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Page 1 Page 3 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502008CAO2S051X300IMB AB L.M., Plaintiff, -vs_ JEFFREY EPSTEIN, Defendrat. HEARING BEFORE ME HONORABLE DONALD HAFELE PLAINTIFFS MOTION TO COMPEL RESPONSES TO FIRST REQUEST TO PRODUCE Tuesday, May 25, 2010 Palm Beach County Courthouse West Palm Beach, Florida 33401 8:38.9:14 a.m. Reported By: Cynthia Hopkins, RPR, FPR Notary Public. State of Florida Prose Court Reporting Job No.: 2219 1 APPEARANCES: 2 3 On behalf of the Plaintiffs: 4 BRADLEY J. EDWARDS, ESQUIRE FARMER, JAFFE, WEISSING, EDWARDS 5 FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue 6 Suite 2 Fort La ' a 33301 7 Phone: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On behalf of the Defendants: MICHAEL L PIKE, ESQUIRE BURMAN, CRITION, LOTTER & COLEMAN, LLP 303 Banyan Boulevard Suite 400 West P rids 33401 Phone: Page 2 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 2 CASE NO scaooscAomossmoacma AB 3 4 S 6 7 B 9 10 11 12 E.W Plaintiff, -vs- JEFF ANDS'S., Defendants. HEARING BEFORE THE HONORABLE DONALD HAFELE 13 14 15 PLAINTIFFS* MOTION TO COMPEL. RESPONSES TO FIRST REQUEST TO PRODUCE 16 17 18 Tuesday, May 25.2010 Palm Beach County Courthouse 19 West Palm Beach, Florida 33401 8:38 - 9:14 a.m. 20 21 22 Reported By: Cynthia Hopkins, FOR, FPR 23 Noisy Public., State of Florida Prose Court Reporting 24 Job No.: 2219 25 1 2 3 4 5 6 7 8 9 LO _1 _2 -3 4 .5 ,7 L8 .9 20 21 22 23 24 25 Page 4 PROCEEDINGS THE COURT: L.M. versus Epstein. Okay. It's the Plaintiffs Motion to Compel and it reflects two items that are being requested or two groups of items that are being requested. Mr. Edwards? MR. EDWARDS: Yes, Your, Honor, just so the record is clear, this is also meant to be set in E.W., an identical request, identical motion similar to the way that we have handled them in previous hearings. THE WITNESS: Do you have any objection, Mr. Pike, to handling both at the same time? MR. PIKE: No, Your Honor, the application would be the same for both. THE COURT: All right. Thank you. MR. EDWARDS: Your Honor, for the most part, lam going to rest on our motion. As Your Honor is well aware based on previous discussions, this issue, identical requests have been fully briefed to the federal court. There has been a ruling and a federal court order that is very well reasoned and very detailed. I asana•a•ax-.... vv. • 1 (Pages 1 to 4) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthla hooking (601.051.976.2934) 61190043-6636-47e1 -a2dd-d6f2305779ff EFTA01082634 Page 5 And Mx. Pike and his firm have taken that 1 2 issue up on appeal after these particular 2 3 requests were granted in that stage. 3 4 But the points that I would like to make 4 5 are we are simply asking for — let me back up. 5 0 We have at this point in time received no 6 7 discovery in terms of production, in terms of a 7 3 single document, in terms of any information, 8 9 in terms of anything other than a blanket Fifth 9 10 Amendment assertion. And while we have all 10 11 been educated on the Fifth Amendment during 11 12 this case and understand that it is available 12 13 in a broader sense than I had obviously 13 14 originally believed, it doesn't work in the way 14 15 that it is trying to be used right now. 15 16 In fact, it seems that it is applicable 16 17 when it is not only going to immediately 17 18 incriminate Mr. Epstein or whomever is 18 19 invoking, but also when it provides a link in 19 20 the chain to prosecution. 20 21 So, these particular requests are asking 21 22 for documents that were already in the 22 23 possession of the government. So therefore, 23 24 the existence of those documents is a foregone 24 25 conclusion to use the term of art normally 25 Page 7 to the State or to the U.S. Attorney, the State Attorney or the U.S. Attorney. MR. EDWARDS: Well, we have by way of a FOIA request requested the State Attorney's file. They gave us some information. We have learned, and I am not really sure how that process works, whether it gets taken to an office and everything is copied and sent out, but then have been certain documents that we received that other attorneys who have done a similar FOIA request received a couple more documents or a couple less documents. And similar to the U.S. Attorney's office, we have not done the FOIA request to them although because there is a specific procedure for getting things in the possession of the FBI, we have requested it by way of motion. We're going through that process but that process is a lengthy process. This is a much simpler process and at this point in time we would know what Epstein has related to our client, what he has related to other clients, that would provide similar fact evidence and generally what was given to him and certainly information that were entitled Page 6 1 discussed in the case law that is applicable to 2 to this issue. 3 And if the government has already had 4 these documents in its possession and has 5 provided it to Epstein, then it could not 6 possibly form a link in the chain to 7 prosecution. It's not something that the 8 government does not already know about. And 9 that is where we have decided, hey, you know 10 what, if we can't get any other information, 11 there is certain information that we're 12 definitely entitled to, and that would be all 13 the information that has already been in the 14 government's hands and provided to Epstein. 15 And so were asking Epstein just for that 16 information that the government already had 17 within its grasp. 18 And for the remainder of the argument I 18 19 think it's fairly detailed in the analysis and 19 20 the conclusion. I will rest on the written 20 21 motions. 21 22 THE COURT: Okay. Let me just ask a 22 23 question that the Defense has raised and that 23 24 is, why have you not subpoenaed or if you have 24 25 what have been the fruits of documents directia_____ Page 8 1 W. 2 THE COURT: Thank you. 3 MR. PIKE: Your Honor, may I approach? 4 THE COURT: Yes. 5 MR. PIKE: There are a couple of rules 6 that I provided counsel that Your Honor needs 7 to take into consideration, 90.408 and 90.410 8 and the corresponding Rules of Evidence 408 and 9 410 and as well Federal Rule of Evidence 502-D 10 which deals with information that is 11 interchanged between criminal lawyers, the 12 defendant, and the state or federal government 13 during plea negotiations. 14 THE COURT: Well, it's interesting because 15 I thought about that last night, but I didn't 16 see argument in any papers that you filed. 17 MR. PIKE: That's right, Your Honor, it was not referenced in the papers but on the appellate side which we discussed prior to the court reporter showing up, it has been discussed and fully briefed. And I wanted to bring Your Honor's attention to it today at today's special set hearing. Mr. Edwards has obviously a copy of that appeal. MR. EDWARDS: I was given that informatio 2 (Pages 5 to 8) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-051-976-2934) 61190aa3-6638-47c1-a2dd-d6f2305779ff EFTA01082635 Page 9 1 this morning related to these particular rules, 2 so I do have them. 3 MR. PIKE: Your Honor, if you would 4 provide me with some leeway to clear up some 5 matters, some housekeeping matters first before 6 I get into the bulk of my argument would be a 7 appreciated. 8 THE COURT: Sure. 9 MR. PIKE: As a prelude, Your Honor, 10 Plaintiff seeks all the information exchanged 11 between Jeffrey Epstein's attorneys, the USAO, 12 the State Attorney, and the local state and 13 federal government. 14 What's important here is that we all 15 understand that there are corresponding and 16 companion cases and therefore discovery needs 17 to be consistent. In the federal court cases 18 and to the extent I understand the request. at 19 issue here today, we have responded that 20 Jeffrey Epstein has no, quote, discovery 21 information provided to him by the federal 22 government. And I had told Mr. Edwards that 23 not only in person, not only by motion, but 24 also by letter. All right. So Mr. Edwards 25 understands that. Page 11 1 Epstein's counsel relative to the 2 nonprosecution agreement, and therefore to the 3 extent that Your Honor orders any of this 4 information be produced, similar to the federal 5 court relief requested, we ask that an 6 in-camera hearing be held to review this 7 information to determine what attorney work 8 product and mental impressions should be 9 redacted from that information consistent with 10 Federal Rule of Evidence 502-D which is a 11 selected waiver provision and does not apply 12 the far broader waiver provisions when 13 discussing plea negotiations. 14 So those are some things that Your Honor, 15 we respectfully request that Your Honor take 16 into consideration. 17 Secondly, Your Honor, as to the State 18 Attorney's file as set forth in my motion, Jack 19 Goldberger, who as Your Honor knows is 20 Mr. Epstein's criminal lawyer, went to the 21 State Attorney's office and hand selected 22 various documents. 23 The State Attorney's office as set forth 24 in Mr. Goldberger's affidavit did not produce 25 any information to Mr. Goldberger. He went to Page 10 Secondly we have responded in federal 2 court motions that Epstein had not been given 3 any, quote, evidentiary materials or 4 evidentiary documents by the federal 5 government. So, to the extent that handles any 6 portion of these requests, Mr. Edwards is on 7 notice in that regard. 8 The other issue that we're dealing with is 9 these requests are far broader, the ambit of 10 the requests implicate whether or not the 11 Plaintiff is seeking just communications 12 provided by the United States Attorney's office 13 to Epstein's counsel or all of Epstein's 14 counsel's communications with, for example, the 15 USAO the State Attorney's office or any other 16 local, state, or federal law enforcement 17 agency. 18 And as Your Honor knows, if Jane Doe, if 19 L.M. and E.W. seek all communications, it 20 implicates the work product of Epstein's 21 lawyers. And if the Plaintiffs seek just the 22 communications provided by the USAO or the 23 State Attorney, it deeply implicates the work 24 product of the USAO and the State Attorney when 25 theza!ere negotiating and communicttin with Page 12 1 their file and hand selected that. So any 2 information that he hand selected would be 3 protected pursuant to the work-product 4 privilege. 5 THE COURT: I am not sure l saw 6 Mr. Goldbergefs affidavit in the papers that 7 you provided. Do you have an extra copy? 8 MR. PIKE: Yes, it's attached there, Your 9 Honor. 10 THE COURT: Is it attached to the same 11 documents where the order was attached? 12 MR. PIKE: Yes, Your Honor. 13 THE COURT: The federal government's 14 order? 15 MR. PIKE: No, it's attached as Exhibit E 16 to our responsive motion. 17 THE COURT: It's the same group of 18 documents. I do have it. Thank you. 19 MR. PIKE: That would be correct. Okay. 20 As Your Honor knows, Federal Rule of Evidence 21 408, 410, and 502 all deal specifically with 22 plea negotiations and the policy, and the 23 critical public policy of encouraging 24 resolution of criminal prosecutions without 25 trial and with the understanding that 3 (Pages 9 to 12) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkIrss (601.0614714934) 51190.a3-6636-47c1-a2dd4612305779ff EFTA01082636 Page 13 1 Defendants will be considerably more likely to 2 engage in full and frank discussions with the 3 government if they fear that statements they 4 and their counsel make to the government will 5 be used against them to their detriment. 6 The policies underlying that critical 7 issue and the rules are Federal Rules of 8 Evidence, 408 and 410 and 502. 9 Even more importantly, Your Honor, is 10 Federal Rule of Evidence 502, and obviously 11 Florida Rules of Evidence, Florida Rule of 12 Evidence counterpart 90.502, 408 and 410. 13 With regard to 502, Your Honor, there is a 14 strong public policy in favor of 15 confidentiality and plea negotiations. The 16 disclosure of such information should be 17 treated as falling within the selected waiver 18 provisions of Federal Rule of Evidence 502 and 19 not be treated as an open-ended waiver of the 20 attorney-client, work-product privileges. 21 And if the discovery order is entered, we 22 would request that an order also be entered 23 pursuant to Florida Rule of Evidence 502-D 24 mandating that the communications that led to 25 the execution of the non-prosecution agreement 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 Page 15 interaction with Mr. Epstein at his house, I am specifically reading from Page 41 related to A.H. who is one of the victims he pled guilty to. Mr. Pike: Is that the same document that you're seeking production of in the exact same case? Mr. Edwards: 1 don't know what you're talking about. This is something from the State Attorneys file. Next, at the deposition of A.Ft. on March 15th, 2010, the following exchange occurred: Mr. Edwards, well, at some point in time what has been marked as Defense Exhibit I, you received a grand jury investigation target letter, correct? There is another message from September 11, 2005, saying I got a car for, and then the name is blotted out. The State Attorney's office blotted out the names of minors sometimes in their file. It is clear, Your Honor, that Mr. Edwards has the State Attorney's file. He has the Palm Beach Police Incident Report. He can get the Information because he has received the information from other sources. I Page 14 1 and the communications regarding its 2 implementation should be to the extent they 3 have upon any work-product not disclosed to any 4 third party. 5 As Federal Rule of Evidence provides, a 6 federal court may order that the privilege or 7 protection is not waived by disclosure 8 connected with the litigation pending before 9 the court in which event disclosure is also not 10 a waiver in any other federal or state 11 proceeding. 12 I think Your Honor asked Mr. Edwards a 13 very pointed question. And that question was 14 whether or not Mr. Edwards had subpoenaed the 15 State Attorney's office or the United States, 16 the USAO. And in fact, Mr. Edwards as well as 17 various other lawyers have the information that 18 they are seeking here today which I have 19 deduced from other depositions. 20 For example, at the deposition of 21 Mr. Epstein of February 17th, 2010, Mr. Edwards 22 asked the following question: 23 The 87 page police report, police 24 department incident report where there are 25 numerous underage females describing their a — Page 16 1 In fact, Mr. Kuvin at Detective Recarey's 2 deposition who is obviously a detective for the 3 Palm Beach Police Department, the following 4 exchange occurred at that deposition: 5 Mr. Kuvin: Okay. And what were the dates 6 of the surveillance? 7 Witness: It appears she met with members 8 of the B.S.F., the Burglary Strike Force Unit. 9 Mr. Kuvin: If we go down to Page 40 in 10 your report — first let me back up. Okay. 11 So, the chain of custody which we have marked 12 as Exhibit 5 shows that all the evidence you 13 had in this case was given to the FBI. 14 It is clear that not only Mr. Kuvin, 15 Mr. Edwards, and Mr. Horowitz who does not have 16 any state court cases but has several, l think 17 seven federal companion cases, they have this 18 information, Your Honor. 19 By way of getting this information from 20 other sources, it does not implicate Jeffrey 21 Epstein's Fifth Amendment rights. It doesn't 22 implicate Rules 408, 410, or 502. 23 But to require Jeffrey Epstein to thumb 24 through information and select as the federal 25 court has already ruled in the attached orders 4 (Pages 13 to 16) PROSE COURT REPORTING AGENCY, 0401tonloilly signed by Cynthia hopkins (601-051-976-2934) INC. 51190943-6636-47c1a2dd-d612305779ff EFTA01082637 Page 17 1 and select information that may be responsive 2 would, quote, and I am not quoting but I will 3 paraphrase, but it is in the order, would, 4 quote, require Epstein to effectively use his 5 mind and therefore testify to the genuineness, 6 the location of the documents which would 7 implicate the Fifth Amendment 8 They can get this information from other 9 sources, and I am not quite sure what 10 Mr. Edwards told the Court is exactly correct. 11 I have not seen any -- obviously I don't need 12 to see any Freedom of Information requests. 13 But I have not seen any subpoenas issued to the 14 FBI despite my concession earlier today that we 15 didn't have any information relative to those 16 particular requests. 17 I have not seen any requests to the State 18 Attorney's office. I have not seen any 19 subpoenas to the Palm Beach Police Department 20 I haven't. And Mr. Edwards can correct me if1 21 am wrong. 22 But this all can be, you know, another 23 avenue could be taken where all of these Fifth 24 Amendment implications are not at issue. 25 THE COURT: Okay. Thank you. Page 19 1 documents himself, how does that implicate the 2 work-product privilege in your mind? 3 MR. EDWARDS: I don't see how it does 4 implicate the work-product privilege. He is 5 taking information that was in the government's 6 possession. And I saw his affidavit but it is 7 somewhat inconsistent with what Mr. Pike just 8 said. I referred to an 87-page police report 9 that apparently Mr. Goldberger didn't select. 10 And Mr. Pike says, well, isn't that exactly 11 what you are asking for us to give to you in 12 this discovery request. So, apparently they do 13 have it. Thais the thing, I don't know what 14 they have or what they don't have. 15 But the mere fact that he selects various 16 items and chooses not to select other items, 17 that doesn't implicate the work-product 18 privilege to the extent -- if it does, it's 19 waived. That's something that the State 20 Attorney's Office presumably knows what 21 documents were copied for him and given to him. 22 So any information that he used to hand 23 select or pick these documents was already 24 information that is known to the State 25 Attorney's Office. 5 Page 18 1 Mr. Edwards. 2 MR. EDWARDS: Well, the requests made to 3 the FBI and the subpoenas were made and that 4 issue is before Judge Marra. I believed that 5 they had responded to it but maybe it was just 6 my office and the FBI's response. But either 7 way, it's not only my office, Adam Horowitz's 8 office has requested information from the FBI 9 as well. Its a process to go through. And 10 the easier process is to get them from Jeffrey 11 Epstein. Rather than go through the same 12 arguments I made again -- 13 THE COURT: Let's talk about some of the 14 arguments that Mr. Pike has reiterated and 15 already written. And I appreciate both sides' 16 written presentation. They were both very 17 good. 18 Mr. Pike is taking issue on a couple of 19 things. One is the work-product privilege 20 enunciated by Mr. Goldberger and the affidavit 21 relative to not so much the response of the 22 State Attorneys office in the form of a 23 production response to a demand for discovery, 24 but instead Mr. Goldberger going to the State 25 Attome s office, ap nil hand selecting Page 20 1 So, any work-product privilege that 2 existed, which I really can't wrap my mind 3 around that argument, ifs waived by the mere 4 fact that the State Attorney's office is in on 5 it, they are in on the choosing, the hand 6 selecting and the copying of these documents. 7 And I think that we're certainly entitled 8 to know what documents are related to, not only 9 our clients but because of the nature of this 10 case, the other females that these documents 11 are going to be used against our clients and 12 have been used in depositions against our 13 clients. They clearly asked information we do 14 not have. 15 THE COURT: What about the issue of 16 compromise? 17 MR. EDWARDS: Meaning? 18 THE COURT: Meaning that these documents 19 were generated, utilized, and disseminated 20 potentially in the course and scope of the 21 hammering out of the plea agreements. 22 MR. EDWARDS: Well, the hammering out of a 23 plea agreement in this case is different. 24 THE COURT: I used the pleural because my 25 understanding is the U.S. Attorney was the 5 (Pages 17 to 20) I PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthis hopkins (601-051476-2934) 611110aa3-6636-47c1-a2dd-d6i2305779ff EFTA01082638 Page 21 1 first to hammer out the plea agreement, and 2 then that was essentially accepted by the State 3 Attorney's Office, correct? 4 MR. EDWARDS: That's correct. And that 5 information Judge Marra determined early on, 6 before any of the civil lawsuits were filed, 7 that the victims were all entitled to that. So 8 the final documents and the documents leading 9 up to that plea agreement in the negotiations, 10 those are already in our possession and Judge 11 Marra said, hey, those are yours. 12 But any other information that was either 13 conveyed to the U.S. Attorney's office or to 14 Mr. Epstein in an attempt to hash out these 15 plea deals, it directly involved our clients 16 and the crimes that were committed. 17 That is information that was intentionally 18 conveyed between the two parties. And going 19 straight off of the Federal Rule of Evidence 20 502 that was cited by Mr. Pike, it seems to say 21 in Part A, disclosure made to a federal office 22 or agency: When the disclosure is made to a 23 federal office or agency and waives the 24 attorney-client privilege or work-product 25 privilege, the waiver extends to undisclosed Page 23 1 believe the Florida, Power & Light case is 2 directly on point, 632 So.2nd 696, and even if 3 individual documents are not work-product the 4 selection process itself represents defense 5 counsel's mental impressions and legal opinion 6 as to how the evidence and the documents relate 7 to the issues and the defense, defense is in 8 litigation. So that's fairly clear. 9 And as to Federal Rule of Evidence 502-D, 10 the ambit and the policy behind that rule is 11 pretty clear particularly in the author 12 comments and in the following subsections from 13 502-D which protect exchanges of information 14 between defense counsel and the federal and 15 state local governments. 16 Thank you, your Honor. 17 THE COURT: All right. Thank you both. 18 As far as Request Number 2, all evidence, 19 documents, statements, information, DVD, CD's, 20 and other information provided to the Defendant 21 Epstein or his attorneys in discovery by the 22 Palm Beach State Attorney's Office, in that 23 particular instance, I am going to find that 24 based upon the affidavit filed that there is a 25 work-product privilege in light of the fact Page 22 communication, and it goes on, when the waiver 2 is intentional, the disclosed or undisclosed 3 communication or information concerning the 1 same subject matter and they ought in fairness 5 to be considered together. 6 This is information that intentionally was 7 divulged from Mr. Epstein to the U.S. 8 Attorney's office to get a better deal and from 9 the U.S. Attorney's office to Mr. Epstein 10 presumably to convince him to plead guilty 11 which he ultimately did. 12 Either way that is information that has 13 already been exchanged. There is no 14 attorney-client or work-product privilege 15 attached to it and there is no Fifth Amendment 16 privilege attached to it. 17 THE COURT: All right. Thank you both. 18 MR. PIKE: Judge, may I briefly respond to 19 two things? 20 THE COURT: It's not typically how we do 21 things, Mr. Pike, but if it's critical I will 22 allow you to do that. 23 MR. PIKE: Very quickly, Your Honor, and I 24 appreciate that. 25 Relative to the work-product information I Page 24 1 that Mr. Goldberger, in lieu of a receipt of a 2 demand for discovery by the state, 3 hand-selected documents and those constitute in 4 this Court's view his mental impressions. S 1 will state for the record I am not 6 entirely comfortable with that ruling because 7 it would be, or at least could be construed as 8 somehow allowing a crafty defense attorney, and 9 I am not using that term disrespectfully, but 10 nevertheless, someone to be able to go in and 11 hand pick these documents and always, 12 therefore, trump this type of Fifth Amendment 13 analysis. 14 And when I say this type of Fifth 15 Amendment analysis, I am directly referring to 16 the analysis of Magistrate Judge Johnson that 17 essentially begins on Page 8 of the order dated 18 February 4, 2010. 19 But because there has not been an 20 effective argument contrary to the reservation 21 of the work-product privilege or the assertion 22 of same, f am going to find that in this 23 particular circumstance and only dealing with 24 the Palm Beach State Attorney's office, that 25 the work- roductiivil, would adhere; that 6 (Pages 21 to 24) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hooldne (601-0514784934) $1190es3-6636-47cl•a2dd-d6f2306779ff EFTA01082639 Page 25 1 is, of course, without prejudice to the 2 Plaintiff subpoenaing or attempting to subpoena 3 the records directly from the State Attorney's 4 Office. 5 As far as the remaining documents in 6 Request Number 2, and to all of those in 7 Request Number 1, the Court follows the 8 analysis of Magistrate Judge Johnson in the 9 well-reasoned order in this Court's view. That 10 begins again on Page 8. 11 1 will read into the record some the 12 operative portions: Plaintiffs Motion to 13 Compel as it relates to the first category of 14 documents consisting of documents the federal 15 government gave to Epstein in the course of its 16 plea discussions with him is granted. The law 17 is well established that the Fifth Amendment 18 privilege against self-incrimination does not 19 extend to documents whose existence is known to 20 the government or is a foregone conclusion, 21 citing Fisher versus U.S., 425 U.S. at 410; 22 United States versus Hubbell, 530 U.S. 27, 44; 23 and United States versus Ponds, 454 F.3d, 313 24 and 325. 25 Thus, while the Fifth Amendment covers Page 27 1 quote, in an attempt to get around this settled 2 principle of law, Epstein argues that forcing 3 him to give Plaintiff the discovery produced by 4 the government would implicate the Fifth 5 Amendment in that such production might 6 disclose witnesses helpful to Epstein. 7 And I am going to omit the citations for 8 the record. This argument misses the point. 9 As Plaintiff correctly observes the question is 10 not whether the government's documents have 11 information that might be harmful to Epstein's 12 defense, indeed, a reasonable presumption would 13 be that the documents do contain information 14 harmful to Epstein and that is precisely why 15 the government was showing Epstein the 16 documents in the first place; instead the only 17 pertinent question is whether turning over the 18 government's documents to Plaintiff somehow 19 forces Epstein to provide testimony to the 20 government in contravention of the privilege 21 against self-incrimination guaranteed by the 22 Fifth Amendment. This question can only be 23 reasonably answered in the negative. 24 And again without reading in full Judge 25 Johnson's analysis, I would adopt same and Page 26 1 situations where the act of producing documents 2 has communicative aspects of its own wholly 3 aside from contents of the papers produced, 4 citing to Fisher, the doctrine does not apply 5 when the government has prior knowledge of 6 either the existence of the whereabouts of the 7 documents produced, reciting to Hubbell. 8 Other requests seek production of 9 documents the government itself gave to Epstein 10 making the government's prior knowledge of 11 documents sought an obvious and undeniable 12 foregone conclusion. As such Epstein cannot 13 reasonably and in good faith argue that in 14 producing these documents to Plaintiff he will 15 be incriminating himself. Cite to the case of 16 In re grand Jury Subpoena, 383 F.3d 905 and 17 910, noting there can be no self-incrimination 18 by production where the existence and location 19 of the documents are foregone conclusion and 20 the claimant adds little or nothing to the sum 21 total of the government's information by 22 conceding that he is, in fact -- strike that. 23 By conceding that he, in fact, does have the 24 documents. 25 Judy Johnson goes on to state that, 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 Page 28 grant the Plaintiffs motion as to all of the materials other than what the Court has deemed work-product and that constitutes those documents that Mr. Goldberger hand picked from the State Attorney's Office here in Palm Beach. Again that is without prejudice to a direct subpoena being issued to the State Attorney's office relative to their file and will deal with any objections they may have and as to any victims or anything of that nature, whether they must attempt to protect, if applicable, in any such statements. MR. EDWARDS: Your Honor, just in that regard would I be permitted to send an interrogatory asking roughly how many documents? 1 mean, because now I am thinking what if he has hand selected the entire file but for one document. THE COURT: Well, I mean. that's what I was going to ask you, how you want to go about that because I think that I will require -- I think I will appropriately require a privilege log to be prepared by Mr. Goldberger that will -- without necessarily identifying each of the documents so as to create an invasion of 7 (Pages 25 to 26) a I PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601.051.976.2934) 51190as3-663647c1-a2dd-det2306779ft EFTA01082640 Page 29 1 the work-product privilege -- at the very least 2 provide the number, the dates of same, and the 3 general nature of same, statement of witness, 4 statement of alleged victim, things of that 5 nature of how they should be titled. 6 MR. EDWARDS: Okay. 7 THE COURT: They don't have to 8 specifically state who the alleged witness or 9 who the alleged victim was only so that the 10 Plaintiff has the opportunity to review the 11 extent, nature, and number of documents that 12 have been reviewed, and therefore, at least get 13 the information in that respect from the 14 Defendant. 15 MR. EDWARDS: Thank you, Your Honor. 16 MR. PIKE: Your Honor, just so I am clear, 17 relative to the adoption of Judge Magistrate 18 Johnson's order -- 19 THE COURT: Sure. 20 MR. PIKE: -- would Your Honor also adopt, 21 and I think you attempted to do so at the end 22 there, Judge Johnson's analysis relative to 23 Federal Rule of Evidence 408, 410, and 502? 24 THE COURT: Let me go back to the order 25 for a moment, please. 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 Page 31 CERTIFICATE STATE OF FLORIDA COUNTY OF PALM BEACH I, Cynthia Hopkins, Registered Professional Reporter and Florida Professional Reporter, Slate of Florida at large, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true and complete record of my stenographic notes. Dated this 2nd day of June, 2010. C: Cynthia Hopkins, RPR, Job #2219 Page 30 1 Yes, as Judge Johnson pointed out and I 2 reviewed last night, she is ruling that these 3 materials are available for discovery under the 4 broad federal discovery rules and not 5 necessarily admissible, so I will adopt that 6 same rationale as well. 7 MR. PIKE: Your Honor, one more question: 8 As we discussed prior to the hearing is Judge 9 Magistrate Johnson's ruling is under appeal 10 right now. How do we deal with that in your 11 courtroom relative to your adoption today? 12 THE COURT: Well, again, I will give you 13 30 days to produce it, and if you seek to take 14 it up on certiorari, you have the time to do 15 that. 16 MR. EDWARDS: Thank you, Your Honor. 17 THE COURT: Okay. Thank you very much 18 guys and have a good rest of the week. 19 MR. EDWARDS: All right. Hope you feel 20 better. 21 THE COURT: I will. 22 MR. PIKE: Thank you, Judge. 23 THE COURT: Thanks madam court reporter ad, 24 well. 25 (The hearing was concluded.) 8 (Pages 29 to 31) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-061-976-2934) 61190aa3.6636.47c1-a2dd-d6f2306779ff EFTA01082641