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Cc: "Jones, David (USANYS)"
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BTW, I probably don't need to tell you, our Touhy communications with VB are probably disclosable as Giglio
info.
Cc: Jones, David (USANYS)
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John,
Per our call yesterday, please find attached an updated letter responding to the Touhy request from the Epstein victim.
The Maxwell team is okay with this version of the letter. Please let me know if this is what you had in mind, or happy to
discuss/change things if not.
Thanks,
Steven
Cc: Jones, David (USANYS).
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John,
(USANYS)
Please find attached a letter responding to a Touhy request from an Epstein victim and the documents to be produced
with it. The Maxwell team has signed off on this response. We anticipate that requester's counsel understands that the
government has additional documents here and may press on why more are not being released. To attempt to address
that issue up front, the letter notes that documents governed by 6(e) cannot be produced.
Please let us know if you have any concerns.
Thanks,
Steven
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John,
We have received another informal Touhy inquiry from an Epstein victim. Please find attached a letter to victim's counsel,
outlining the Touhy process. This is basically the same letter we sent to Roberta Kaplan at the outset of the prior Touhy
process. We intend to proceed along the same lines with this request as with the prior request. Please let me know if you
have any edits or concerns.
Thanks,
Steven
To:
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Kochevar, Steven (usANvs)
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Thanks for the further info. With apologies, I now think Steven was right in the first place: if plaintiffs ask us for
the does and we don't have them then I guess it does make most sense for us to simply say, we don't have them,
try SDFla and/or NDGA. SDFLa and NDGA may say, pound sand, and if plaintiffs subpoena one or the other of
those districts, then we see if the subpoenaed district Touhy-refers the subpoena to Geoff as the "responsible"
USA, and take it from there. So I am OK with Steven's plan for dealing with plaintiff's further requests as he
outlines in his May 20 email.
From:
>; McEnany, John (USANYS)
Cc:
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We do possess the FBI investigative files from the SDFL investigation. What we do not have, and avoided obtaining for a
variety of reasons (including conflict issues, discovery issues, and a desire not to create even an appearance that we were
stepping into the shoes of a district that was unable to prosecute due to the prior non-prosecution agreement) are any
files specifically from the U.S. Attorney's Office in SDFL. As relevant here, for example, we do not have any materials
relating to the purported immunity discussions relating to Lacerda; we have not identified any such materials in the FBI
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files, and we assume that any discussions or correspondence on that issue likely would have been between defense
counsel and the SDFL USAO.
On the civil side, I can't immediately think of a reason you guys shouldn't be able to make a request to either SDFL or
NDGA, whichever is the right entity, for any such materials. We've just avoided literally any contact with SDFL on the
criminal side.
Let us know if any additional questions on this at all, we realize it's a little complex.
(USANYS)
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Understood. Thanks, John. David Jones thought this approach was reasonable, but I'll check with Sarah too. Overall, I
don't think we have a ton of precedent for referring folks to another USAO on a Touhy, and certainly not to a third USAO
in the referral context.
Some information that might be useful in this that I don't have a complete understanding of—are the materials from the
S.D. Fla. investigation available to us? As in, have we ever seen or used them? If not, is there a particular reason for that?
We may be in the odd situation of technically having some purview over those materials by virtue of the Touhy regs, but
without access to them. But please let me know if I'm overlooking some dimension of our cooperation (if any) with the
other USAOs.
Thanks,
Steven
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I have some hesitation on just referring them to NDGa for the SDFla investigative stuff. First, under Touhy
section 16.22(6), the responsible USA is the USA for the district "where the issuing authority" is located. They
actually have an action filed in this district, no? Like it or not, we may be stuck with dealing with their requests
for does from the Florida investigation. Stephen, you might want to consult wiser Touhy heads in civ div, like
Sarah for instance. Also, it is possible that Muhry does not fall within the scope of SDFla's recusal. I can't see
NDGA racing to embrace doing Touhys on this.
(USANYS)
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All,
Closing the loop on this: we produced documents responsive to an Epstein victim's Touhy request about a month ago. The
requesters got back to us (by phone) with a fairly lengthy list of follow-up questions about what we produced and
additional/related demands. We don't have much responsive to many of their follow-ups, or do not think it would be
appropriate to produce additional material they're seeking—for example, materials that are part of the ongoing
investigation. Alex and I intend to have a call with requester's counsel to explain to them that we will not be producing
anything further at this time. At this point, we don't plan to send them anything else in writing.
One small wrinkle: they have asked us for materials from S.D. Fla.'s investigation (which we don't have) and asked whether
they need to submit a separate request to that office. We intend to tell them that N.D. Ga. has stepped into the shoes of
S.D. Fla. For Epstein purposes, that they can submit a request there (or to S.D. Fla.) for the materials they're seeking, and
possibly provide them with a contact at N.D. Ga. if they ask.
Please let us know if you have any concerns. We hope that this will be the last step on this request.
Thanks,
Steven
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I take it we fully know that Jane Doe is Maria Lacerda?
I had a little pause on handing out the GJ subpoena, but since it's something previously disclosed to her, I can't
see much of a problem disclosing it to her again.
So I don't have a problem with you sending this out. Thanks for your work on this, Steven.
-John
);
(USANYS)
Cc:
(USANYS)
All,
)
Please find attached a letter responding to the Touhy request for documents related to Jeffrey Epstein submitted by a
victim who is a plaintiff in a civil suit against Epstein's estate. I am also attaching the documents to be produced in
response to the request. Please let me know if you have any edits or concerns. If not, I plan to contact requester's counsel
next week, let them know about the production, and send them the letter and the documents. I'm also attaching their
request letter here. (Alex, Alison, and Maurene are signed off on the letter and gathered the documents.)
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Thanks,
Steven
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Steven,
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Thanks very much for drafting this, and I think generally it looks great. My only small thought would near the end, in the
penultimate paragraph, where I'd suggest replacing the first two sentences with (something like): "My understanding is
that you may intend to make a formal written request pursuant to the above-described regulations. [If you
choose to submit . .
I say that only because the current language makes it sound like they were supposed to submit
something in writing, or that they otherwise erred, when in fact what they actually asked for was just an explanation of
the appropriate form in which to make a formal request—which they can do consistent with the regulations set forth in
the letter. Does that sound alright? And of course on any of these I also entirely defer to John.
thanks again,
Alex.
To:
Cc: McEnany, John (USANYS)
>;
All,
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(USANYS)
(USANYS)
Please find attached an initial letter to Kaplan Hecker re: the request for information related to Epstein. Please let me
know if you have any edits or concerns. Once I have sign-off, I'll send to Robbie Kaplan (by mail and at
rkaplanPkaplanheckencom or let me know if I should use a different address).
Alex, assuming there are not huge changes to be made here, I think the letter/email could just go out as the next contact
with Robbie on this, but I leave it up to you if/how you want to separately give her notice that it's on the way.
Thanks,
Steven
To:
Cc: McEnany, John (USANYS)
>;
(USANYS)
(USANYS)
EFTA00104396
Alex,
All sounds good to me—thanks for the call and note. I'll circulate a draft of the initial letter.
Thanks,
Steven
From:
Cc: McEnany, John (USANYS)
(USANYS)
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Steven,
)
(USANYS)
Thanks for talking with me this evening about this, we appreciate it. To briefly memorialize our discussion, and to loop in
everybody on the case on the criminal side, you'll be the point person for requests from civil plaintiffs / victims in
connection with Epstein lawsuits, and we'll work with you on those requests given our knowledge of the relevant facts
and materials.
In terms of this first question from the plaintiff, which was essentially presented as a question of how they should go
about making a request for certain materials possibly in the possession of the Government, we'll plan to take a look at the
letter you draft that will essentially set forth the requirements for making a Touhy request (e.g., similar to, or including,
the kind of information in John's example below), and separately sometime early next week I'll let plaintiff's counsel
(Robbie Kaplan at Kaplan & Hecker) know that they can expect to hear from someone in our Civil Division, within
approximately a week or so (of when that conversation occurs), and that we anticipate that communication will include
the relevant requirements of making such a request.
Please let me know if I'm forgetting anything, thanks again, and talk soon.
Alex.
To:
Alex, Steven,
; Kochevar, Steven (USANYS)
I spoke to Jeffrey O about continuing to use Steven as the POC to outsiders for Touhy requests for information
relating to Jeffrey Epstein. (Thank you Steven!) Alex, please give Steven a call. Steven, FWIW, following is a
markup of a "please give us a Touhy statement" email that I have used in the past. Alex anticipates that we will
be getting additional requests stemming from civil litigation by alleged victims, so it would be useful to have
some consistency here. Alex knows that the criminal AUSAs will have to do all the work digging for any
pertinent information, but it will be useful to have another AUSA handle the actual communications, particularly
since the criminal AUSAs may be dealing with the alleged victims as victim-witnesses in ongoing criminal
matters. Thanks again,
-John
Here's some draft language you may or may not find useful:
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Dear XXX:
I am the Assistant U.S. Attorney who will be handling the request that you made to AUSA Rossmiller for certain
information relating to Jeffrey Epstein. To assist us in evaluating your request, we ask that you provide us with a
detailed written statement of the litigation for which you seek this information; the pertinence of the information
sought to your litigation; and the availability (or absence) of means in that litigation, including discovery, to
obtain the information in question. This statement should be relatively thorough—Le., it should not assume that
the persons reviewing your request will have any particular familiarity with the litigation in question.
For your information, following are the general principles that govern disclosure, in unrelated litigation, of
information obtained during the course of our official duties. Specifically, the response of federal agencies to
subpoenas and other third-party discovery demands is largely governed by Department of Justice regulations,
commonly referred to as Touhy regulations. See generally 5 U.S.C.A. § 301; United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951) (authorizing such regulations). These regulations dictate the procedure for obtaining
a government employee's testimony or government records in state or federal proceedings. The Department of
Justice has its own Touhy regulations that set out the procedure it follows in responding to demands for
"production or disclosure" of information from the Department and its employees for use in state or federal court
proceedings. See 28 C.F.R. §§ 16.21-16.29. These Touhy regulations channel review of such demands to the
responsible United States Attorney, and then provide a set of procedures for the United States Attorney to follow
when considering such demands. See id. §§ 16.22(b), 16.24. These regulations apply to both current and former
Government employees. See id. §§ 16.21(a), 16.22(a), 16.28. The Department's Touhy regulations prohibit any
Department employee from testifying or producing documents in a case in which the Government is not a party,
even in response to a subpoena, "without prior approval of the proper Department official in accordance with §§
16.24 and 16.25 of this part." Id. § 16.22(a). For matters concerning our Office, the proper official is the United
States Attorney for the Southern District of New York. Id. § 16.22(b). To facilitate the process of determining
whether such approval will be given, a party seeking such information must provide this Office with an affidavit
or written statement setting forth the testimony sought and its relevance to the proceeding for which it is sought.
See id. § 16.22(c), (d). We will then evaluate the request in light of governing rules of procedure in the case for
which the information is sought, substantive law, and privilege; specific statutory prohibitions such as may apply
to federal tax information, grand jury matters, or classified information; and the requirement of Deputy or
Associate Attorney General approval where the disclosure would identify a confidential source over the
objection of the agency or source, would interfere with enforcement proceedings or reveal sensitive investigative
techniques, or would reveal trade secrets without the owner's consent. See 28 C.F.R. § 16.26. To the extent
information sought derives from a criminal investigation, such information may be subject to, inter alia, the law
enforcement privilege. The law enforcement privilege protects against the disclosure of information that would
"reveal a confidential source or informant, .
. reveal investigatory records compiled for law enforcement
purposes . . . interfere with enforcement proceedings[,] or disclose investigative techniques and procedures . . .."
Id. § 16.26(b)(4)-(5); see also In re City of New York, 607 F.3d 923 (2d Cir. 2010); In re Dep't of Investigation of
the City of New York, 856 F.2d 481, 484 (2d Cir. 1988); Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998) ("The
federal law enforcement privilege is a qualified privilege designed to prevent disclosure of information that
would be contrary to the public interest in the effective functioning of law enforcement"), aff'd, 203 F.3d 53
(D.C. Cir. 1999). The Government's privilege not to disclose material contained in the files of criminal
investigations is well-recognized. See In re Department of Investigation of the City of New York, 856 F.2d at 483;
Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984); Kinoy v. Mitchell, 67
F.R.D. 1, 11 (S.D.N.Y. 1975) (discussing privilege for files compiled in connection with a criminal
investigation). To the extent documents are sought for use in state court proceedings, note that the Department's
decision whether to authorize testimony or produce documents is not reviewable in state court. Review of the
agency's decision may only be had pursuant to the federal Administrative Procedure Act in federal court. See US.
EPA v. Gen. Elec. Co., 197 F.3d 592, 598-99 (2d Cir. 1999) (review pursuant to Administrative Procedure Act),
modified in part, 212 F.3d 689 (2d Cir. 2000); 5 U.S.C. § 702 (sovereign immunity waived to permit
Administrative Procedure Act only in "a court of the United States"). Federal sovereign immunity bars any
proceeding in state court to enforce a subpoena or otherwise compel testimony or production of documents. See
Louisiana v. Sparks, 978 F.2d 226, 234-36 (5th Cir. 1992); Boron Oil Co., 873 F.2d at 69-71; see also, e.g.,
People v. Rodriguez, 546 N.Y.S.2d 861, 862-63 (1st Dep't 1989) (holding that "state courts are without authority
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to compel production of such files without the federal government's consent"); People v. Carbonaro, 427
N.Y.S.2d 701, 702-03 (Kings Co. Sup. Ct. 1980) (quashing subpoena served on federal employee where
Department of Justice ordered him not to comply); Jacoby v. De!finer, 51 N.Y.S.2d 478, 479 (N.Y. Co. Sup. Ct.
1944), aff'd, 63 N.Y.S.2d 833 (1st Dep't 1946).
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