Case: 13-12923
Date Filed: 07/15/2013
Page: 1 of 12
No. 13-12923
IN THE
JANE DOE NO. 1 AND JANE DOES NO. 2,
Plaintiffs-Appellees
v.
Defendant-Appellee
Intervenor/Appellants
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]
Martin G. Weinberg
20 Park Plaza, Suite 1000
Boston, Massachusetts 02116
Tel: (617) 227-3700
Fax: (617) 338-9538
[email protected]
EFTA01072076
Case: 13-12923
Date Filed: 07/15/2013
Page: 2 of 12
Contrary to plaintiffs' arguments, the standards governing the issuance of a
stay pending appeal are amply satisfied in this case. Absent a stay there will be
irreparable injury to the intervenor/appellants, as the correspondence which they seek
to have remain confidential will have been disclosed. Given the common
understanding of both criminal defense counsel and the government that their written
settlement and plea discussions will remain confidential and will not be available
upon demand to third-party litigants, the important issues raised in this appeal require
resolution which can only be fairly accomplished by the granting of the requested stay
so the Court can address those issues. Further, given the absolute absence of any
identified prior precedent that would give notice to criminal defense counsel as to
when, if ever, their written communications would be disclosed to anyone other than
the prosecutors, and then subject to Fed. R. Evid. 410 and a universal practice of
safeguarding the confidentiality of plea discussions under circumstances such as
those herein, a decision on the merits and the provision of meaningful judicial
guidance on the issues raised is of critical import, not outweighed by any palpable
prejudice to the plaintiffs.
BACKGROUND
First, at various points in their Opposition, plaintiffs complain of how long this
action has been pending. Opposition at 1, 2, 16, 19. The delay of which plaintiffs
complain, however, is not attributable to Mr. Epstein or the attorney-intervenors.
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Instead, plaintiffs, in status conferences in July and August, 2008, knowingly waived
or failed to insist upon their right to have the district court "take up and decide any
motion asserting a victim's right forthwith," 18 U.S.C. §3771(d)(3). Eighteen months
then elapsed while plaintiffs ignored their CVRA action in favor of successfully
pursuing civil monetary remedies against Mr. Epstein prior to, rather than
concurrently with, litigating their CVRA rights. See Motion for Stay Pending Appeal
("Motion") at 5. Another nineteen months elapsed between the filing of the
government's motion to dismiss in November, 2011, and the concomitant stay of
discovery, and the district court's ruling on the motion in June, 2013. Mr. Epstein's
right to pursue his appellate remedies before the confidential communications of his
attorneys are disclosed should not turn on the litigation conduct of others.
Second, plaintiffs' statement that they have already seen "significant parts of
the correspondence," Opposition at 15 n.7, is misleading, as only correspondence
from the government to Mr. Epstein's attorneys was produced to plaintiffs pursuant
to the court's order in Jane Doe #2 v. Epstein, No. 08-80119-MARRA, Doc. 462;
correspondence authored by Mr. Epstein's counsel during the course of the
negotiations has not been disclosed. See Tr. 8/12/11 (Doc.208) at 17, 64-66
(intervenor-attorney Black states, without contradiction from plaintiff's counsel, that
plaintiffs have only the government's side of the correspondence); Doc. 100 at 2 ("To
the knowledge of the government, the Jane Does have only received the portions of
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the correspondence written by government attorneys — all of the writings of Mr.
Epstein's attorneys, except for a few short portions . . . — have been redacted").
Indeed, the very reason why plaintiffs are opposing the requested stay is an effort to
speed the disclosure to them of correspondence they do not yet have.
I.
Plaintiffs' ridicule of intervenors' confidentiality/privilege claim, Opposition
at 10, is predicated on an erroneous characterization of the arguments actually
advanced by intervenors. Intervenors do not contend that they had a confidential
relationship with the government prosecutors to whom the correspondence was
addressed. Instead, they rely on their opinion work product privilege and the
confidentiality of plea/settlement negotiations which has its roots in Rule 410 and the
long-standing reliance of both prosecutors and criminal defense attorneys on the
understanding — never before challenged until the litigation brought by the plaintiffs
— that communications to prosecuting authorities made in the effort to resolve a
criminal investigation of, or criminal charges against, their client will remain
confidential and will not be disclosed to third parties trying to acquire and then use
defense counsel's written communications. The need for such confidentiality in the
criminal negotiation process is no more "far-fetched" than the civil mediation
privilege which has been recognized by a number of courts, and which involves
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communications to adversaries, see Motion at 14-15, and which, like the privilege
asserted by intervenors, is essential to the functioning of an important process, here,
the plea negotiation process which is so centrally critical to the ability of our criminal
justice system to function, a position with which the government agrees. See Doc.
100. Plaintiffs profess to find it "unclear" why criminal defense attorneys would
believe such communications would remain confidential, Opposition at 10-11, but
intervenors have explained at length in their Motion just why this is and must be so,
see Motion at 7-12. Plaintiffs have failed to identify a single applicable precedent
where communications such as those at issue here — lawyer to lawyer
communications involving concrete proposed federal criminal allegations— have been
disclosed to third parties. That the CVRA entitles victims to confer with the
government regarding plea proceedings, see Opposition at 11, does not alter the
existence of the confidentiality privilege or the justifiability of defense attorneys'
reliance on it when negotiating on behalf of their clients.
The right to confer has never been interpreted as a right to read, receive, or use
plea/settlement correspondence falling within Rule 410. The fact that defense
attorneys know that the prosecutor may at some point be required to confer with an
alleged victim has not changed the practices of defense counsel in communicating
with the prosecution, but, as addressed in intervenors' Motion at 8-9, knowledge that
henceforth, under the rationale of the district court's order, such correspondence may
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be fair game for discovery in civil or other actions against their clients surely will,
and not for the better in terms of their abilities to provide their clients with effective
representation. In short, however the right to consult under the CVRA is ultimately
defined in the underlying case, not even the plaintiffs have contended — or provided
any support for the proposition — that the disclosure of written plea and settlement
negotiations between defense counsel and the government is part of or inherent in the
statutory rights afforded victims by the CVRA.
That Mr. Epstein pled guilty to state charges does not foreclose the applicability
of Rule 410, which applies only to guilty pleas in federal court to the offenses which
were the subject of the plea negotiations. See Motion at 11-12. The negotiation
correspondence at issue, which concerned afederal criminal investigation of specific
federal offenses that were the subject of two federal grand jury investigations, fall
well within the core of defense counsel to prosecutor plea and settlement letters, see
Tr. 8/12/11 (Doc. 208) at 18, and the state court plea was ancillary to those
negotiations. In any event, plaintiffs have not narrowly tailored their demand for
production of the correspondence to those portions relating to Mr. Epstein's position
with respect to the CVRA or to those concerning the state court plea but have instead
sought disclosure of the entirety of the correspondence authored by Mr. Epstein's
counsel. It is clear that plaintiffs seek more than just access to the correspondence:
they plan to use it to prove their case, Tr. 8/12/11 (Doc. 208) at 64-65, despite the fact
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that, as the district court recognized, the central issue is whether the government,
which alone had statutorily imposed duties, not Epstein, violated the CVRA, Id. at
33.
Plaintiffs' argument regarding the immediate appealability of the district
court's order, see Opposition at 13, has been fully answered in interveors' Response
to Motion to Dismiss, filed on July 12, 2013.'
II.
Where privileged or confidential communications are concerned, the
irreparable injury inheres in their very disclosure. See Motion at 15-17, and cases
cited therein; Tr. 8/12/11 (Doc. 208) at 18 (intervenor-attorney Black describes
correspondence at issue as classic plea negotiation opinion work product). The single
case cited by plaintiff, Northeastern Florida Chapter of Ass '12 of Gen. Contractors
of America v. City offacksonville, 896 F.2d 1283 (11th Cir. 1990), Opposition at 14,
did not involve privileged or confidential communications but instead the question
whether the plaintiff had demonstrated the irreparable prejudice essential for the entry
of a preliminary injunction. It is, accordingly, quite irrelevant to the present case. Nor,
for irreparable injury purposes, does it matter that the cases cited by intervenors were
' Plaintiffs' contentions with respect to Rule 501, see Opposition at 12-13, have
already been answered in intervenors' Motion at 12-15.
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decided pre-Mohawk. See Opposition at 15. Mohawk was concerned with
interlocutory appealability, not with whether the standard for a stay pending appeal
has been satisfied.' Nor does it detract in any way from intervenors' irreparable injury
argument, as they have no remedy through appeal from a final judgment, as would a
party in the action. See Response to Motion to Dismiss at 6-12. For non-parties such
as intervenors, the injury remains irreparable.
As addressed at page 3, supra, plea negotiation communications do not lose
their privilege by being communicated to an adversary, see Opposition at 15; indeed,
Rule 410 presupposes that the information has been communicated to the
government. The Rule 410/work product privilege is not waived by communications
to the government in the context of plea negotiations, but is defined by it.
The victims may believe that they need the correspondence at issue to move
forward with their case, see Opposition at 16; but see pages 8-9, infra, but that does
not mean that they are entitled to have it. That is the issue which will be decided by
this appeal, and because intervenors have shown that they have a substantial
likelihood of success on the merits, plaintiffs may not be entitled to it to pursue their
claims against the government. That issue should be resolved before the
2 While it is true that the district court did deny intervenors' request for a stay,
Opposition at 7-8, the court did so without awaiting intervenors' reply to plaintiffs'
opposition, which was due to be filed on the same day as the court entered its order
denying the stay.
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correspondence is disclosed, given the attendant irreparable injury that would befall
intervenors from disclosure of their confidential communications.
STAY.
Plaintiffs contend that they will be injured by the requested stay because their
efforts to have Mr. Epstein prosecuted will be stymied. See Opposition at 17. The fact
of the matter, however, is that plaintiffs cannot force the government to prosecute Mr.
Epstein. The CVRA only affords victims "[t]he reasonable right to confer with the
attorney for the Government in the case," 18 U.S.C. §3771(a), and specifically
provides that "[n]othing in this chapter shall be construed to impair the prosecutorial
discretion of the Attorney General or any officer under his direction." §3771(d)(6).
"What the government chooses to do after a conferral with the victims is a matter
outside the reach of the CVRA, which reserves absolute prosecutorial discretion to
the government." Doe v. United States,
F.Supp.2d
, 2013 WL 3089046 at
*5 (S.D.Fla. June 19, 2013). See, e.g., United States v. Thetford,
F.Supp.2d
,
2013 WL 1309851 at * I (N.D.Ala. March 29, 2013)(CVRA rights "do not extend to
giving crime victims veto power over the prosecutor's discretion"); id. at *4 (CVRA
does not confer on victims "the right to dictate Government strategy or demand who
to prosecute"); United States v. Rubin, 558
F.Supp.2d 411, 418 (E.D.N.Y.
2008)(CVRA "gives victims a voice, not a veto"). Even if the CVRA affords crime
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victims a "reasonable" right to confer with government attorneys before charges are
brought, it does not provide them with any power to insist that an individual be
prosecuted, nor does it confer on them the right to be privy to communications
between the government and the individual's counsel.' Nor do plaintiffs' subjective
beliefs that Mr. Epstein somehow obtained a sweetheart deal from federal prosecutors
exempt the correspondence from the operation of Rule 410. The question is one of
law, not "Law and Order." See Opposition at 18 n.9.
IV.
The issue in this appeal is not whether plaintiffs will be able to vindicate their
CVRA rights, see Opposition at 17, but whether they are entitled to access and use
confidential plea negotiation communications in their effort to do so. Even if the
public is interested in how the government arrived at its non-prosecution agreement
with Mr. Epstein, Opposition at 17-18 & n.9, that is not the question which is at stake
with respect to intervenors' motion for a stay pending appeal: whether the public has
an interest which will be harmed by granting the requested stay. Plaintiffs already
have received, albeit redacted, a fulsome disclosure of the government's plea
negotiation communications, communications which they have detailed at pages 7-18
'In any event, the government consulted with plaintiffs on multiple occasions;
whether that consultation sufficed to satisfy the CVRA will be decided by the district
court.
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of Attachment "B" to their Opposition. It is the government which has duties under
the CVRA, and the opinions of defense counsel are neither directly related to the
government 's fulfillment of its consultation obligations under the CVRA nor essential
to any public monitoring of how the government exercises its discretion. There is no
public interest which will be harmed by granting the requested stay, but there is a
significant one if the stay is denied insofar as the effect on the confidentiality of
future plea bargaining when the negotiations are in the context of possible civil
litigation. Moreover, plaintiffs' argument begs the question whether the public has
a right to knowledge of the contents of intervenors' communications with the
government in the course of settlement/plea negotiations. For the reasons addressed
in Section II of intervenors' Motion and Section I, supra, it does not.
CONCLUSION
The Court should not, as plaintiffs have requested, rush its consideration of
intervenors' Motion. This Court should, at a minimum, stay the district court's order
until it has ruled on the plaintiffs' motion to dismiss, to which intervenors filed a
response in opposition on July 12, 12013. 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.
I0
EFTA01072086
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Respectfully submitted,
/s/ Roy Black
Roy Black
Jackie Perczek
Black, Srebnick, Komspan &
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
I, Martin G. Weinberg, hereby certify that on this 15th 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
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