UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA/JOHNSON JANE DOE I and JANE DOE 2, Plaintiffs, v. UNITED STATES OF AMERICA, : Defendant. EPSTEIN'S REPLY IN SUPPORT OF SUPPLEMENTAL PROTECTIVE ORDER There is no doubt that the Eleventh Circuit has held that Epstein's plea negotiation and settlement communications are not privileged. We acknowledged this throughout our initial filing. However, there also can be no doubt that despite these negotiations not being privileged, they are still confidential by longstanding tradition. And confidential material can be filed under seal, even if it is relevant or even "central," as the plaintiffs say, to an issue in the case. The question is not whether the material is relevant, but whether good cause exists to temporarily seal this confidential information pending a determination by the court as to whether all or part or none of the communications should be made public. The best example of good cause for keeping these materials sealed is the claim by the plaintiffs that the settlement communications need to be publicly filed because they show that Mr. Epstein's lawyers "pushed prosecutors to agree to a confidentiality provision that illegally kept the non-prosecution agreement secret from the victims." [DE 298 at 6]. Yet the 23-page defense letter that the plaintiffs propose to file publicly with their opposition to Professor Dershowitz's intervention makes no mention of any confidentiality agreement or any agreement EFTA00583385 concerning keeping the NPA secret. Indeed, the letter makes no mention at all of notification to the plaintiffs. There is good cause to issue the protective order we have requested until the Court can make a considered determination of whether these traditionally confidential plea negotiations should be made part of this public record. The relief we seek is temporary, to maintain the status quo until the Court has determined that the balance weighs in favor of unsealing a letter relating to an issue being disputed in good faith. FTC v. Abbvie Prod. LLC, 713 F.3d 54, 63 (11th Cir. 2013) ("The test for whether a judicial record can be withheld from the public is a balancing test The CVRA expressly provides that "Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." 18 U.S.C. § 3771(d)(6). The Act codifies the long-standing principle that "[t]he Attorney General and United States Attorneys retain broad discretion to enforce the Nation's criminal laws," United States v. Armstrong, 517 U.S. 456, 464 (1996), and that whether to investigate possible criminal conduct, grant immunity, negotiate a plea, or dismiss charges are all central to the prosecutor's executive function. United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000). Notwithstanding the insinuations by Plaintiffs counsel, the Non-Prosecution Agreement at issue here was negotiated at arm's length with the largest U.S. Attorney's Office in the country. The NPA was approved by the U.S. Attorney for the Southern District of Florida and thereafter was endorsed by the Department of Justice at various levels in Washington, including that of the Deputy Attorney General. There is no reality to the notion that Epstein somehow coerced the United States government into a non-prosecution agreement by improper means. There are a number of legal issues that the Court will be called upon to resolve that EFTA00583386 directly affect whether Epstein's plea negotiations are determined in the future to be "relevant" or "central" to the Court's resolution of the CVRA complaint. Although the Court has issued rulings regarding its view of the scope of CVRA rights, see eg Dkt 189, none have predetermined whether the plea negotiations leading up to the NPA are ultimately deemed to be relevant or irrelevant to any disputed issue, whether either plaintiffs possess standing to seek the rescission of the NPA, or whether the Court would agree that as a matter of law judicial review of the plea negotiations or the NPA itself would impermissibly affect not only Epstein's constitutional and contractual rights but also the separation of powers between the executive and judicial branches (as argued by the Government, see DKT 290 at 11). Respectfully submitted, BLACK, SREBNICIC, KORNSPAN & STUMPF, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, Florida 33131 Telephone (305) 371-6421 Fax (305)358-2006 By: s/Roy Black Roy BLACK, ESQ. Florida Bar No. 126088 [email protected] JACKIE PERCZEK, ESQ. Florida Bar No. 0042201 [email protected] On behalf of Jeffi•ey Epstein MARTIN G. WEINBERG, P.C. 20 Park Plaza Suite 1000 Boston, MA 02116 Telephone: (617) 227-3700 EFTA00583387 Fax: (617) 338-9538 By: s/Martin G. Weinberg MARTIN G. WEINBERG, ESQ. Massachusetts Bar No. 519480 [email protected] On behalf of Jay Epstein CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was filed by my office via CM/ECF, this 26th day of January, 2015. By: s/Roy Black Rov BLACK, ESQ. EFTA00583388