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Michael C. Miller
1114 Avenue of the Americas
www.steptoe.com
July 14, 2017
Hon. John G. Koeltl
United States District Court, Southern District of New York
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007-1312
RE:
Jane Doe 43 v. Epstein, et al.,No.17 Civ. 616 (JGK)
Dear Judge Koeltl:
Steptoe
We represent defendants Jeffrey Epstein and
("Defendants") in the above-
referenced lawsuit ("Action"). The Defendants intend to move to dismiss the Action based on,
inter alia, the failure of Jane Doe 43 ("Plaintiff") to establish personal jurisdiction over the
Defendants ("Motion to Dismiss"). The Plaintiff provided deposition testimony and produced
documents in another proceeding ("Plaintiff's Evidence") which would be dispositive of the
personal jurisdiction issue in the Motion to Dismiss. The Plaintiff's Evidence is subject to a
protective order in the other proceeding. Defendants write this letter, first, to seek the Court's
permission to file a motion requesting relief from the protective order ("Motion for Relief") or
other similar relief, and, second, to request a stay of the briefing schedule on the Motion to
Dismiss if the Court agrees to consider the Motion for Relief.
By way of additional background information, shortly after Plaintiff initiated the Action,
she was deposed in another matter pending in this District, Giuffre v. Maxwell, No. 15 Civ. 7433
(RWS) (the "Giuffre action"). During that deposition, Plaintiff gave sworn testimony which
relates in large measure to the claims in the present action, and produced documents, i.e., the
Plaintiff's Evidence. Mr. Epstein, through his counsel, as a non-party witness in the Giuffre
action, was provided with a copy of the Plaintiff's Evidence. These materials were marked
"Confidential" pursuant to the Protective Order in that case.' Under the terms of the Protective
Order, "Confidential" documents "shall not be disclosed or used for any purpose except the
A copy of the Protective Order is attached hereto as Exhibit A. Out of respect for the
provisions of the Protective Order, we are submitting this letter under seal.
EFTA00793037
Hon. John G. Road
July 14, 2017
Page 2 of 3
preparation and trial of this case." Exhibit A at 1 4. Further, any documents marked
"Confidential" must be returned or destroyed at the conclusion of the case. Id. at 1 12.
The Giuffre action was voluntarily dismissed on May 25, 2017. No. 15 Civ. 7433, docket
no. 919. Because the Plaintiff's Evidence directly relates to this Action, and to avoid risk of
spoliation in the Action, Mr. Epstein has not yet returned or destroyed the Plaintiff's Evidence
pending guidance from this Court.
We respectfully submit that the Plaintiff's Evidence provides grounds for this Court to
dispose of the Action entirely, inter alia, under Rule I2(b)(2) for lack of personal jurisdiction.
Because the Defendants have no present connection to New York upon which to confer personal
jurisdiction, personal jurisdiction over the Defendants would have to be based on tortious
conduct allegedly committed in New York. CPLR 302(a)(2). We respectfully submit that the
Plaintiff's Evidence is dispositive on the question of whether tortious conduct occurred during
the limitations period upon which Plaintiff can base personal jurisdiction, either under a four or
ten year limitations period.2
We now seek guidance so that the Court may consider these documents in support of
Defendants' Motion to Dismiss. See Pearson Educ., Inc. v. Kumar, 721 F. Supp. 2d 166, 182
M
. 2010) (a court may consider documents outside of the complaint on a motion to
dismiss for lack of personal jurisdiction under Rule 12(b)(2), as the motion "is inherently a
matter requiring the resolution of factual issues outside of the pleadings.") (citation omitted).
We respectfully submit that the Court's consideration of these documents would conserve
judicial resources and promote the interests of judicial economy, as they allow the Court to
dispose of the case at the motion to dismiss stage.
With the Court's leave, the Defendants will move this Court for relief from the Protective
Order in the Giuffre action, or for such other relief that permits the Court to consider the above-
mentioned documents in connection with the Motion to Dismiss. We also respectfully request
that Defendants be permitted to use Plaintiff's Evidence in support of the Motion for Relief to
demonstrate to the Court how Plaintiff's Evidence provides grounds for the Court to dismiss the
case in its entirety. We have attempted to meet and confer with Plaintiff's counsel in good faith
on this issue; they have not agreed to the relief we seek.
Finally, if the Court permits the Defendants to file a Motion for Relief, we ask that the
Court stay the current briefing schedule for the Motion to Dismiss pending resolution of the
Motion for Relief. Defendants do not seek to delay the present case and are prepared to file their
Motion to Dismiss within seven days of the resolution of this issue.
2 Defendants believe that the correct statute of limitations period is four years.
EFTA00793038
Hon. John G. Road
July 14, 2017
Page 3 of 3
We are available for a conference at the Court's convenience to discuss this issue further,
or to submit the documents for in camera review.
Respectfully submitted,
L(ecile6,_
Michael C. Miller
CC:
All counsel of record (via ECF)
EFTA00793039
EXHIBIT A
EFTA00793040
Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 1 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 2 of 7
United States District Court
Southern District Of New York
I
DIME• ma
z
k a
u c i
15-cv-07433-RWS
Virginia L. Giuffre,
Plaintiff,
v.
Ghislaine Maxwell,
Defendant.
X
X
Upon a showing of good cause in support of the entry of a protective order to
protect the discovery and dissemination of confidential information or information which
will improperly annoy, embarrass, or oppress any party, witness, or person providing
discovery in this case, IT IS ORDERED:
1.
This Protective Order shall apply to all documents, materials, and information,
including without limitation, documents produced, answers to interrogatories,
responses to requests for admission, deposition testimony, and other
information disclosed pursuant to the disclosure or discovery duties created by
the Federal Rules of Civil Procedure.
2.
As used in this Protective Order, "document" is defined as provided in
FED.R.Civ.P. 34(a). A draft or non-identical copy is a separate document
within the meaning of this term.
EFTA00793041
Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 2 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 3 of 7
3.
Information designated "CONFIDENTIAL" shall be information that is
confidential and implicates common law and statutory privacy interests of (a)
plaintiff [REDACTED] and (b) defendant Ghislaine Maxwell.
4.
CONFIDENTIAL information shall not be disclosed or used for any purpose
except the preparation and trial of this case.
5.
CONFIDENTIAL documents, materials, and/or information (collectively
"CONFIDENTIAL INFORMATION") shall not, without the consent of the
party producing it or further Order of the Court, be disclosed except that such
information may be disclosed to:
a. attorneys actively working on this case;
b. persons regularly employed or associated with the attorneys actively
working on this case whose assistance is required by said attorneys in the
preparation for trial, at trial, or at other proceedings in this case;
c. the parties;
d. expert witnesses and consultants retained in connection x\ith this
proceeding, to the extent such disclosure is necessary for preparation, trial
or other proceedings in this case;
e. the Court and its employees ("Court Personnel") in this case;
f. stenographic reporters who are engaged in proceedings necessarily incident
to the conduct of this action;
g. deponents, witnesses, or potential witnesses; and
2
EFTA00793042
Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 3 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 4 of 7
h. other persons by written agreement of the parties.
6.
Prior to disclosing any CONFIDENTIAL INFORMATION to any person
listed above (other than counsel, persons employed by counsel, Court
Personnel and stenographic reporters), counsel shall provide such person with
a copy of this Protective Order and obtain from such person a written
acknowledgment stating that he or she has read this Protective Order and
agrees to be bound by its provisions. All such acknowledgments shall be
retained by counsel and shall be subject to in camera review by the Court if
good cause for review is demonstrated by opposing counsel.
7.
Documents are designated as CONFIDENTIAL by placing or affixing on them
(in a manner that will not interfere with their legibility) the following or other
appropriate notice: "CONFIDENTIAL."
Discovery material designated
CONFIDENTIAL shall be identified by Bates number. To the extent practical,
the respective legend shall be placed near the Bates number.
8.
Designation of a document as CONFIDENTIAL INFORMATION shall
constitute a representation that such document has been reviewed by an
attorney for the designating party, that there is a valid and good faith basis for
such designation, made at the time of disclosure or production to the receiving
party, and that disclosure of such information to persons other than those
permitted access to such material would cause a privacy harm to the
designating party.
3
EFTA00793043
Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 4 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 5 of 7
Whenever a deposition involves the disclosure of CONFIDENTIAL
INFORMATION, the deposition or portions thereof shall be designated as
CONFIDENTIAL and shall be subject to the provisions of this Protective
Order. Such designation shall be made on the record during the deposition
whenever possible, but a party may designate portions of depositions as
CONFIDENTIAL after transcription, provided written notice of the
designation is promptly given to all counsel of record within thirty (30) days
after notice by the court reporter of the completion of the transcript, and until
the expiration of such thirty (30) days after notice by the court reporter of the
completion of the transcript, no party or counsel for any such party may share
the contents of the deposition outside the limitations of this Protective Order.
10.
Whenever a party seeks to file any document or material containing
CONFIDENTIAL INFORMATION with the Court in this matter, it shall be
accompanied by a Motion to Seal pursuant to Section 6.2 of the Electronic
Case Filing Rules & Instructions for the Southern District of New York.
11.
A party may object to the designation of particular CONFIDENTIAL
INFORMATION by giving written notice to the party designating the disputed
information. The written notice shall identify the information to which the
objection is made. If the parties cannot resolve the objection within ten (10)
business days after the time the notice is received, it shall be the obligation of
the party designating the information as CONFIDENTIAL to file an
4
EFTA00793044
Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 5 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 6 of 7
appropriate motion requesting that the Court determine whether the disputed
information should be subject to the terms of this Protective Order. If such a
motion is timely filed, the disputed information shall be treated as
CONFIDENTIAL under the terms of this Protective Order until the Court rules
on the motion. If the designating party fails to file such a motion within the
prescribed time, the disputed information shall lose its designation as
CONFIDENTIAL and shall not thereafter be treated as CONFIDENTIAL in
accordance with this Protective Order. In connection with a motion filed under
this provision, the party designating the information as CONFIDENTIAL shall
bear the burden of establishing that good cause exists for the disputed
information to be treated as CONFIDENTIAL.
12.
At the conclusion of this case, unless other arrangements arc agreed upon, each
document and all copies thereof which have been designated as
CONFIDENTIAL shall be returned to the party that designated it
CONFIDENTIAL, or the parties may elect to destroy CONFIDENTIAL
documents. Where the parties agree to destroy CONFIDENTIAL documents,
the destroying party shall provide all parties with an affidavit confirming the
destruction.
13.
This Protective Order shall have no force and effect on the use of any
CONFIDENTIAL INFORMATION at trial in this matter.
5
EFTA00793045
Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 6 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 7 of 7
14.
This Protective Order may be modified by the Court at any time for good cause
shown following notice to all parties and an opportunity for them to be heard.
13Y THE
6
EFTA00793046
To:
Laura Menninger, Esq.
Re:
Giuffre v. Maxwell, Case No. 1S-cv-07433
United States District Court For the Southern District of New York
March 17, 2016 Protective Order by United States District Court Judge Sweet
The undersigned acknowledges that he has read the above-referenced
Protective Order, a copy of which is attached, and agrees to be bound by the
provisions thereof.
Dated: August 3, 2016
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EFTA00793047