning, your Honor. Ronald Neiwirth, Burnett, on beh 1 of Aqt, the movant, Epstein, and with me today are o 1. my
9 Good morning ou Honor.
10 MR. KNIGHT: Good morning, our Honor.
11 12 13 14 MR. NEIWIRTH: -- bo hom are more familiar with the State Co t e on this than I ?' l sdr am, so they came along le to elucidate that end of it.
15 MR. FARM Good morning, your Honor.
16 17 18 19 20 Gary on eh of LM, Brad and the fe Weissing law firm. We are an ( c interest pa ty and have filed a motion for prot 'ye order as to the subpoena that is at iss16.' e today.
21 22 23 24 THE COURT: All right. Insofar as the TD Bank motion, Docket Entry 780, that has been the subject matter of an agreed order that was submitted to me.
25 MR. LICHTMAN: Correct, Judge.
THE COURT: Mr. Scherer.
MR. SCHERER: Yes, sir, your Honor.
I'm William Scherer and I'm here on behalf of a number of victims in the State Court action, as well as the chairman of the creditors' committee in the bankruptcy.
THE COURT: All right. That leav s ith Docket Entry 807 and 819. 807 is Je£frre \` Ep tein's motion.
MR. NEIWIRTH: Thank your Honor, and again, good morning. We repre ffrey Epstein. He has a civil claim pendin ntt ate Court in Palm Beach County. He c ASyi n, ed a subpoena on Mr. Stettin requesti do nts from the RRA estate. That was back in 1.
While was still in process, in May, under ket Entry 672, your Honor entered an order tan ardizing procedures for obtaining disco om Mr. Stettin and the RRA estate, an ast on the face of it, it takes jur diction over all discovery efforts against the trustee. That left us in a quandary.
We had a subpoena pending in State Court. We had correspondence from Berger Singerman on behalf of the trustee that they had 1 identified information and they were processing 2 it, including vetting for attorney/client 3 privilege issues, but then in the meantime came 4 your Honor's order on May 18th, so we had to go 5 back and reinvent the wheel and go through the 6 necessary hoops in order to comply with that.
7 In the meantime, as we sit here, e 8 still have no production. We have a t ate 9 coming up in October, and we have a on for 10 protective order coming from a p who's 11 already settled out, the LM p They no 12 longer have anything direr do with this.
13 Further, we ised by the 14 creditors' committe ha in 15 proffered to us, t some point in time there 16 had been somet ike ten boxes of records 17 pertaining 18 on beha of he victims had been given, or 19 seve s eones, had been given access to those 20 ten s and had viewed them, which would 21 to any attorney/client privilege in any 22 event. addition to what was these particular issues and someone
23 So what we are trying to do is fashion 24 a mechanism so we can comply with your order, 25 Docket 672, about standardized means of getting
1 production from the trustee, allow for the 2 appropriate vetting of the materials for 3 attorney/client privilege, and we must bear in 4 mind that this is one objector, there's a lot 5 more documents than that.
6 To the best of our knowledge, the 7 documents that pertain to the LM party, w is 8 settled anyway, may be 15 percent of t ich 9 are responsive to the inquiry that wA malde of the 10 trustee, but in any event, someo as to vet 11 them for attorney/client priv and do a 12 privilege log.
13 Now, Mr. Farpe4. 1r fric e on behalf of 14 LM wants to do that. We on't think that's 15 appropriate. We the privilege at this 16 point, since t e is settled, lies with RRA 17 and, theref e the trustee, rather than 18 Mr. Fauler his client, because as to them the 19 caseer.
20 Furthermore, we don't think there is 21 an rivilege because the boxes have been vetted 22 before and we'll hear more about that from 23 Mr. Scherer, I assume, because he was the one 24 that was aware of that.
25 And last, but not least, your Honor has
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
taken jurisdiction over these discovery matters and attempted to standardize discovery efforts for the trustee. There's a lot of people that want things from the trustee.
The trustee is overseeing an estate L;r which involved somewhere in excess of 70 lawye s and lots of cases and lots of problems, an literally millions of documents, and we absolutely no problem with the stands iz d order, but that means that someho o other we have to be able to deal with i standardized aid instead of Mr. Farm ggestion, which is go back to State Cour 1140 there. eal with it over
at is the status of the State Court proceedin
M NEIWIRTH: May I defer to my partner, miliar with that? who is m
KNIGHT: Your Honor, Kni 0. f I may? While we were waiting for the doc ents from the Stettin office, we obviously wanted to go down two tracks because we had an October trial date. The status of it is we could not come to an agreement with the other side. Mr. Ackerman was at the last hearing, in which the
1 2 3 judge said, one, I need a representative of the trustee here and two, shouldn't this be back before you, Judge Ray.
4 5 THE COURT: You can't proceed against Rothstein in the State Court, they're here.
6 7 8 MR. KNIGHT: And that is the same th'n think Judge recognized, and that's why ' back here, and that's why we had to file otion.
9 10 11 12 MR. ACKERMAN: The claim aga'ns Rothstein is against him individu and it's against Brad individua d it was against one of the claimant ndividually.
13 14 THE COURT: So 144 " ot against the debtor estate.
15 MR. ACK That's correct.
16 17 18 19 20 21 MR. K IGH 7. Just to go a little further on what Mr. Nei rth was saying. Out of these documents we've be as ing for for a long time, very few of them ?ce ven have privilege on their face because the nothing to do with the clients that were rep sented, what's been called as LM.
22 23 24 25 If there's going to be a log, if there's any need, which I don't think there is because I think privilege has been waived, it needs to be a log put together by the trustee, 1 2 not anybody else that has some sort of interest in it.
3 4 5 6 7 8 If there's a problem with payment for those, et cetera, our client has already offered to the trustee, to Mr. Lichtman, we will pay for it, whether it's a special or whether t's iq a contract attorney, if they need to do tD t I don't think we even need to reach the
9 10 11 12 13 14 15 I think these documents ark 1 ng overdue. They have been produce others, they have been used in depositions thers, they are out there, and I thin ( rivilege issue is just being used as a s s reen to keep our client from being ab S t s"get the documents he rS needs to be able o ve his case.
16 Than
17 18 19 20 M ACKERMAN: Your Honor, one other mattertklud It ir expressed a concern about ente ' Ilhy order against the trustee or his cou without them being present.
21 22 23 24 25 Initially we had filed a motion to compel in the State Court, but we didn't realize at the time or it was unclear, because we had just taken over the case from another law firm, that the Court had entered its order.
1 2 3 4 5 6 There was some discussion prior to the hearing and when we went to the hearing, it was clear that there was no agreement that had existed and Judge said, I'm not entering an order, I'm not doing anything on this motion until the bankruptcy trustee is represented.
7 8 9 10 11 12 for documents from the trustee we're here now. He was concerned because this Cou order had set up the standardized proced dealing with these arguments and had ii,:: seved jurisdiction relating to any subp or request at's why
13 THE COURT: Al0 44 ,
14 15 16 17 18 19 MR. KNIGHT: You Honor, just one other point. We tried o, and we've been working with Mr. Lichtman, t ied Lo work out a protective order between the ustee and Epstein regarding the subpoena Mr Lichtman and agreed to lang o it. I have a copy of it. S'
20 21 22 23 24 0 .I:h. Mr. , with his motion for pretpective order, would not agree to that, but if the Court would like to have a copy of what the draft was, I will approach your clerk, but if you do not want that, I also ---
25 THE COURT: Well, let me hear from 1 everybody first.
2 MR. KNIGHT: Okay.
3 4 5 6 7 8 MR. : Thank you, your Honor, may it please the Court. Again, Gary on behalf of the interested party, LM, also on behalf of Brad and I'm sorry, your Honor, Mr. Ed a ds is here with me. I neglected to introduce t the Court earlier.
9 (::) MR. : Good morning, ou Honor.
10 11 12 13 14 15 MR. : There has a lot of discussion here about your Hono r andardized At production order and I thin 'you need to understand that this parA matter, which is A before you today, is th g but standard or common to the matters bef6rs is Court.
16 17 18 19 20 21 22 You n understand the nature of the case. convicte pe phile. He sexually assaulted doze ozens of young girls under the age of 15. led guilty to this and he has settled eve civil lawsuit filed against him on this issue. frey Epstein is an admitted
23 24 25 Despite all of this, Mr. Epstein has seen fit to file a lawsuit against LM, who is one of the plaintiffs against him; against
1 2 Brad, LM's attorney; and against Mr. Rothstein.
3 4 5 6 7 8 9 10 11 Now, , myself, and all the members of our firm were RRA attorneys when Mr. Rothstein took his ill-fated trip to Morocco and did the things which are now so well kno but the fact of the matter is that this d request is a blatant attempt to obtain privileged documents related to the (.. ) representation of LM and many of-a victims, by the way.
12 13 14 15 16 17 18 19 20 21 Agyo, And if I can shoo Honor a copy of the subpoena itself, I 10\$t think that the cc breadth of the subpo a h srbeen adequately represented to t o t. If you peruse this, you will see tty~ e asking for communications with privat nvestigators, they're asking for conting y e contracts, they're asking for ever nication between any member of the fir d they throw Rothstein in just to make it se about these cases.
22 23 24 25 Now, your Honor, clearly communication about the representation of a client falls under not only the work product, but if the client is involved in the communication, also the
1 attorney/client privilege.
2 3 4 5 Now, most of this stuff we've already responded and said none, none, none, but for many of these items, we have asserted the privilege and we continue to assert the privilege.
6 7 Now, the only reason the trustee is here --- A
8 9 THE COURT: Wait, there's been Si ilege asserted in the State Court proceedin
10 MR. : Yes, sir.
11 12 THE COURT: And the r privilege log and the judge has made a ru
13 14 15 16 17 18 19 20 MR. : N 6it, dispute over who's going to ' e ISt'e privilege log and respectfully, Jud ' w 11.1.1t we suggest is that the trustee has bee th st into this matter simply because the ustee i\* former a orl ys at RRA, and the trustee is likewise boun t ie privileges that attach to the cases and AS s to wyers that were at the firm. now really is stands in the shoes of all the
21 22 23 24 25 The trustee has repeatedly acknowledged the fact that it is bound by those privileges and, of course, as your Honor knows, the privilege belongs to the client, not to any lawyer or any law firm.
AllAr
1 2 3 4 5 6 7 8 9 10 So the trustee is really kind of stuck in the middle here. You've got the pedophile who wants documents related to the cases he's already settled and pled guilty for. Those documents, the electronic documents, at least, the e-mails, electronically stored information is how it' 4C' referred to in the discovery request, you t on r, are not in our possession, they are in possession of the trustee because th ustee took the computer system.
11 12 13 14 15 16 So the trustee does nt to incur the cost and expense of f a. privilege log and, frankly, I don't at the trustee has a full appreciation o he ature and specific facts of the cas conduct a comp to privilege log. would enable it to
17 18 19 20 21 22 S suggestion, your Honor, and it's A been re' cte I believe it's acceptable to the trus \` ut it's been rejected by Mr. Epstein's cou is the trustee be removed from this equ ion. There's no need that we come back before you.
23 24 25 This case, this Epstein case, is not a matter which would involve bankruptcy estate assets going to Mr. Epstein. Unlike
1 2 3 4 5 6 7 Mr. Scherer's clients, who have claims before this Court, and hopefully they will get some form of relief from the Bankruptcy Court, Epstein is not seeking any bankruptcy assets. He's suing Brad and LM personally, and Scott Rothstein, and it's not an estate claim, it' against Scott Rothstein personally.
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So my suggestion, your Honor you instruct the trustee to turn thi ectronic documentation information over t file the appropriate privile with the Circuit Court judge who is ding over the case, who is most fami ' th the case, who will be considering e coming motion for < lo ;. summary judgment, ossibly trying the case, and that way y r nor is not burdened with this matter, the ustee does not incur fees and expense t"' -Ic sus, wing to go through all of these rj docu, prepare a privilege log and our cli and Mr. -- Mr. is also a pa y of that lawsuit. He enjoys his own privilege, your Honor, over and above, or in addition to, I should say, the privilege possessed by our former clients and, of course, I know counsel knows that the privilege extends We will
1 beyond the litigation.
2 3 4 5 6 7 8 9 10 So although Mr. Epstein paid a ton of money for this claim that is supposedly frivolous, it has been settled, but the privilege still extends and it remains in place. So we simply want to make sure that our investigativ materials, our reports, other documentation relating to the claims we have and have (4 against Jeffrey Epstein are not put in 3o h nands of Jeffrey Epstein's attorn
11 12 13 14 15 16 17 18 Now, we just want th A At these documents and prepare ivilege log and A c the trustee is kind of s llSsdr Judge. Remove the t tee rom the equation, let us get the docume s 11 file the privilege log, and then M tein and us can go before Judge e can review the privilege log, review t do uments in camera. e to review the middle here,
19 20 21 22 ( ic k 11 that is going to be pretty time con but he's much more suited, a better sui d judge because he's more familiar with the facts to engage in that inquiry.
23 THE COURT: Thank you.
24 MR. : Thank you, your Honor.
25 THE COURT: Mr. Lichtman, Mr. Scherer, your 1 Input, please.
2 3 MR. LICHTMAN: I'm going to let Mr. Scherer go first.
4 5 MR. SCHERER: I think he wants me to go first.
6 THE COURT: All right.
7 8 9 10 11 12 13 14 MR. SCHERER: Your Honor, in Nove we filed a lawsuit in State Court and we ed that as a part of Mr. Rothstein and the filrm, and the firm's employees, and maybe s. f the firm's attorneys, conspired to y. e Epstein/LM A litigation in order to lure million worth Nk Ve of my victims, my client, investments in these one settlements. making
15 16 17 18 19 20 21 22 23 24 And as 1 ged in that State Court proceeding, and sharpened the allegations as we've am sometime 'n 1 te October, that my clients were So invi 'n the Rothstein firm with Mr. tein, and he explained that he had a lit ation going in State Court with Mr. representing LM, a victim of Mr. Epstein, and these are kind of sensational allegations and 4 t's been printed widely. ed a few times, we allege that
25 And my clients, a number of them and
ALAr
1 2 3 4 5 6 7 8 their lawyer, went into the Rothstein conference room and Mr. Rothstein brought down -- summoned the investigators, two of them, two or three of them, to bring down the Epstein file. And the lawyer that my clients brought from a national firm, went through the LM boxes, ten of the the investigators brought down, and concl that the Epstein case was a real case.
9 10 11 12 13 14 15 16 And what Mr. Rothstein did(witlh that real case, of course, is he tol not only did he have the LM c Mr. , that there w young ladies, that was ' ASsrI published in the ( S 0 newspaper, that the Arm as representing and rybody that f umber of other that wanted to s confidential b ith Mr. Epstein on a
17 18 19 20 21 22 23 S e used the real case in order to defraud c ents into investing into these phon ece lements and paid 13 and a half million do I believe that Mr. Rothstein and others in e firm also told that story to a lot of other people, and let a lot of other people examine those ten boxes of the real case.
24 25 In addition, as we have alleged, that Mr. and the firm put sensational
1 2 3 4 5 6 7 allegations in the LM case that they knew were not true, in order to entice my clients into believing that Bill Clinton was on the airplane with Mr. Epstein and these young woman and other personages, I can't remember who they are, and all sorts of other allegations that really w not even related to the LM case.
8 9 10 11 12 13 14 And to the extent that any 1 from the RRA firm, former lawyers, made a to of money or however Mr. talked abo t, we're interested in that ton of mo ause if they were involved in this sch is fraud, there's 2\<; a crime fraud exceptio AS, to see the ten boxes ha rthey brought down. in addition, I want
15 16 17 18 19 20 21 22 23 24 The tr oes not have those ten boxes. Those xes were taken by Mr. when he lef the law firm, I presume. So we want the ten xe we want all the communications and fr we w t look through everything on behalf of my t TZ) Court case, but also on behalf of the cre itors' committee because the creditors' committee is looking to see if anybody else in the firm, other than Rothstein, was involved in this massive fraud that used the Epstein case.
25
The model of using an existing case and
1 2 3 4 then spinning off a fraud from it is the same that was perpetrated on the Morse -- in the Morse situation, as has been alleged and widely produced.
5 6 7 8 9 10 11 12 13 14 I can't conceive that Mr. and the predecessor law firm would have any stag to prepare privilege logs or anything els i en what I just told the Court. That woul ike having the fox guard the hen house. Th t Epstein AV case is settled, and to the exte t's the ten A(ItY boxes of stuff that we looke gh, and I'll 4s have to get the boxes to s i s" the attorney who 'Sr looked through them, a Atw much time he spent looking through the
15 THE COU here are the ten boxes?
16 17 18 19 20 21 22 23 24 MR. HE That's a good question. The trustee oes not have the ten boxes. I presume e 'I ..: 7 n - boxes are residing with the lawy ?\1 23 the expense of which will be borne by the Epstein 24 movants. The special will meet with both 25 sides, Epstein and, and then with the
1 2 3 trustee, and will prepare a privilege log, the release of which will be noticed for hearing in front of me.
4 5 or do you? MR. LICHTMAN: Do I pick the special
6 7 8 9 THE COURT: You can -- if you all ca hate to use the word agree, but if you all that's fine. If you can't agree, give (:m to choose from. ) ee, names
10 MR. LICHTMAN: Okay.
11 12 13 THE COURT: You're g have to check with this, quote, "special to make sure they have the time to review 1 44,p, vilege log.
14 MR. LICHT e documents.
15 16 THE COU d it has to be somebody that ct of interest. doesn't have a
17 M LICHTMAN: Right. Okay.
18 19 THE COURT: All right. Run the order by Mr. 'r h and Mr.
20 MR. LICHTMAN: Thank you.
21 MR. : Thank you, your Honor.
22 23 MR. NEIWIRTH: Your Honor, may it please the Court?
24 THE COURT: Yes.
25 MR. NEIWIRTH: Can we say something about 1 2 the time frame because as we sit here right now we still have a trial coming in October.
3 4 5 6 7 THE COURT: Well, I understand that, but I probably have between five and 6,000 active cases right now and within the Rothstein case, I don't even know how many adversaries and contested matter re pending. I'll get to it as soon as I can.
8 9 10 11 12 But you can proceed to obtain information from and LM in the St to Court proceeding. All I'm govern s what the trustee is going to release fr debtor estate.
13 14 order. All right. Mr A S : v: man, see to the ( S'
15 MR. EDW 4(tD \*) if : Thank you, your Honor.
16 17 Honor. MR. F E . Thank you for your time, your
18 R. SitIr M EIWIRTH: Thank you, Judge. N
19 Thereupon, the hearing was concluded.)
20
21
22
23
24
25
## CERTIFICATION
STATE OF FLORIDA: COUNTY OF DADE:
A 49 I, Margaret Franzen, Shorth eporter and Notary Public in and for the S o ''Florida at Large, do hereby certify that foregoing proceedings were taken before at the date and place as stated in the ca ereto on Page 1; that the foregoing compu a ed transcription is a true record of my ste is notes taken at said proceedings.
WIT hand day of August, 2010. this 5th
Margaret Franzen
Court Reporter and Notary Public and for the State of Florida at Large My Commission Expires: April 14, 2014