Text extracted via OCR from the original document. May contain errors from the scanning process.
On July 7, 2008, Edwards and I filed a petition alleging that Jane Doe No. 1 was a victim of
federal sex crimes committed by Epstein and that the United States had wrongfully excluded her
from plea negotiations. We also alleged that the federal prosecutors had violated her rights under
the Crime Victims’ Rights Act (CVRA) — specifically her rights to confer with the government,
to be treated with fairness, to receive timely notice of relevant court proceedings, and to receive
information about restitution. The United States responded by claiming that it used its “best
efforts” to comply with the rights afforded to victims under the CVRA, but that the act did not
apply to pre-indictment negotiations with potential federal defendants.
After Jane Doe No. 2 joined the initial petition, the district court (Marra, J.) found that both
women qualified as “crime victims” under the CVRA. The district court later_rejected the
government's argument that the act only applies after the filing of a federal criminal
indictment. (I’ve written a law review article about the issue of how early crime victims’ rights
attach in the criminal process, which can be downloaded here.)
Among other relief, we sought rescission of the non-prosecution agreement as a remedy for the
violation of the victims’ rights. To make the case for such a remedy, we moved for discovery of
the correspondence between the U.S. and Epstein’s attorneys during the plea negotiations.
Epstein’s attorneys intervened, arguing that Federal Rule of Evidence 410 and Federal Rule of
Criminal Procedure 11 create a privilege for plea negotiations, barring release of the
correspondence. They also argued that the court should find that the materials were protected
under the work product doctrine or, alternatively, should be protected under a new “common-
law privilege for plea negotiations.”
The district court first ruled that rescission of the plea agreement was a possible remedy under
the act. The court then ruled that we were entitled to review the correspondence, rejecting all of
Epstein’s arguments.
On Friday, the 11th Circuit affirmed the district court's ruling that we could review the plea
correspondence. At pp. 18-22 of its published opinion, the court concluded that there was no
basis for restricting access to such correspondence when crime victims have a legitimate need to
review it. The court rejected, for example, the work product argument because plea discussions
are not confidential:
Disclosure of work-product materials to an adversary waives the work-product privilege. See,
e.g., Jnre 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. ...
The court also declined to recognize a new privilege for plea bargaining, finding the relationship
between prosecutors and defense attomeys did not need special protection:
Asa last-ditch effort, the intervenors contend that “[i]f more is needed in addition to the plain
language of Rule 410 to preclude disclosure of the correspondence to plaintiffs, it can be found
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