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CASE No. 08-80736-CIV-MARRA/JOHNSON
JANE DOE 1 AND JANE DOE 2,
Plaintiffs
v.
Defendant
Jeffrey Epstein hereby moves, pursuant to Fed. R. Crim. P. 24(a)(2) and 24(b)(1)(B), that
he be permitted to intervene for the limited purpose of protecting his interests in the secrecy of
matters which occurred before the federal grand juries of which he was the target. On July 19,
2013, the government filed a privilege log in response to this Court's order of June 19, 2013
(Doc. 190), in which it asserted that it could not disclose an array of materials because of the
prohibition against disclosure of matters occurring before the grand jury set forth in Fed. R.
Crim. P. 6(e). The Court's order gives the plaintiffs 30 days after the filing of the government's
privilege log to move to compel production of materials with respect to which the government
has asserted a privilege or bar to disclosure. If the plaintiffs move to compel production of any
materials as to which the government has asserted the Rule 6(e) disclosure prohibition, Mr.
Epstein has enforceable private interests in the continued secrecy of matters which occurred
before the two grand juries which investigated the issue of whether he committed indictable
federal offenses and should be permitted to intervene to ensure that those interests are protected.
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If he is permitted to intervene, he will comply with the time and page limitations for pleadings
set forth in the Court's June 19, 2013, order.
I.
A party may intervene as of right under Rule 24(a) if "(I) the application to intervene is
timely; (2) the party has an interest relating to the property or transaction which is the subject
matter of the action; (3) the party is situated so that disposition of the action, as a practical
matter, ma impede or impair its ability to protect that interest; and (4) the party's interest is
represented inadequately by the existing parties to the suit." Chiles v. Thornburgh, 865 F.2d
1197, 1213 (1 I th Cir. 1989). The circumstances here easily satisfy all four elements of the
standard.
A.
Timeliness.
In assessing the timeliness of motions to intervene, courts are to consider "(1) the length
of time during which the would-be intervenor knew or reasonably should have known of his
interest in the case before he petitioned for leave to intervene; (2) the extent of prejudice to the
existing parties as a result of the would-be intervenor's failure to apply as soon as he knew or
reasonably should have known of his interest; (3) the extent of prejudice to the would-be
intervenor if his petition is denied; and (4) the existence of unusual circumstances militating
either for or against a determination that the application is timely." United States v. Jefferson
County, 720 F.2d 1511, 1516 (11th Cir. 1983). "Timeliness" is "not limited to chronological
considerations but is to be determined from all the circumstances." Stalhvorth v. Monsanto Co.,
558 F.2d 257, 263-64 (5th Cir. 1977). Among the circumstances which must be considered is
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"the purpose for which intervention is sought." National Resources Defense Council v. Costle,
561 F.2d 904, 907 (D.C.Cir. 1977).
Mr. Epstein's motion is timely because it seeks intervention only for the limited purpose
of opposing disclosure to plaintiffs of matters which occurred before the grand juries at issue.
That issue did not become ripe until July 19, 2013, when the government filed its privilege log
asserting that the disclosure of various listed materials is prohibited by Rule 6(e), which first
provided notice to Mr. Epstein that his interests in maintaining the secrecy of grand jury matters
were at issue. Plaintiffs will not be prejudiced by the requested intervention, as Mr. Epstein has
promptly moved to intervene, and plaintiffs must in any event litigate the Rule 6(e) issue with
the government if they choose to challenge the government's reliance on Rule 6(e) through a
motion to compel. Mr. Epstein, on the other hand will be severely prejudiced if his motion is
denied, as he will be denied the opportunity to seek to protect his private interests in the matter.
See Section I(B), infra.
B.
Mr. Epstein Has an Interest Relating to the Property or Transaction Which
Is the Subject Matter of the Action.
Maintaining the confidentiality of grand jury proceedings protects several important
interests of the government and of private citizens." In re Grand Jury Proceedings, 610 F.3d
202, 213 (5th Cir. 1980)(emphasis added). Rule 6(e) prohibits disclosure of matters occurring
before a grand jury "to protect the secrecy which is critical to the grand jury process," including
"protect[ion of] the reputation of a person under investigation who is not indicted." United States
v. Eisenberg, 711 F.2d 959, 961 (11th Cir. 1983). See, e.g., Application of Dow Jones & Co.,
Inc., 842 F.2d 603, 611 (2d Cir. 1988)("Not the least important consideration is to protect the
good name and reputation of those investigated, but not indicted, by the grand jury"); Lucas v.
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Turner, 725 F.2d 1095, 1100 (7th Cir. 1984)("One of the principal reasons for preserving the
secrecy of grand jury proceedings is to protect the reputations of both witnesses and those under
investigation"); In re Grand Jury Investigation, 610 F.2d at 213 ("The rule of secrecy avoids
injury to the reputation of those persons accused of crimes whom the grand jury does not
indict").
So important are the private interests at stake in grand jury secrecy that private parties
may bring civil actions for injunctive relief to prevent future violations of Rule 6(e) by
government actors subject to the Rule 6(e) disclosure prohibition. See, e.g., United States v.
Barry, 865 F.2d 1317 (D.C.Cir. 1989); United States v. Blalock, 844 F.2d 1546 (11th Cir. 1988);
Eisenberg, supra. If, as in these cases, private individuals may be entitled to relief after there has
been a Rule 6(e) violation, then surely a private individual has recognizable and important
interests in preventing a Rule 6(e) violation from occurring in the first place. The materials to
which the government has asserted the Rule 6(e) bar to disclosure include materials which would
disclose substantial portions of the evidence presented to the grand jury, both documentary and
testimonial, and draft indictments of Mr. Epstein, all of which relate to allegations, now more
than five years old, of a highly sensitive nature which Mr. Epstein never had the opportunity to
refute and which, if the non-prosecution agreement remains in force, as it contractually and
constitutionally should, he will never refute. He has a profound interest in opposing the release to
plaintiffs of this grand jury material, which can only redound to his severe prejudice and injury.
Mr. Epstein's interests assume enhanced importance in light of the fact that the content of
most, if not all, of the materials to which the government has asserted the Rule 6(e) disclosure
prohibition are fundamentally irrelevant to the issues before the Court in plaintiffs' CVRA
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action, namely, whether the government violated their rights under the CVRA. While it may be
material for the plaintiffs to know, for example, that the grand jury investigation continued
beyond September 24, 20017, and apparently into 2009, as the privilege log reveals, the details
of the grand jury's investigation — such as who testified before the grand jury, who the grand jury
was investigating in addition to Mr. Epstein, what documents were produced in response to
grand jury subpoenas, and what the content of those documents did or did not reveal — is not
information which plaintiffs need or to which they should be permitted access to support their
effort to prove that the government violated their CVRA rights.
C.
Mr. Epstein Is Situated So That Disposition of the Action, as a Practical
Matter, May Impede or Impair His Ability to Protect That Interest.
While Mr. Epstein might theoretically be able to bring a separate civil action seeking to
enjoin any future violation of the grand jury secrecy requirement by the government, the issue is
before the Court now and will be resolved by the Court if the plaintiffs move to compel
production of any of the materials with respect to which the government has asserted the Rule
6(e) disclosure prohibition. As a practical matter, therefore, the Court's ruling on any motion to
compel filed by plaintiffs will determine Mr. Epstein's interests as well as those of the
government, and he should be permitted to intervene to oppose any such disclosures.
D.
Mr. Epstein's Interests in the Continued Secrecy of Matters Which Occurred
Before a Grand Jury Would Not Be Adequately Represented by the Existing
Parties to the Suit.
Mr. Epstein and the government may share a common goal of opposing disclosure of
matters occurring before the grand jury, but their interests, as well as what they would bring to
the Court on the issue, vary substantially. Although the Eleventh Circuit has said that "Where is
a presumption of adequate representation where an existing party seeks the same objectives as
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the interveners," Stone v. First Union Corp., 371 F.3d 1305, 1311 (11th Cir. 2004), that
presumption is a "weak" one, id.;"[i]nterveners need only show that the current [party's]
representation 'may be inadequate,' and the burden for making such a showing is 'minimal.'" Id.
(emphasis added), quoting Clark v. Putnam County, 168 F.3d 458, 461 (11th Cir. 1999). See,
e.g., Georgia v. United States Army Corps of Engineers, 302 F.3d 1242, 1255 (11th Cir.
2002)("The proposed intervenor has the burden of showing that the existing parties cannot
adequately represent its interests, but this burden is treated as minimal"); Federal Say. and Loan
Ins. Corp. v. Falls Chase Special Taxing District, 983 F.2d 211, 216 (11th Cir. 1993)("The
proposed intervenor's burden to show that their interests may be inadequately represented is
minimal" (emphasis in original)).
The government has its own institutional interests in preserving grand jury secrecy, but
those interests differ from the private interests of Mr. Epstein. The government has several
interests protected by the grand jury secrecy requirement:
First, if preindictment proceedings were made public, many prospective witnesses would
be hesitant to come forward voluntarily, knowing that those against whom they testify
would be aware of that testimony. Moreover, witnesses who appeared before the grand
jury would be less likely to testify fully and frankly, as they would be open to retribution
as well as to inducements. There would also be the risk that those about to be indicted
would flee or would try to influence individual grand jurors to vote against indictment.
In re Sealed Case No. 98-3077, 151 F.3d 1059, 1070 (D.C.Cir. 1998), quoting Douglas Oil Co.
of California v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979). Mr. Epstein, on the other
hand has his own personal privacy and reputational interests in maintaining the secrecy of
matters which occurred before the grand jury, which belong to him individually and which the
government is uncertain to stress or even assert in opposition to disclosure or to adequately
protect. See Matter of Special March 1981 Grand Jury, 753 F.2d 575, 578 (7th Cir.
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1985)(contrasting "institutional interests," "which range from not forewarning the targets of the
grand jury's investigation to protecting witnesses and grand jurors from reprisals" with "personal
[and] private interests, mainly in reputation, that the ex parte nature of the grand jury puts at risk:
for example, the reputation of a person accused of wrongdoing by a witness before the grand
jury").
The divergence of interests between the government and Mr. Epstein is illustrated by the
government's privilege log itself. While government was required to file the privilege log on the
public docket, Doc. 190 at 2, and to provide certain specified information, including the
"general subject matter of each withheld document, id., Rule 26.1(g), to which the Court cited,
expressly provides that the information specified in the rule is to be provided "unless divulgence
of such information would cause disclosure of the allegedly privileged information" (emphasis
added). Although Mr. Epstein does not wish to be unduly critical of the government's efforts to
comply with the Court's order, the government's privilege log has itself breached the grand jury
secrecy requirement, going beyond "general subject matter" to reveal the names of entities and
individuals which were the subject of grand jury subpoenas and which produced documents and
records relating to Mr. Epstein pursuant to those subpoenas, see Doc. 221-1 at 1, 2, 3, 4, 6, 7, 8,
10, the name of an individual for whom immunity was requested, id. at 11, and the names of
subjects and targets of the grand jury's investigation, id. at 4, 6, 7, 14, as well as Mr. Epstein's.
The Government's privilege log even referenced the existence of draft and signed indictments, id
at 11, 18. This is all information falling within the core grand jury secrecy protection mandated
by Rule 6(e). See, e.g., Hodge v. F.B.I., 703 F.3d 575, 580 (D.C.Cir. 2013)(identities of
individuals who received grand jury subpoenas fell within Rule 6(e)); In re Sealed Case, 192
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F.3d 995, 1004 (D.C.Cir. 1999)("[I]t would ordinarily be a violation of Rule 6(e) to disclose that
a grand jury is investigating a particular person"); In re Grand Jury Proceedings, 851 F.2d 860,
866-67 (6th Cir. 1988)("[C]onfidential documentary information not otherwise public obtained
by the grand jury by coercive means is presumed to be `matters occurring before the grand jury'
just as much as testimony before the grand jury"); United States v. Velez, 344 F.Supp.2d 329,
332 (D.P.R. 2004)(materials containing names of targets of grand jury investigation fell within
Rule 6(e)); United States v. Diaz, 236 F.R.D. 470, 479-80 (N.D.Cal. 2006)(grand jury subpoenas
duces tecum fall within Rule 6(e)); United States v. White Ready-Mix Concrete Co., 509 F.Supp.
747, 750 (N.D. Ohio 1981)(names of grand jury witnesses fall within Rule 6(e)). The
government, however, despite the fact that the identities of the subpoenaed entities and
individuals and the named targets are subject to the grand jury secrecy requirement of Rule 6(e),
chose to disclose the names rather than refer to these individuals and entities by a general
descriptive term such as "subpoenaed entity" or "target" or "subject" or "witness," much as it did
in using the term "victim" rather than name the individual, which would have fully complied
with the Court's order. The government's privilege log plainly shows that Mr. Epstein cannot
rely on the government to protect his interests in maintaining the required secrecy of the grand
jury proceedings. Ultimately, the government's interests lie in prevailing in the plaintiffs'
CVRA litigation against it, while, in the context of this motion to intervene, Mr. Epstein's
interests lie in protecting his personal privacy and guarding against the personal and professional
injury which would be the inevitable consequence of the release of information which Rule 6(e)
commands should remain secret.
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II.
The Court need not reach the issue of permissive intervention, as Mr. Epstein so plainly
satisfies the criteria for intervention as of right. For the same reasons addressed in the preceding
section, Mr. Epstein "has a claim or defense that shares with the main action a common question
of law or fact." Fed. R. Civ. P. 24(b)(1)(B). That common question of law or fact is whether Rule
6(e) prohibits disclosure to plaintiffs of the grand jury materials identified by the government in
its privilege log.
CONCLUSION
For all the foregoing reasons, Mr. Epstein's motion to intervene is timely and should be
granted as of right under Rule 24(a)(2). Alternatively, permissive intervention should be granted
under Rule 24(b)(1)(B).
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