Case: 13-12923

Case: 13-12923 Date Filed: 07/12/2013 Page: 1 of 26 No. 13-12923 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT JANE DOE NO. 1 AND JANE DOES NO. 2, Plaintiffs-Appellees v. UNITED STATES OF AMERICA, Defendant-Appellee ROY BLACK ET AL., Intervenor/Appellants MOTION FOR STAY PENDING APPEAL Roy Black Jackie Perczek Black, Srebnick, Kornspan & Stumpf 201 South Biscayne Boulevard Suite 1300 Miami, Florida 33131 Tel: (305) 371-6421 Fax: (305)358-2006 [email protected] Martin G. Weinberg 20 Park Plaza, Suite 1000 Boston, Massachusetts 02116 Tel: (617) 227-3700 Fax: (617) 338-9538 [email protected] EFTA01072032 Case: 13-12923 Date Filed: 07/12/2013 Page: 2 of 26 TABLE OF CONTENTS INTRODUCTION 1 I. BACKGROUND 4 II. LIKELIHOOD OF SUCCESS ON THE MERITS 7 A. The Applicability of Rule 410 7 B. The Common Law Privilege Under Rule 501 12 III. THE SEVERE AND IRREMEDIABLE PREJUDICE TO INTERVENORS FROM DISCLOSURE OF THE COMMUNICATIONS 15 IV. THE ABSENCE OF PREJUDICE TO THE PLAINTIFFS . 17 V. THE PUBLIC INTEREST 19 CONCLUSION 20 EFTA01072033 Case: 13-12923 Date Filed: 07/12/2013 Page: 3 of 26 TABLE OF AUTHORITIES Cases Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007) 13 Blackledge v. Allison, 431 U.S. 63 (1977) 13 Florida Businessmen for Free Enterprise v. City of Hollywood, 648 F.2d 956 (11th Cir. 1981) 1 Folb v. Motion Picture Indus. Pension & Health Plans, 161 F.Supp.2d 1164, 1175 (C.D. Cal. 1998) 15 Gill v. Gulfstream Park Racing Ass 'n, Inc., 399 F.3d 391 (1st Cir. 2005) 17 Hickman v. Taylor, 329 U.S. 495 (1947) 9 In re Air Crash Near Cali, Colombia, 959 F.Supp. 1529 (S.D.F1a. 1997) . 15 In re Federal Grand Jury Proceedings, 975 F.2d 1488 (11th Cir. 1992) 2 In re Grand Jury Proceedings, 43 F.3d 966 (5th Cir. 1994) 17 In re MTSG, Inc., 675 F.3d 1337 (7th Cir. 2012) 14 In re Perrigo Co., 128 F.3d 430 (6th Cir.1997) 17 In re Professionals Direct Ins. Co., 578 F.3d 432 (6th Cir. 2009) 17 Jaffee v. Redmond, 518 U.S. 1 (1996) 14 Keene Corp. v. United States, 508 U.S. 200 (1993) 11 Lafler v. Cooper, 132 S. Ct. 1376 (2012) 7 ii EFTA01072034 Case: 13-12923 Date Filed: 07/12/2013 Page: 4 of 26 Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928 (2d Cir. 1979) 14 Merial Ltd. v. Cipla Ltd., 426 Fed.Appx. 915 (11th Cir. 2011) 2 Missouri v. Frye, 132 S. Ct. 1399 (2012) 7 Santobello v. New York, 404 U.S. 257 (1971) 13, 18 Sheldone v. Pennsylvania Turnpike Ass 'n, 104 F.Supp.2d 511 (W.D.Pa. 2000) Trammel v. United States, 445 U.S. 40 (1980) United States v. Adelman, 458 F.3d 791 (8th Cir. 2006) United States v United States v United States v United States v United States v United States v . Al-Arian, 514 F.3d 1184 (11th Cir. 2008) . Castaneda, 162 F.3d 832 (5th Cir. 1998) . Hare, 49 F.3d 447 (8th Cir. 1995) . Herman, 544 F.2d 791 (5th Cir. 1977) . Merrill, 685 F.3d 1002 (11th Cir. 2012) . Mezzanatto, 513 U.S. 196 (1995) United States v. Paden, 908 F.2d 1229 (5th Cir. 1990) Constitutional Provisions Sixth Amendment, United States Constitution 7 Statutes and Rules 18 U.S.C. §2255 4 18 U.S.C. §3771 1 14 13 11 18 18 11 9, 14 10 13 11 iii EFTA01072035 Case: 13-12923 Date Filed: 07/12/2013 Page: 5 of 26 Fed. R.Crim. P. 11(e)(6) 13 Fed. R. Crim. P 11(f) 6, 12 Fed. R. Evid. 410 passim Fed. R. Evid. 501 6, 12, 16 iv EFTA01072036 Case: 13-12923 Date Filed: 07/12/2013 Page: 6 of 26 INTRODUCTION Appellants Roy Black, Martin Weinberg, and Jeffrey Epstein hereby request that this Court stay the district court's order of June 18, 2013 (Doc. 188), Exhibit A hereto, ordering disclosure to plaintiffs of the intervenor attorneys' written communications with federal prosecutors in the Southern District of Florida made with the specific purpose of obtaining a favorable resolution of the criminal investigation ofJeffrey Epstein through attorney-to-attorney settlement negotiations. The central issue they will raise on appeal is whether communications made by attorneys during the course of settlement/plea negotiations in a criminal case — communications falling within the heartland of Fed. R. Evid. 410 —are privileged and confidential and protected from disclosure to third parties such as civil plaintiffs or, in this case, plaintiffs suing the government under the Crime Victims Rights Act, 18 U.S.C. §3771 ("CVRA"), who have openly stated that they intend to use those communications to harm the attorneys' client and seek to rescind the client's settlement agreement so that the client can be prosecuted. In determining whether to grant a stay pending appeal, the Court considers four factors: "(1) the likelihood that the moving party will ultimately prevail on the merits of the appeal; (2) the extent to which the moving party would be irreparably harmed by denial of the stay; (3) the potential harm to opposing parties if the stay is issued; and (4) the public interest." Florida Businessmen for Free Enterprise v. City of EFTA01072037 Case: 13-12923 Date Filed: 07/12/2013 Page: 7 of 26 Hollywood, 648 F.2d 956, 957 (11th Cir. 1981). See, e.g., In re Federal Grand Jury Proceedings, 975 F.2d 1488, 1492 (11th Cir. 1992). Those factors are amply satisfied in this case: there is a strong likelihood that intervenors will prevail on appeal (or at a minimum, they have a "substantial case on the merits," and the "harm factors" militate in favor of granting a stay, Merial Ltd. v. Cipla Ltd., 426 Fed.Appx. 915 (11th Cir. 2011)); they will be immediately and irreparably harmed by the disclosure of the communications at issue; the plaintiffs will suffer no harm from the granting of a stay until these critically important issues can be resolved by this Court; and to the extent that the public has an interest in the matter, it would favor considered appellate resolution of the issues presented prior to the release of the communications at issue. Alternatively, as plaintiffs have filed a motion to dismiss this appeal on jurisdictional grounds, which intervenors have opposed, this Court should, at a minimum, stay the district court's order until it has ruled on the motion to dismiss. If that motion is denied, and the appeal is allowed to proceed, then the Court should stay the district court's order until the important issues which will be raised in this appeal are decided. The district court's order is the first decision anywhere, insofar as the undersigned counsel are aware, which has ordered disclosure to third party litigants of private and confidential communications from attorneys seeking to resolve a 2 EFTA01072038 Case: 13-12923 Date Filed: 07/12/2013 Page: 8 of 26 criminal matter favorably to their clients and government prosecutors. The district court's decision, which drastically reshapes the landscape of criminal settlement negotiations and overturns expectations of privacy, confidentiality, and privilege on which criminal defense attorneys have reasonably relied for many decades in negotiating with government attorneys on behalf of their clients, has potentially far- reaching and, intervenors contend, seriously deleterious consequences for the ability of attorneys nationwide to effectively represent their clients through open and candid communication with government counsel. The decision will have a predictably chilling effect on attorneys around the country, if they can no longer expect privacy and confidentiality in their written communications with prosecutors aimed at reaching a negotiated resolution to a criminal investigation or prosecution. Such communications often necessarily involve explicit or implicit admissions regarding their client's conduct and opinions regarding acceptable resolutions of the matter, admissions and opinions which attorneys in many cases will be loath to commit to written form if they may be subject to later disclosure to litigation adversaries of the attorneys' clients. This case is far from sui generis — the cases are legion in which there is related civil litigation seeking damages or other recovery from individuals who were targets of criminal investigations or prosecutions and in which, after becoming aware of the district court's decision, plaintiffs will begin clamoring for access to communications between defendants' counsel and prosecuting authorities 3 EFTA01072039 Case: 13-12923 Date Filed: 07/12/2013 Page: 9 of 26 in the belief that it may support their cases against the defendants. The importance of these issues for the functioning of the criminal justice system counsels in favor of granting the requested stay. I. BACKGROUND. Intervenor Jeffrey Epstein entered into a Non-Prosecution Agreement ("NPA") with the government in September, 2007. Under that agreement, Mr. Epstein pled guilty to two state felony offenses and served a prison sentence and a term of community control probation. The agreement, with which he has fully complied, also required that he pay the legal fees of the attorney-representative of identified victims and that he not contest liability in any cases brought against him solely under 18 U.S.C. §2255. Many plaintiffs sued under §2255 and received settlements as the direct result of Mr. Epstein's agreement not to contest liability in those cases. Other plaintiffs, including the Jane Does in this case, "relied on the [NPA] when seeking civil relief against Epstein . . . and affirmatively advanced the terms of the [NPA] as a basis for relief from Epstein." United States' Reply in Support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction, Doc. 205-6 at 12-13. Now, having reaped the benefits of the NPA, plaintiffs seek, among other remedies, the rescission of that agreement. While the underlying CVRA action was commenced as an emergency petition, plaintiffs shortly thereafter appeared at a status conference, knowing that Mr. Epstein 4 EFTA01072040 Case: 13-12923 Date Filed: 07/12/2013 Page: 10 of 26 was in prison, and told the district court that they saw no reason to proceed on an emergency basis. Trans. July 11, 2008 (Doc. 15) at 24-25. Then, a month later, plaintiffs withdrew their request that the district court rescind the NPA, telling the court that because of the legal consequences of invalidating the NPA, it was probably not in their interests to ask for rescission. See Trans. August 14, 2008 (Doc. 27) at 4. Plaintiffs spent the next eighteen months pursuing civil remedies against Mr. Epstein, and ultimately obtaining settlements, while their CVRA action remained dormant. Indeed, so inactive were plaintiffs that the district court dismissed the case for lack of prosecution in September, 2010. Doc. 38. See also Order Denying Government's Motion to Dismiss (Doc. 189) at 5 ("Over the course of the next eighteen months, the CVRA case stalled as petitioners pursued collateral civil claims against Epstein"). During the course of civil litigation against Mr. Epstein, Mr. Epstein was ordered, over his strenuous objection, to produce documents given to him by the government during the course of his settlement/plea negotiations with it. See Jane Doe #2 v. Epstein, No. 08-80119-MARRA, Doc. 462. Once the CVRA action was re- activated — after plaintiffs had successfully pursued their civil monetary remedies against Mr. Epstein to completion — plaintiffs sought to use that correspondence in the CVRA case and thereafter also sought disclosure from the government of correspondence authored and sent to the government by Epstein's attorneys in the course of their efforts on behalf of their client to resolve the ongoing criminal 5 EFTA01072041 Case: 13-12923 Date Filed: 07/12/2013 Page: 11 of 26 investigation of him. Both Mr. Epstein and his criminal defense attorneys— appellants Roy Black and Martin Weinberg — filed motions to intervene for the limited purpose of challenging the use and disclosure of the settlement/plea negotiation correspondence (Doc. 56, 93), followed by supplemental briefing and motions for a protective order, contending that the correspondence was privileged and confidential under Fed. R. Crim. P 11(0 and Fed. R. Evid. 410 and the work product privilege and that the correspondence fell within the bounds of privilege under Fed. R. Evid. 501. Doc. 94, 160,161, 162.The government also filed a response, in which it agreed with intervenors that the correspondence was protected by the work product privilege. Doc. 100. The district court granted the motions to intervene (Doc. 158, 159), but ultimately ruled that the correspondence was subject to disclosure. Doc. 188. The district court rejected intervenors' argument based on Rule 410, erroneously concluding that the correspondence fell outside the protections of Rule 410. Id. at 4. The district court also rejected — again erroneously — the application of Rule 410 to Mr. Epstein's counsel's communications with the government on the ground that Mr. Epstein had in fact pleaded guilty, albeit in state court. Id. at 4-5. Finally, the district court rejected intervenors' argument based on Rule 501 on the ground that Congress has already addressed the issue in Fed. R. Crim. P. 11(0 and Fed. R. Evid. 410 and 6 EFTA01072042 Case: 13-12923 Date Filed: 07/12/2013 Page: 12 of 26 did not see fit to recognize a privilege for plea negotiation communications. Id. at 8-9. That too was error. Intervenors sought a stay of the district court's disclosure order pending appeal to this Court in the district court (Doc. 193), which was denied, although the district court stayed its order until July 15, 2013, to permit intervenors to seek a stay pending appeal from this Court (Doc. 206), Exhibit B hereto, which they now do. II. LIKELIHOOD OF SUCCESS ON THE MERITS. A. The Applicability of Rule 410. Any assessment of the merits of the intervenors' contentions must begin with an understanding of the central role of plea bargaining and settlement negotiations in our criminal justice system and the Sixth Amendment protections which surround them. "Plea bargains are . . . central to the administration of the criminal justice system" because ours is "a system of pleas, not a system of trials." Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012); Missouri v. Frye. 132 S. Ct. 1399, 1407 (2012). In Lafler and Frye, the Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel "extends to the plea bargaining process" and that defendants are entitled to "the effective assistance of competent counsel" during plea negotiations. Lafler, 132 S. Ct. at 1384; Frye, 132 S.Ct. at 1407-09 (2012). Under Lafler and Frye, counsel have an ongoing obligation to provide effective representation in plea bargaining and to engage in communications with the client and the prosecutor to 7 EFTA01072043 Case: 13-12923 Date Filed: 07/12/2013 Page: 13 of 26 discharge that obligation. Even before formal charges are brought, counsel representing a client under federal investigation have an obligation to secure the best possible outcome for their clients, whether it be one which results, as here, in no charges being brought by the prosecuting authority or the bringing of fewer, or less serious, charges against the client. Defense counsel cannot fulfill their professional obligations to their clients if they must temper their communications with the prosecution in the criminal settlement negotiation context for fear that disclosures made now will later enure to the clients' severe detriment in other litigation contexts. The professional, ethical, and constitutional obligations of attorneys representing persons under investigation for, or charged with, crimes are terribly at odds with any ruling which exposes those negotiations to public scrutiny (or to the scrutiny of later litigation adversaries of the client) and makes them admissible in evidence to be used as ammunition to harm the clients, yet that is the very result which the district court's order enshrines. The strong policy considerations militating against the result reached by the district court weigh heavily in favor of the likelihood of intervenors' success on appeal. Under the district court's ruling, the attorneys for a person under federal criminal investigation may never enter into negotiations with the government with the primary aim of avoiding federal indictment entirely, no matter how serious and good faith those negotiations, without risking that anything they say on behalf of their 8 EFTA01072044 Case: 13-12923 Date Filed: 07/12/2013 Page: 14 of 26 clients in seeking to arrive at a negotiated settlement may in the future be used, either by the government or by adversarial third parties, to the severe detriment of their client. This is not and cannot be the law and is certainly unsound policy. Indeed, the district court's opinion creates an incentive for attorneys not to do precisely what Hickman v. Taylor, 329 U.S. 495 (1947), was intended to encourage attorneys to do: reduce facts, ideas, and opinions to writing. A return to the days of settlement/plea negotiations conducted through oral, rather than written, communications, which the district court's decision will encourage whenever the progress of the negotiations or the attainment of the desired objective require the attorney to communicate information which, if disclosed in another context, would be detrimental to the client's interests would serve no one's interests — not the defendant's, not the government's, not the judicial system's, and not the public's. The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement." United States v. Herman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived from "the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him." Id. at 796 (emphasis added). The settlement negotiations at issue here lie well within the heartland of Rule 410's prohibition against the admissibility of plea negotiations "against the defendant 9 EFTA01072045 Case: 13-12923 Date Filed: 07/12/2013 Page: 15 of 26 who was a participant in the plea discussions" "in any civil or criminal proceeding" and should be protected from disclosure to third parties for that reason. The cases on which the district court relied in concluding that the communications at issue here do not fall within Rule 410 are uniformly inapposite and do not support the proposition that those communications are not subject to the protections of Rule 410. United States v. Merrill, 685 F.3d 1002, 1013 (11th Cir. 2012), concerned statements made by the defendant himself in informal meetings with the prosecution prior to his scheduled grand jury testimony. See id. at 1007-08. The only discussions of leniency involved the government's generalized statement to the defendant that if he cooperated, the government would recommend leniency when he was sentenced. Id. Notably, the Court's ruling that the district court had not erred in refusing to suppress the defendant's statements rested on its conclusion that, given the circumstances, the defendant could not have reasonably believed that he was engaged in plea negotiations. Id. at 1013. The case does not stand for the general proposition advanced by the district court that settlement discussions in advance of the return of an indictment categorically do not fall within Rule 410. Moreover, the circumstances present here were dispositively different from those in Merrill. Here, the communications were made attorney-to-attorney under circumstances which leave no 10 EFTA01072046 Case: 13-12923 Date Filed: 07/12/2013 Page: 16 of 26 room to doubt that the parties were engaged in serious negotiations to resolve the federal criminal investigation of Epstein.' The district court also rejected the applicability of Rule 410 because the communications between Epstein's counsel and the government led to Epstein's plea of guilty in state court. In the sole case cited by the district court for this proposition, United States v. Paden, 908 F.2d 1229 (5th Cir. 1990), the defendant pled guilty to federal charges pursuant to his plea agreement. That Mr. Epstein entered into a plea in state court to state offenses is irrelevant to the Rule 410 analysis. The plain meaning of Rule 410(4) is that the defendant must enter a plea in federal court relating to the federal offenses under investigation. If Congress had intended to include state court pleas in subsection (4), it would have expressly done so, as it did in subsection (3). There, Congress expressly provided for change-of-plea proceedings in federal court and "comparable state procedures." Fed. R. Evid. 410(3). Congress did not provide for state court pleas in subsection (4) of the rule, and "where Congress includes particular language in one section of a statute but omits it in The other two cases relied on by the district court are equally inapposite. United States v. Adelman, 458 F.3d 791 (8th Cir. 2006), involved statements made by the defendant to federal prosecutors during meetings at which she was told, according to the government, that she was a "prime suspect" in criminal wrongdoing and that any statements she made could be used against her. Id. at 805. In United States v. Hare, 49 F.3d 447 (8th Cir. 1995), like the other two cases, the statements at issue were made by the defendant to prosecutors voluntarily and unconditionally in the unilateral hope of bettering his chances. Id. at 451. 11 EFTA01072047 Case: 13-12923 Date Filed: 07/12/2013 Page: 17 of 26 another . . . it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Keene Corp. v. United States, 508 U.S. 200, 208 (1993). B. The Common Law Privilege Under Rule 501. The district court rejected intervenors' contention that the Court should recognize the existence of a common law privilege for communications made in the course of settlement/plea negotiations on the ground that Congress has already addressed the issue in Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 and did not see fit to recognize a privilege for plea negotiation communications. Neither the Rules of Evidence nor the Rules of Criminal Procedure, however, have ever dealt with specifying the privileges which will and will not be recognized; instead, they leave that function to the courts under Rule 501. Nothing in Rules 11(0 or 410 suggest that Congress rejected (or even thought about) a privilege for attorney settlement/plea negotiation communications when framing those provisions. Rules 11(0 and 410 deal only with what is admissible; they do not purport to extend to what is discoverable. Rule 410 begins with the assumption that a litigant such as the government is already in possession of plea negotiation materials, and thus the Rule describes the circumstances in which those materials may either be admitted or excluded from consideration at trial. It says nothing, however, about whether a nonparticipant in the plea negotiations is entitled to obtain those materials in discovery in the first instance 12 EFTA01072048 Case: 13-12923 Date Filed: 07/12/2013 Page: 18 of 26 to advance interests distinct from those at issue during the plea or settlement negotiations between a target of a federal criminal investigation and the prosecutors conducting the grand jury investigation of him. That question must be answered by reference to Fed. R. Evid. 501, which "empower[s] the federal courts to `continue the evolutionary development of [evidentiary] privileges.'" Adkins v. Christie, 488 F.3d 1324, 1328 (1 1 th Cir. 2007), quoting Trammel v. United States, 445 U.S. 40, 47 (1980). The Supreme Court has recognized that "Rules 410 and 11(e)(6) `creat[e], in effect, a privilege of the defendant . . .."' United States v. Mezzanatto, 513 U.S. 196, 204 (1995).This privilege encourages disposition of criminal cases by plea agreement, which is "an essential component of the administration of justice," which is "to be encouraged" because "[i]f every criminal charge were subjected to a full-scale trial, the states and the federal government would need to multiply by many times the number of judges and court facilities." Santobello v. New York, 404 U.S. 257, 260 (1971). "[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system" which "benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71 (1977). Those sentiments are just as true today, when the overwhelming majority of criminal cases are resolved through plea bargaining. Reason and experience counsel that our system of sentencing laws, ethical rules, federal court dockets, and constit ut ional considerations will not function 13 EFTA01072049 Case: 13-12923 Date Filed: 07/12/2013 Page: 19 of 26 if plea negotiation communications are not privileged. After all, "it is immediately apparent that no defendant or his counsel [would] pursue [plea negotiations] if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt." Herman, 544 F.2d at 797. Plea negotiations are "rooted in the imperative need for confidence and trust,"Jaffee v. Redmond, 518 U.S. 1, 10 (1996), and maintaining their confidentiality advances significant public and private interests. Numerous courts have recognized a "mediation privilege" which "afford[s] to litigants an opportunity to articulate their position[s] and to hear, first hand, both their opponent's version of the matters in dispute and a neutral assessment of the relative strengths of the opposing positions," Sheldone v. Pennsylvania Turnpike Ass 'n, 104 F.Supp.2d 511, 513 (W.D.Pa. 2000), and their reasons for doing so apply with even more force to plea negotiations, which have constitutional ramifications which do not appear in civil actions.2 Unlike disputes which are subject to civil mediation, criminal cases involve decisions regarding a defendant's life and liberty. Thus, in plea negotiations, the need for "counsel to discuss matters in an uninhibited fashion" is even more important. See Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928, 930 (2d Cir. 1979). When a defendant is facing loss of liberty, he has an even greater "need for confidentiality and trust between participants in a [plea 2 For this reason, cases such as In re MTSG, Inc., 675 F.3d 1337 (7th Cir. 2012), on which the district court relied in denying the requested stay, Doc. 206 at 2, do not diminish the force of the serious issues raised in this case. 14 EFTA01072050 Case: 13-12923 Date Filed: 07/12/2013 Page: 20 of 26 negotiation]."Folb v. Motion Picture Indus. Pension & Health Plans, 161 F.Supp.2d 1164, 1175 (CD. Cal. 1998).Discovery and use of plea negotiations will cause "a meaningful and irreparable chill" to the "frank and complete disclosures" that result in negotiated resolution of criminal matters. In re Air Crash Near Cali, Colombia, 959 F.Supp. 1529 (S.D.Fla. 1997). For these reasons, plea negotiations are properly subject to a common law privilege under Rule 501. III. THE SEVERE AND IRREMEDIABLE PREJUDICE TO INTERVENORS FROM DISCLOSURE OF THE COMMUNICATIONS. The communications which would be disclosed under the district court 's order were made by intervenor attorneys on behalf of their client, intervenor Epstein, as part of a full, open, and frank negotiation with government counsel directed toward resolving the federal criminal investigation of Mr. Epstein on the most favorable terms possible. Those communications were made with complete confidence that their contents would remain confidential, known only to counsel for the government and intervenors, and would not be subject to possible future disclosure to third parties, and certainly not to third parties seeking to use the contents of their attorney communications to harm their client. That belief was eminently reasonable and based on established practice and understandings regarding the confidentiality of such communications on which they relied in making those communications. The attorney intervenors' decisions regarding the content of the communications sent to the 15 EFTA01072051 Case: 13-12923 Date Filed: 07/12/2013 Page: 21 of 26 government in the effort to fulfill their professional and ethical obligations to their client were made in reliance upon those communications not being disclosed outside the attorney-to-attorney settlement negotiation process. Indeed, for the reasons addressed in the preceding section, the settlement/plea negotiation process so central to our system of criminal justice cannot function in the absence of counsel's ability to represent their clients vigorously in pursuing a favorable resolution for them through confidential communications with government counsel. Now, without persuasive precedent, by ordering the disclosure of settlement negotiations to Mr. Epstein's adversaries, the district court has drastically reshaped the settlement negotiation landscape to retroactively eliminate the reasonable expectation of confidentiality generated by Rule 410 and the work product privilege, in reliance on which these communications were authored by competent and responsible attorneys. If such communications are ultimately found on appeal to be entitled to remain confidential under Rule 410 and the work product privilege and/or found to be subject to a Rule 501 common law privilege, their disclosure in advance of appellate resolution of the important issues raised in this case will inflict immediate and irremediable harm on intervenors, as, if disclosure is not stayed pending appeal, the protections of privilege and confidentiality will have been irretrievably lost. What has been disclosed cannot be undisclosed and returned to its protected state; the damage against which privilege and confidentiality rules are 16 EFTA01072052 Case: 13-12923 Date Filed: 07/12/2013 Page: 22 of 26 designed to protect will have been done. The value to intervenors of their appeal to this Court would be entirely vitiated, as, absent a stay, a victory on appeal cannot ever undo the injury already caused.3 The serious and irreparable injury to intevenors from the district court's order weighs profoundly heavily in favor of granting a stay pending appeal. IV. THE ABSENCE OF PREJUDICE TO THE PLAINTIFFS. In stark contrast to the severe risk of serious and irreparable injury which the failure to grant a stay pending appeal would cause to intervenors stands the clear absence of prejudice to plaintiffs if a stay is granted. The plaintiffs commenced this action in 2008; they did not even seek disclosure of the communications at issue until two and a half years later, in March, 2011 (Doc. 51). Indeed, the plaintiffs knowingly sat on their CVRA claims for years as Mr. Epstein served a prison sentence and as he Because it is impossible for appellate courts to undo the damage caused by forced disclosure of privileged or confidential communications or information, courts have consistently recognized that the harm caused by an erroneous order to disclose privileged or confidential information is irreparable. See, e.g., In re Professionals Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009)(finding risk of irreparable harm because "a court cannot restore confidentiality to documents after they are disclosed"); Gill v. Gulfstream Park Racing Ass 'tz, Inc., 399 F.3d 391, 398 (1st Cir. 2005)("once the documents are turned over to Gill with no clear limitation on what he may do with them, the cat is out of the bag, and there will be no effective means by which TRPB can vindicate its asserted rights after final judgment"); In re Perrigo Co., 128 F.3d 430, 437 (6th Cir.1997)("We find . . . that forced disclosure of privileged material may bring about irreparable harm"); In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th Cir. 1994)(forced disclosure of privileged documents would cause irreparable harm). 17 EFTA01072053 Case: 13-12923 Date Filed: 07/12/2013 Page: 23 of 26 satisfied all the requirements of his NPA. See pages 4-5, supra. There will be no prejudice to plaintiffs from waiting until an appellate court can address the critically important issues at stake here. If they are entitled to relief - something intervenors strenuously deny — they will obtain it, and the timing of that relief matters little, if at all. Having been in no hurry to seek rescission of the NPA and having ignored their CVRA action for eighteen months while they successfully pursued civil remedies against Mr. Epstein, plaintiffs should not now be heard to contend that the time awaiting appellate resolution is of serious consequence. Moreover, due process and contract principles preclude the rescission of the NPA. Mr. Epstein has fully performed his side of the bargain with the government, and when a bargain is based "on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257 (1971). Rescission of the NPA would violate Mr. Epstein's constitutional and contractual rights. See, e.g., United States v. Al-Arian, 514 F.3d 1184, 1190 (11th Cir. 2008)("Due process requires the government to adhere to the promises it has made in a plea agreement"); United States v. Castaneda, 162 F.3d 832, 835-36 (5th Cir. 1998)("Nonprosecution agreements, like plea bargains, are contractual in nature, and are therefore interpreted in accordance with general principles of contract law. Under these principles, if a defendant lives up to his end of the bargain, the government is bound to perform its 18 EFTA01072054 Case: 13-12923 Date Filed: 07/12/2013 Page: 24 of 26 promises"). Rescission of the NPA at this juncture would, moreover, undermine Mr. Epstein's reasonable expectations of finality in a contract into which he entered with the government, a particularly inequitable result where it was the government, alone, which had duties to third parties under the CVRA and Mr. Epstein fully complied with his obligations under the agreement. See page 4, supra. Even if the district court could validly set aside the NPA based on the alleged violations of the CVRA, which intervenors maintain that it cannot, although they acknowledge that the district court has ruled otherwise (Doc. 189), the ultimate result under both contract and constitutional law would be the re-entry of the NPA after compliance by the government with its obligations under the CVRA. The confidentiality and privilege rights of intervenors should not be destroyed, as they would be b) the failure to grant a stay pending appeal, for so little reason. V. THE PUBLIC INTEREST. There is no interest of the public which will be harmed by the granting of the requested stay. Ordinarily the public may have little interest at all in a dispute between private civil litigants regarding access to documents. The public does, however, have a great interest in the fair conduct of plea negotiations — an interest that is profoundly affected by the district court's order. Since more than 95% of all criminal cases are resolved by pleas, the public must have an interest in how the 19 EFTA01072055 Case: 13-12923 Date Filed: 07/12/2013 Page: 25 of 26 courts function in regard to pleas. The public needs to see that justice not only is done but appears to be done in the courts and would likely regard the Court's new rule of disclosure to private litigants as introducing injustice and unfairness into the settlement/plea negotiation process. The public's interest strongly lies in awaiting appellate resolution of the important issues raised in this case before forcing disclosure of documents, as the implementation of an un-stayed district court order will risk a change in the way in which attorneys provide effective assistance of counsel to defendants in the pivotal plea bargaining stages that are at issue in this matter. CONCLUSION For all the foregoing reasons, the requested stay pending appeal should be granted. Respectfully submitted, /s/ Roy Black Roy Black Jackie Perczek Black, Srebnick, Kornspan & Stumpf 201 South Biscayne Boulevard Suite 1300 Miami, Florida 33131 Tel: (305) 371-6421 Fax: (305)358-2006 [email protected] [email protected] /s/ Martin G. Weinberg Martin G. Weinberg 20 Park Plaza, Suite 1000 Boston, Massachusetts 02116 Tel: (617) 227-3700 Fax: (617) 338-9538 [email protected] Intervenor/Appellants and Attorneys for Intervenor/Appellants 20 EFTA01072056 Case: 13-12923 Date Filed: 07/12/2013 Page: 26 of 26 CERTIFICATE OF SERVICE I, Martin G. Weinberg, hereby certify that on this 12th day of July, 2013, the foregoing document was served, through this Court's CM/ECF system, on all parties of record. /s/ Martin G. Weinberg Martin G. Weinberg 21 EFTA01072057 Case: 13-12923 Date Filed: 07/12/2013 Page: 1 of 12 Exhibit A EFTA01072058 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 1 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 2 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARFLA JANE DOE #1 and JANE DOE #2, petitioners, VS. UNITED STATES OF AMERICA, respondent. ORDER GRANTING PETITIONERS' MOTION TO PROFFER GOVERNMENT CORRESPONDENCE IN SUPPORT OF CVRA CLAIMS & GRANTING MOTION TO UNSEAL CORRESPONDENCE AND RELATED UNREDACTED PLEADINGS OF PETITIONERS THIS CAUSE is before the court on the petitioners' motion to use correspondence generated between the United States Attorney's Office for the Southern District of Florida (USAO/SDFL) and counsel for Jeffrey Epstein to prove the Crime Victims' Rights Act (CVRA) violations alleged in this proceeding, joined with motion to unseal petitioners' unredacted pleadings which reference and incorporate the correspondence [DE 51]; the government's response to the motion [DE 60]; petitioners' reply to the government's response [DE 74]; intervenors Roy Black, Martin Weinberg, and Jay Lefkowitz's opposition to the motion, including motion for protective order [DE 160, 161]; intervenor Jeffrey Epstein's opposition to the motion, including motion for protective order [DE 162]; intervenors' notice of supplemental authority in support of asserted common law privilege [DE 163]; petitioners' response to supplemental briefing of intervenors [DE 167]; intervenors' reply in further support of motion for protective order [DE 169] and petitioners' supplemental authority in opposition [DE 172]. EFTA01072059 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 2 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 3 of 12 The government does not object to petitioners' request to use the correspondence as evidence in this proceeding, but does oppose, in part, the motion to unseal. More specifically, the government expresses a concern that certain labeled "facts" included in the "Statement of Undisputed Facts" filed in support of petitioners' "Motion for Finding of Violations of the Crime Victims' Rights Act" [DE 48] "relate[] to matters occurring before the grand jury" which it is unable to confirm or deny without doing violence to its obligation of grand jury secrecy under Fed. R. Crim P. 6(e). It also expresses concern that these allegations describe crimes alleged against Jeffrey Epstein and others for which they were never charged or convicted, contending that the Due Process Clause requires the court to maintain this information under seal to protect the reputations of persons who may have been under federal investigation but not charged or convicted. See e.g. In re Smith, 656 F.2d 1101, 1106 (5`b Cir. 1981)(requiring redaction from records of guilty pleas of references to name of individual who was not charged or convicted). Intervenors Jeffrey Epstein and his attorneys object to the petitioners' request for permission to use the evidence in this proceeding, and object to petitioners' request to unseal the correspondence and related pleadings on the following grounds: (1) the correspondence is the privileged opinion 'Fed. R. Crim. P. Rule 6(e)(2)(B) provides: Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury: (i)a grand juror, (ii) an interpreter; (iii) a court reporter; (iv)an operator of a recording device; (v)a person who transcribes the recorded testimony; (vi) an attorney for the government; or (vii)a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii). 2 EFTA01072060 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 3 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 4 of 12 work-product of Epstein's legal counsel; (2) the correspondence is protected under grand jury secrecy principles codified at Fed. R. Crim. P. 6(e) because its subject matter overlaps with matters occurring before the grand jury; (3) the correspondence is shielded against disclosure under Fed. R. Crim. P. 11(02 and Fed. R. Evid. 410' because it consists of and relates to statements made during the course of plea discussions between Epstein, through counsel, and federal prosecutors; (4) the correspondence is irrelevant because rescission of Epstein's non-prosecution agreement with the United States Attorneys' Office for the Southern District of Florida is not an available remedy in this CVRA proceeding; (5) the court should craft a new common law privilege encompassing plea discussions under Fed. R. Evid. 501. At the outset, the court observes that the intervenors' privilege objections to public release of the correspondence in question were previously rejected by Magistrate Judge Linnea Johnson in a discovery order entered in a parallel civil lawsuit, Jane Doe # 2 v. Jeffrey Epstein, Case No. 08- 80893-CIV-MARRA. By order entered January 5, 2011 in that proceeding, Magistrate Judge Johnson expressly rejected Epstein's request for the "Court to find the subject correspondence privileged and on that basis prohibit plaintiffs' counsel from disclosing it in either of the two 'Fed. R. Crim. P. 11(0 provides, "The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal. Rule of Evidence 410." 'Federal Rule of Evidence 410 (a) provides in pertinent part: (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (4) a statement during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a plea of guilty or they resulted in a later-withdrawn guilty plea. 3 EFTA01072061 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 4 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 5 of 12 proceedings [the pending state court or federal (CVRA) proceedings]." [Case No. 08-80893, DE 226]. 4 The court finds no reason to revisit that ruling here. As a threshold matter, "statement[s] during plea discussions" protected under Fed. R. Evid. 410 do not include general discussions of leniency and statements made in the hope of avoiding a federal indictment - arguably the content of the correspondence at issue here. See e.g. United States v. Merrill, 685 F.3d 1002 (11th Cir. 2012)(statements made to AUSA during meetings were not statements made during plea negotiations under Rule 410, where there were no pending charges against defendant when discussions occurred; general discussions of leniency did not transform meeting into plea negotiations); United States v. Edelman, 458 F.3d 791, 804-06 (811' Cir. 2006)(Rule 410 inapplicable to statements made during preindictment meetings by defendant seeking to avoid indictment and not reach plea agreement); United States v. Hare, 49 F.3d 447, 450 (8ih Cir. 1995) (voluntary statements made in hope of improving situation before plea negotiation has begun or after plea agreement is reached are not statements made "in the course of plea discussions" protected by Rule 410). In addition, the communications between Epstein's counsel and federal prosecutors at issue here ultimately did result in entry of a plea of guilty by Epstein --to specific state court charges -- thereby removing the statements from the narrow orbit of "statement[s] made during plea discussions...if the discussions did not result in a guilty plea...." which are inadmissible in The Magistrate Judge contemporaneously directed that the documents remain under seal pending ruling by the relevant institutions on the admissibility of the evidence and conditions of disclosure. The material has accordingly remained under seal in the instant CVRA proceeding before this court, as one institution charged with adjudication of the parallel victim claims. 4 EFTA01072062 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 5 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 6 of 12 proceedings against the defendant making them under Rule 410. See e.g United States v. Paden, 908 F.2d 1229, 1235 (5ih Cir. 1990)(statements made during negotiations that resulted in a final plea of guilty not protected under Rule 410), cert. denied, 498 U.S. 1039, 111 S. Ct. 710 (1991). The court also summarily rejects the government and intervenors' suggestion that the correspondence is appropriately preserved under seal under the grand jury secrecy rule codified at Fed. Crim. P. 6(e) because the subject matter of the correspondence happens to coincide with matters presented to the grand jury. Fed. R. Crim. P. 6(e)(2) prohibits particular persons from disclosing "a matter occurring before a grand jury," and Fed. R. Crim. 6(e)(6) provides that "[r]ecords, orders and subpoenas relating to grand jury proceedings must be kept under seal to the extent and as along as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury." The phrase "matter occurring before the grand jury" encompasses what has occurred, what is occurring and what is likely to occur before the grand jury, In re Motions of DowJones & Co 142 F.3d 496 (D. C. Cir. 1998), but it does not cover prosecutors' strategies, recommendations, In re Sealed Case No. 99-3091 (Office of Independent Counsel Contempt Proceeding), 192 F.3d 995 (D. C. Cir. 1999)(intemal deliberations of prosecutors that do not directly reveal grand jury proceedings are not Rule 6(e) material), or opinions about an individual's potential criminal liability. See In re Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir. 1980)(statements about potential criminal liability, even if based on knowledge of grand jury proceedings, not covered by Rule 6(e), provided statement does not reveal the grand jury information on which it is based). This follows because "it is not the information itself, but the fact that the grand jury was considering that information which is protected by Rule 6(e)."Anaya v. United States, 815 F.2d 1373, 1379 (10th Cir. 5 EFTA01072063 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 6 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 7 of 12 1987). Thus, Rule 6(e)'s provisions do not extend to the disclosure of information obtained from a source independent of the grand jury proceeding, such as a parallel or prior government investigation. In re Grand Jury Subpoena, 920 F.2d 242 (411' Cir. 1990); In re Grand Jury Matter (Catania), 682 F.2d 61, 64 (3d Cir. 1982); United States v. Smith, 787 F.2d 111, 115 (3d Cir. I 986)(fact that witness received "target letter" not subject to grand jury secrecy under Rule 6(e) where it appeared to be expression of opinion of United States Attorney, based on his or her knowledge of status of criminal investigation). Next, the court rejects the attorney intervenors' assertion of opinion-work product privilege as a shield against public release or use of the correspondence as evidence in this CVRA proceeding. Assuming without deciding that any part of the correspondence in question reflects "the mental impressions, conclusions, or legal theories" of Epstein's attorneys, Fed. R. Civ. P. 26(b)(3), any work product protection which might otherwise attach to this product was necessarily forfeited when Epstein voluntarily submitted the information to the United States Attorney's Office in the hopes of receiving the quid pro quo of lenient punishment for any wrongdoings exposed in the process. Work product protection is provided only against "adversaries." Thus, disclosure of the material to an adversary, real or potential, works a forfeiture of work product protection. United States v. Massachusetts Institute of Technology, 129 F.3d 681(1" Cir. 1997). In this case, Epstein's attorneys' disclosure to the United States Attorney's Office was plainly a disclosure to a potential adversary. The United States Attorneys' office, at that juncture, was reviewing evidence relating to Epstein' sexual crimes against minor females within the Southern District of Florida and 6 EFTA01072064 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 7 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 8 of 12 deliberating the filing of relevant federal charges; while Epstein's counsel clearly hoped to avoid any actual litigation between the United States and Epstein, the potential for such litigation was plainly there. By voluntarily and deliberating disclosing this material to federal prosecutorial authorities investigating allegations against Epstein at that time, any work product protection was necessarily lost. See e.g. In re Columbia/HC4 Healthcare Corp. Billing Practices Litigation, 293 F.3d 289 (6th Cir. 2002), cert. dismissed, 539 U.S. 977 (2003); In re Quest Communications International, Inc., 450 F.3d 1179 (10ih Cir. 2006); Westinghouse Electric Corp. v Republic of Philippines, 951 F.2d 1414, 1428-31 (3d Cir. 1991); In re Subpoena Duces Tecum, 738 F.2d 1367, 1372 (D.C. Cir. 1984). Finally, the court rejects the intervenors' invitation to craft a new federal common law privilege governing plea discussions with prosecutorial authorities under the authority conferred by Fed. R. Evid. 501. 5 Federal Rule of Evidence 501 instructs federal courts to develop federal common law privilege according to principles of common law as they may be interpreted "in the light of reason and experience." The applicable test in assessing whether federal common law should recognize a new privilege "is whether such a privilege promotes sufficiently important 'Federal Rule of Evidence 501 provides: The common law — as interpreted by United States courts in the light of reason and experience - governs a claim of privilege unless any of the following provides otherwise: • the United States Constitution; • a federal statute; or • rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. 7 EFTA01072065 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 8 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 9 of 12 interests to outweigh the need for probative evidence."Jaffee v. Redmond, 518 U.S. 1, 9-19, 116 S. Ct.1923, 135 L.Ed. 2d 337 (1996); Trammel v. United States, 445 U.S. 40, 47, 100 S. Ct. 906, 63 L.Ed.2d 186 (1980). Recognizing that there is a presumption against privileges which may be overcome only when it would achieve a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth, Adkins v. Christie, 488 F.3d 1324 (11ih Cir. 2007), citing United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 3108, 41 L.Ed. 2d 1039 (1974)( privileges are in derogation of the search for truth and should not be lightly created nor expansively construed), and that the Supreme Court has been "especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself," University of Pennsylvania v E.E.O.C., 493 U.S. 182, 189, 110 S. Ct. 577, 582,107 L.Ed.2d 571 (1990)(declining to recognize common law privilege protecting academic peer review materials), this court declines to recognize a new federal common law privilege over plea discussions as here urged by the intervenors. Congress has already addressed the competing policy interests raised by plea discussion evidence with the passage of the plea-statement rules found at Fed. R. Crim. P. 11(0 and Fed. R. Evid. 410, which generally prohibits admission at trial of a defendant's statements made during plea discussions, without carving out any special privilege relating to plea discussion materials. Considering the Congressional forbearance on this issue -- and the presumptively public nature of 6The policy behind Rule 410 is to permit a defendant to freely negotiate without fear that statements will be used against him. United States v. Knight 867 F.2d 1285 (11th Cir. 1989). 8 EFTA01072066 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 9 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 10 of 12 plea agreements in this District -2, this court declines the intervenors' invitation to expand Rule 410 by crafting a federal common law privilege for plea discussions. See e.g. Adkins v. Christie, 488 F.3d 1324 (11ih Cir. 2007)(declining to recognize medical peer review privilege in federal discrimination cases); Weiss ex reL Estate of Weiss v. County of Chester, 231 F.R.D. 202 (E. D. Pa. 2005)(declining to recognize medical peer review privilege in §1983 action); Johnson v. United Parcel Service, Inc., 206 F.R.D. 686 (M.D. Fla. 2002)(declining to recognize "self-critical analysis" privilege in Title VII race discrimination case); Aramburu v. Boeing Co., 885 F. Supp. 1434 (D. Kan. 1995Xsame). Conclusion Accordingly, the court rejects the privileges asserted by intervenors as bases for maintaining the correspondence and related pleadings incorporating the correspondence under seal in this proceeding. Finding the asserted privileges inapplicable, the court finds no legitimate compelling interest which warrants the continued suppression of this evidentiary material under seal in this proceeding. See generally United States v. Oclzoa-Vasquez, 428 F.3d 1015 (11t Cir. 2005)(reversing order sealing document in drug trafficking conspiracy prosecution in order to protect cooperating defendants and confidential informants where unsupported by record finding to rebut presumption of openness of court proceedings),and shall therefore grant petitioners' motion to unseal the 7 On January 22, 2009 Chief Judge Federico Mereno issued an administrative order requiring complete remote electronic access to all (unsealed) plea agreements extending to all members of the public and the bar, contrary to the expressed wishes of the U.S. Department of Justice. See In Re: Remote Electronic Access to Plea Agreements, Administrative Order 2009-2, United States District Court, Southern District of Florida (January 22, 2009); Marcia Coyle, Federal Prosecutors Want to Shutter Public Access to Plea Agreements , The National Law Journal, Sept. 17, 2007 (online)(DOJ asks Judicial Conference to rescind policy of making plea agreements available on line) 9 EFTA01072067 Case 9:08-cv-80736-KAM Document 188 Entered on F LSD Docket 06/18/2013 Page 10 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 11 of 12 correspondence. While the court shall also grant the petitioners' motion to use the evidence as proof of alleged CVRA violations to the extent it shall allow petitioners to proffer the evidence in support of their CVRA claims, this order is not intended to operate as a ruling on the relevance or admissibility of any particular piece of correspondence, a matter expressly reserved for detennination at the time of final disposition. It is therefore ORDERED AND ADJUDGED: 1. The petitioners' motion to use correspondence between the United States Attorneys' Office and counsel for Jeffrey Epstein to prove the violations of the CVRA alleged in this proceeding [DE 51] is GRANTED to the extent that the petitioners are granted leave to proffer the evidence in support of their CVRA claims in this proceeding. The court shall reserve ruling on the ultimate relevance and admissibility of any particular piece of correspondence until the time of final disposition. 2. The petitioners' motion to unseal unredacted pleadings incorporating the subject correspondence [DE# 51] is GRANTED, with the following proviso: The petitioners are directed to file unredacted pleadings, including attached correspondence, in the open court file. However, before placing the materials in the court file, petitioners are directed to carefully review each page of the correspondence in question and to REDACT: (1) all references to victims' names or initials; (2) all identifying information with regard to internal telephone numbers and/or emails of government attorneys or employees; (3) all identifying references or names of individuals other than Epstein relating to uncharged crimes; (4) all correspondence describing and/or attaching grand jwy subpoenas (see US Atty Correspondence Bates 329-356). 10 EFTA01072068 Case 9:08-cv-80736-KAM Document 188 Entered on FLSD Docket 06/18/2013 Page 11 of 11 Case: 13-12923 Date Filed: 07/12/2013 Page: 12 of 12 3. The petitioners shall file unredacted pleadings in the court file in conformity with the above prescriptions within TWENTY (20) DAYS from the date of entry of this order. 4. The motion for protective order submitted by Intervenors Black, Weinberg and Lefkowitz [160, 161] and motion for protective order submitted by limited Intervenor Jeffrey Epstein [162], seeking the continued suppression under seal of correspondence relating to plea discussions between Epstein's counsel and federal government prosecutorial authorities, are DENIED. DONE AND ORDERED in Chambers at West Palm Beach, Florida this 18ih day of June, 2013. Kenneth Marra United States District Judge cc. All counsel II EFTA01072069 Case: 13-12923 Date Filed: 07/12/2013 Page: 1 of 4 Exhibit B EFTA01072070 Case 9:08-cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 1 of 3 Case: 13-12923 Date Filed: 07/12/2013 Page: 2 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA JANE DOE I AND JANE DOE 2, petitioners, VS. UNITED STATES OF AMERICA, defendant. ORDER DENYING INTERVENORS' MOTION TO STAY PENDING APPEAL AND IMPOSING TEMPORARY SEVEN (7) DAY STAY PENDING APPELLATE REVIEW OF ORDER DENYING MOTION FOR STAY THIS CAUSE is before the court on the motion of Intervenors Roy Black, Martin Weinberg, Jay Lefkowitz and Jeffrey Epstein, for a stay of this court's order entered June 18, 2013 compelling disclosure of communications between intervenors and federal prosecutors in the Southern District of Florida [DE 193], together with petitioners' response in opposition to the request for stay [DE 198]. Intervenors appeal the June 18, 2013 order contesting this court's determination that the communications in question are not shielded from compelled disclosure in this Crime Victims Rights Act ("CVRA") proceeding by principles of work product privilege; grand jury secrecy; restrictions on the admissibility of statements made during plea discussions under circumstances prescribed by Fed. R. Evid. 410, or the crafting of a new common law privilege under Fed. R. Evid. 501. Intervenors ask the court to stay this order pending the outcome of an interlocutory appeal contemporaneously lodged by Intervenors Roy Black, Jeffrey Epstein and Martin Weinberg [DE 194, 195 and 196] . EFTA01072071 Case 9:08-cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 2 of 3 Case: 13-12923 Date Filed: 07/12/2013 Page: 3 of 4 The granting of a motion to stay pending appeal is an extraordinary remedy granted only on a showing of a "probable likelihood of success on the merits on appeal," or upon a lesser showing of a "'substantial case on the merits' when 'the balance of the equities weighs heavily in favor of granting the stay.'" ' United States v. Hamilton, 963 F.2d 322 (1 Cir. 1992), citing Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11'h Cir. 1986)(quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5'h Cir. 1981), cert. den., 460 U.S. 1042 (1983). In this case, intervenors have neither demonstrated a probable likelihood of success on the merits on appeal, 2 see e.g. In re MSTG, Inc., 675 F.3d 1337 (71h Cir. 2012) (rejecting request for recognition of new privilege for settlement discussions; finding need for confidence and trust alone insufficient reason to create a new privilege, and noting that Congress, in enacting Fed. R. Civ. Evid. 408, governing admissibility of statements made during "compromise negotiations, " did not take additional step of protecting settlement negotiations from discovery); In re Qwest Communications International, Inc., 450 F.3d 1179 (10th Cir. 2006) (noting circuit courts' near Absent being able to establish the likelihood of success on the merits, a movant for emergency stay relief must show that the "equities" — measured by whether movant will suffer irreparable damage absent a stay; whether the nonmoving party will suffer no substantial harm from issuance of a stay and whether the public interest will be served by issuing the stay — all tip strongly in his or her favor. Robles Antonio v. Barrios Bello, 2004 WL 1895123 (1 1 'h Cir. 2004), citing Garcia - Mir v. Meese, 781 F.2d 1450, 1453 (1 Cir. 1986). Intervenors fail to make this alternative lesser showing as well. 2 There is also a substantial question as to whether the denial of a motion for protective order against compelled disclosure of allegedly privileged communications is immediately appealable under the Perlman doctrine, which derives from the criminal grand jury context, Penman v United States, 247 U.S. 7 (1918), as urged by intervenors as the jurisdictional premise for their interlocutory appeal. See e.g. United States v. Copar Pumice Co., Inc., 714 F.3d 1197, 1206-1209 (10ih Cir., May 6, 2013) (questioning limited scope and vitality of Perlman following Mohawk Industries v. Carpenter, 558 U.S. 100, 130 S. Ct. 599, 175 L. Ed.2d 458 (2009) (class of collaterally appealable orders does not extend to disclosure orders adverse to attorney-client privilege) and cases cited infra. EFTA01072072 Case 9:08- cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 3 of 3 Case: 13-12923 Date Filed: 07/12/2013 Page: 4 of 4 unanimous rejection of selective waiver concept as applied to attorney-client and work-product privileges), nor that the balance of equities weighs heavily in favor of granting a stay. It is therefore ORDERED AND ADJUDGED: I. The Intervenors' motion to stay the court's June 18, 2013 order pending interlocutory appeal [DE 193] is DENIED. 2. However, this court shall temporarily stay its June 18, 2013 compelling disclosure of communications between intervenors and federal prosecutors for a period of seven (7) days from entry of this order, up through and including Monday, July 15, 2013, in order to permit intervenors an opportunity to renew their request for stay relief before the Eleventh Circuit Court of Appeals. If intervenors apply for a stay in the Court of Appeals on or before July 15, 2013, the temporary stay imposed by this order shall remain in effect pending the Eleventh Circuit's disposition of the application for stay. DONE AND ORDERED in Chambers at West Palm Beach, Florida this 6ih day of July, 2013. Kenneth A. Marra United States District Judge cc. All counsel EFTA01072073