Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 1 of 113

Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 1 of 113 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No.: 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOES #2, Petitioners, - Vs- UNITED STATES, Respondent. HEARING BEFORE THE HONORABLE KENNETH A. MARRA Friday, August 12, 2011 United States Federal Courthouse West Palm Beach, Florida 33401 2:00 - 4:19 IMO. Stenographically Reported By: Melinda L. Colchico, FPR, RDR, CRR 5 61-8 35-022 0 EFTA01122989 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 2 of 113 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: On behalf of the Petitioners: Brad Edwards, Esq. Farmer Jaffe Weissing Edwards Fistos & Lehman 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Paul G. Cassell, Esq. USJ Quinney College of Law University of Utah 332 South 1400 East, Room 101 Salt Lake City, Utah 84112-0730 (801) 585-5202 Jay C. Howell, Esq. Jay Howell & Associates 644 Cesery Boulevard, Suite 250 Jacksonville, Florida 32211 (904) 680-1234 On behalf of the Respondent: Dexter A. Lee, Esq. Marie Villafana, Esq. Assistant U.S. Attorneys 99 NE 4th Street, Suite 300 Miami, Florida 33132 (305) 961-9320 ALSO PRESENT: Roy Black, Esq.. Black Srebnick Kornspan & Stumpf 201 S. Biscayne Boulevard, Suite 1300 Miami, Florida 33131 (305) 371-6421 Bruce Reinhart, Esq. 250 S. Australian Avenue Suite 1400 West Palm Beach, Florida 33401 (561) 202-6360 5 61-8 35-022 0 EFTA01122990 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 3 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS THE COURT: Good afternoon. Please be seated. This is the case of Jane Doe No. 1 and Jane Doe No. 2, versus United States, Case No. 08-80736. Will counsel state their appearances, please. MR. LEE: Good afternoon, Your Honor. May it pleas the Court. For the United States of America, Marie Villafana, Assistant United States Attorney, and Dexter Lee, Assistant United States Attorney. Good afternoon. THE COURT: Good afternoon. MR. EDWARDS: Good afternoon. On behalf of Jane Does 1 and 2, Brad Edwards, as well as my co-counsels, Paul Cassell and Jay Howell. THE COURT: Good afternoon. MR. BLACK: Your Honor, good afternoon. Roy Black appearing on behalf of the intervening lawyers, Black, Weinberg and Lefkowitz. THE COURT: Good afternoon. MR. REINHART: Good afternoon, Your Honor. Bruce Reinhart on behalf of myself. THE COURT: Good afternoon. Anyone else that's going to be participating as an attorney? All right. We have a number of matters to go over today. I thought the first thing I should do is figure out 561-835-0220 EFTA01122991 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 4 of 113 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 who's going to be participating in the proceedings. So I think I should deal with the intervenors' motions first before we get to any of the substantive motions. So, Mr. Reinhart, why don't I hear from you first. MR. REINHART: Good afternoon, Your Honor. THE MR. be here and I COURT: Good afternoon. REINHART: Let me start shouldn't be here but I by saying I don't want to feel like I have to be. What is pending before you today is a motion by the plaintiff. to address what they purport to be violations of the Crime Victims' Right Act by the government. However, buried in tha: motion, for reasons that escape me to this day, are allegation.:, that I, who am not a party to this litigation, have never beer counsel in this litigation and was minding my own business, have now been alleged to have violated the Department of Justice's regulations and the Florida Bar rules. If you look at the face of the motion, it's clear that there's absolutely no reason for that to be in the motion other than it's a personal attack for the purpose of harassment and abuse. To my knowledge, these allegations have never been sent to the Florida Bar, even though Mr. Edwards, as a member of the bar, would have an obligation to report them if he believed they were true. But he hasn't. They have never been reported to the Department of Justice, even though there are civil and criminal sanctions, if, in fact, they believed it was 5 61-8 35-022 0 EFTA01122992 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 5 of 113 ti 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 true and they believed I did what they said I did. Rather than putting these allegations into that sot: of a forum, where I would have a chance to respond and the investigation would be confidential and I could clear my name in private, they've thrown them into this litigation in a public pleading and now they say I shouldn't be allowed to respond to it. THE COURT: Well, haven't you really responded to it? MR. REINHART: Judge, I've said what I want to say but there's been no finding. There's been no -- frankly, there's been no inquiry why in the first place they did what they did, and I think that's really the issue before the Court today. It's not the merits of whether what they say is true or not true. It's not, but that's not the issue for you today. The issue is whether the Court is going to sanction this sort of behavior and whether we're going to have a legal system where I could stand here in a commercial litigation case and put in a pleading that my neighbor is a tax evader or that th guy down the street is cheating on his wife. I mean, we have rules of court that are supposed to limit the facts at issue to the facts at issue. And if we start letting people simply make ad hominem attacks outside of the four corners of the case, the Court can't allow that. So what the Court ought to do, most respectfully, in this case, is to -- whether you allow me to intervene and 561-835-0220 EFTA01122993 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 6 of 113 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pursue it myself or whether you do it on your own, you ought to convene some sort of a proceeding and make the plaintiffs justify why they put these allegations in this pleading when they so clearly don't belong there and what, if any, investigation they did to support them. And that's what I'm asking you to do today is to simply convene that process, and if they complied with the rules of the court and they did their sufficient investigation, then the proceeding will show that. And if they were reckless and they were malicious and they did it just because they could, they ought to be sanctioned for it, and the Court ought to send a message that you're not going to tolerate that sort of behavior. So, Judge, in short, that's what I'm asking you to do, either exercise your discretion under Rule 24(b) to allow me to be a permissive intervenor and pursue those allegations myself, or to exercise your authority under Rule 11 to sua sponte issue an order to show cause and convene that proceeding. THE COURT: If I let you intervene to try and clear your name from what you consider a slanderous or libelous attack, aren't I essentially inviting anyone who has a slanderous or libelous or defamatory statement made against them in litigation, inviting them to come in and intervene in court and have the court conduct a mini-trial on whether or not the allegations are true and -- I mean, I'm basically going to 5 61-8 35-022 0 EFTA01122994 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 7 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 open up the legal system to anyone who feels offended by something that's said in court to come in and start mini-lawsuits within a lawsuit. I'm a little concerned about, you know, opening thr door to that kind of a process. MR. REINHART: And I understand that, and I agree. However, first of all, this is permissive -- I'm requesting permissive intervention under Rule 24. So in the first instance, you have the discretion to be the gatekeeper in tha: instance, not to let everybody in. I'm not saying I have an absolute right to be here. I'm saying you have the discretion to allow me to be here and to argue these points. So that's my first response, is the Court can act as a gatekeeper. And specific to the facts here, all you have to do is look at the face of the pleading to realize that these allegations have nothing to do with this cause of action. It's not even close. I would think in another case when the Court might look at the face of the pleading and say, well, I can understand why this might be here, you can exercise that gatekeeping function. In the alternative, Judge, I'm not asking you to let everybody in. I'm asking you, as the Coln., to police your own courtroom and issue an order to show cause for behavior that's occurred in front of you that at least on its face is improper. And that's certainly a proper function for the Court. Again, that doesn't set a precedent that 5 61-8 35-022 0 EFTA01122995 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 8 of 113 P 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anybody who wants to complain can complain. It's the Court policing its own backyard. THE COURT: All right. Thank you. Who wants to respond? Mr. Edwards? MR. EDWARDS: Thank you, Your Honor. Your Honor, a:: you recognized from our pleadings, we feel that this particular motion serves no purpose but to delay and prejudice the plaintiffs from achieving justice. As you know, we represent two victims of many victims of molestation by Jeffrey Epstein, and there's one issue here and that's whether or not the Crim Victims' Rights Act and their rights under that act were violated. First, we don't believe that Mr. Reinhart has standing to make the arguments or THE COURT: Well, who has standing to make the arguments other than the person that you attacked in your motion? MR. EDWARDS: Well, a nonparty in this proceeding does not have standing to make a Rule 11 sanction motion. So he's asking for -- THE COURT: He's asking to come into court so he can seek that kind of relief. MR. EDWARDS: That's the kind of satellite litigation we think should be avoided here. In fact, the case law is clear that permissive intervention, if denied, is virtually 5 61-8 35-022 0 EFTA01122996 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 9 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 never overturned on appeal because we don't want to encourage this type of satellite litigation. A Rule 11 standard, as we know, is an objective standard and the analysis is whether a reasonable attorney in like circumstances could believe that his actions were factually and legally justified. We believe there was a bad deal that went down We have circumstances here that we are still trying to figure ou: how it happened and why it happened, and the circumstances that we had before we put them into these pleadings is simply that Mr. Reinhart was a U.S. Attorney from 1996 through 2008; yet on October 23rd, 2007 -- THE COURT: We don't need to go over all the facts again. I know what the facts are. I know what you said in your pleading. I know what Mr. Reinhart said in response. And I don't -- I'm not here to decide whether there was or was no. a bad faith allegation. I'm here to decide whether or not I should allow Mr. Reinhart into the proceeding in order to litigate that whole issue. MR. EDWARDS: And we're asking that you deny that motion. If it's granted, we would like to take discovery on that matter, including his deposition. THE COURT: All right. Thank you. Mr. Lee, do you have anything you wanted to say? MR. LEE: Yes. Thank you, Your Honor. We did not 5 61-8 35-022 0 EFTA01122997 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 10 of 113 IL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 oppose Mr. Reinhart's motion. We basically view this as matter between the petitioners' counsel and Mr. Reinhart. THE COURT: All right. At this point, I'm going to reserve ruling. I'm not going to -- I'm kind of reluctant tm grant the motion, but I'm going to give it some further thought. There's no need to have a ruling on that today for purposes of Mr. Reinhart's concerns. So I'll reserve ruling. All right. Let me hear from Mr. Black on the intervention by the attorneys. MR. BLACK: May it please the Court, and good afternoon. THE COURT: Good afternoon. MR. BLACK: We have filed -- the three lawyers who previously represented Mr. Epstein have filed for our right to intervene under Rule 24(a) as an intervention of right becaus our issue relates to the property or the transaction. THE COURT: Are you saying you have is it as a matter of right or -- MR. BLACK: Yes. THE COURT: permissive intervention? MR. BLACK: No, as a matter of right. I just have few cases to cite to the Court. In Chiles versus Thornburgh, it's an Eleventh Circuit case, 1989, 865 F. 2d 1197, the court says, "The Supreme Cour' has held that an interest under Rule 24(a)(2) means a 561-835-0220 EFTA01122998 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 11 of 113 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 'significantly protectable interest.'" The Eleventh Circuit has gone on and In Re: Grand Jury Matter, which is 735 F. 2d 1330, to say that -- it was a motion to intervene. The district court disallowed it. It went up to the circuit. It was remanded, and the court says: We have recognized that a district court should allow intervention by a client in the first instance as soon as the attorney/client privilege issue is raised. That was a grand jury proceeding dealing with a client seeking to protect his attorney/client privilege, and the court held that intervention was as a matter of right. Now, that obviously was a criminal investigation. In terms of the -- on the civil docket, this court decided in El-Al Residences v. Mt. Hawley Insurance, which is at 716 F. Supp. 2d 1257, an opinion by Magistrate Judge McAliley, in which he says that the law in this circuit and others is clear that this court must allow intervention by a client in the first instance as soon as the attorney/client privilege is raised, citing cases. Colorable claims of attorney/client and work product privilege are a textbook example of an entitlement to intervention as a matter of right, and citing particular cases. THE COURT: Now, let me ask you about that question of privilege. As I understand your motion, you're claiming that documents that were exchanged between yourself and the 561-835-0220 EFTA01122999 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 12 of 113 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 other attorneys representing Mr. Epstein and the United Stater Attorney's Office and maybe the State of Florida I don't remember if the -- MR. BLACK: It is just the United States Attorney, Your Honor. THE COURT: Okay. The United States Attorney. During the negotiations that resulted in the non-prosecution agreement are somehow work product, am I correct? MR. BLACK: Yes, sir. THE COURT: Okay. How can a letter between you and your co-counsel and an adversary in a criminal prosecution be considered work product, if it's given to the adversary? MR. BLACK: Yes, sir, and I am happy to answer that question. In order to do so, I have to give the Court some background as to the duties and functions of lawyers as they are of this date in our sentencing system, under the guidelines system and under the particular rules, not only of the court but of the ethical rules of the ABA and the Florida Bar and rules issued by the courts. To begin with, the Supreme Court has recognized fol long time that plea bargaining is an essential part of the administration of justice. It all goes back to the Santobellc, case. That was 40 years ago. The world has changed significantly since then. I just looked at the statistics. The last year 561-835-0220 EFTA01123000 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 13 of 113 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could find in 2005, 87 percent of all federal criminal cases were resolved by a guilty plea and 3.9 percent were resolved by a trial. We've turned into a system of guilty pleas rather than a trial system. And because of that, the courts have pu: a lot of duties and obligations on lawyers dealing with this plea bargaining process. And as a result of that, the courts and the rules have added sanctions -- excuse me, safeguards to protect us because of communications made during the course c: this plea bargaining process. And I think that is really wha: we trying to get to here. There are safeguards that have been in effect since -- for almost 80 years. And there's a case, United States v. Herman back in the seventies from the Fifth Circuit, saying that the -- the old Fifth Circuit, that we have recognized a type of immunity for any statements made during the course of plea bargaining. And then the Supreme Court and Congress enacted Rule 11(e)(6), which became Rule 11(f), and, of course, now refers us to Rule 410. So those rules provide safeguards. What they do is they say if you engage in the plea bargaining process, there is an immunity for the statements that are made. Any statements that relate to the plea bargaining process are immunized. They don't use the word "immunization" but they make it clear that that's the type of protection or cloak that's given to these kind of communications. THE COURT: You're talking about inculpatory 561-835-0220 EFTA01123001 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 14 of 113 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statements, aren't you? MR. BLACK: Any statement; any statement made during the course of plea bargaining. Rule 410 speaks, by the way, of civil and criminal, and it says nothing about incriminating or inculpatory or admissions of guilt. Any statement made during the course of the plea negotiating process is given a type of immunity. THE COURT: I thought that rule relates to admitting statements in evidence during the course of a trial; not that it's a privileged statement that can never be disclosed. Am I incorrect about that? MR. BLACK: Well, I don't -- I'm not -- that's a very good question that we have struggled some with. What are the obligations of, for example, the United States Attorney when they receive communications from defense counsel under Rule 1_ and under Rule 410? Under Rule 11, they cannot even make derivative use of it so they couldn't take that information and give it to the FBI, for example, to continue investigating. I don't believe that they could give to it third parties. I think it would be a violation of the rule to use it in any way other than in determining the type of plea that they would offer to a defendant. Beyond that, I do not believe that it can be used for any purpose by the government, and I don't believe that anybody could use it for any purpose. But even so, in this case, the 561-835-0220 EFTA01123002 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 15 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 purpose the plaintiffs want for this is to use it in litigation. So we don't have to worry about if they're going to disseminate it to the media or use it to write a book, or what have you. They intend to use it as evidence in this proceeding. So I don't know that we need to necessarily address any other kinds of uses of this material. THE COURT: Is this material -- first of all, how does -- how do the plaintiffs in this case know about it? Don't they already have it in their possession? MR. BLACK: No. They have obtained the government responses and communications to us. The courts have redacted -- or the government has redacted any of our communications to the government. Now, there are extensive communications. I don't have it here, but my folder is about this thick and I have never been in a case that has had a— much, particularly written communication, from defense counsel to the government as this case has. We have discussed with them a panoply of things. It's the classic opinion work product that we talk about, wha: the statutes mean, what the import of the statutes are, what the cases are, what the discretion of the Attorney General is. We discuss federalism, the differences between state and federal law enforcement; whether or not the government should proceed with this case because of various policy reasons. This is classic opinion work product that we send to the government. 561-835-0220 EFTA01123003 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 16 of 113 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, I know what the Court's ultimate question is: Well, if you send it to the government, why should I give it any kind of confidentiality or privilege? The reason I'm going through this is that we criminal lawyers know that today anything that we send to the government is under this cloak o a type of immunity; that it cannot be used for anything. The government cannot use it in their case. They can't use it in their investigation. They can't use it for anything other than the purpose for which we give it to them, and that's to determine whether or not we can come to a plea negotiation And one of the policy decisions here, and this is why I believe that a privilege applies, is that if the Court should say a civil plaintiff could obtain our communications with the government, in which we discuss everything in the world about this client, and use it in a civil case against the client, all this is going to do is to begin to prevent us from having those kind of communications. And all these cases about plea bargaining say that the most important thing is to have open, honest and frank discussions between the parties to see if any kind of agreement can be reached, and since you have these open and frank conversations you don't have to worry that these materials can in any way be used against your client. THE COURT: All right. Do you have any cases that address this principle in the context of -- similar to what we are doing, with where someone was trying to get this kind of 561-835-0220 EFTA01123004 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 17 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information in a civil case? MR. BLACK: I have never seen a case, a civil case, in which a third party plaintiff has been able to obtain letters and communications and briefs of defense counsel sent to a prosecutor in order to seek a plea bargain. There is no such case. THE COURT: And what cases are you relying on for the proposition that these are cloaked with some type of privileg of non-disclosure? MR. BLACK: Yes, sir. I would rely on United State versus Herman, which is 544 F. 2d 791. That's a Fifth Circui- case of 1977. And, of course, the classic case is Santobelle. For some reason I don't have it right here in my folder, although I've got it right here, I believe, which is United States Supreme Court at 404 U.S. 257. So those talk about the safeguards. I just wanted to add two things to this, after I pick up my notes. The courts -- in addition to encouraging plea bargaining -- issued a series of opinions starting in the late 1990s, starting with the Second Circuit, moving to the Ninth Circuit, and now all the circuits do this, in which they say that defense lawyers are ineffective and commit malpractice if they do not communicate with the prosecutor in seeking a plea bargain. There's one case, United States v. Leonti, which is Ninth Circuit case, which says that you not only have to 561-835-0220 EFTA01123005 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 18 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 communicate with the prosecutor, you have to go with your client during the briefings. You have to keep them advised to what your client is doing and you have to follow this all the way through the end. So the courts put an obligation cn to follow through on this. Now, to get to the work product privilege THE COURT: Before you move on -- MR. BLACK: Yes, sir. THE COURT: -- I don't remember you citing thes. cases or making this argument in your brief. Did I miss it or is this a new twist on what you've -- based upon my question to you? Or is this a new argument that you're raising that you didn't raise before? MR. BLACK: Well, in our -- we filed a motion for intervention and generally set forth what we I intended to do, and the plaintiffs then responded saying that, we object to intervention but request the right to brief whether or not the work product privilege applies if we're granted intervention. So we're at the stage of intervention not at the time of developing the scope of what the privilege is, but the Court asked me, you know, obviously what the bottom line is. But I think that the only real issue here is intervention. I'm happy to discuss, you know, the contours of the privilege and why it applies in this case. THE COURT: So you're saying -- your position at this 561-835-0220 EFTA01123006 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 19 of 113 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point is, I've made an assertion of privilege; I as -- just on that assertion alone, without regard to the merits of whether the documents are or are not privileged, your mere assertion o: the privilege requires me to let you in in order to try and defend that claim? MR. BLACK: Well, I don't think it's quite that cut and dry. I have made -- I have asserted the privilege. I have to have some basis for it. In other words, I couldn't just make some frivolous comment and say, you know, there's an attorney/client privilege or this or that. I think I have to make some statement that there is some good faith basis for saying this. And in our papers, we did this. I'm happy to say more, but I think there's certainly enough here for the Court to say that it is a matter that is of serious concern and that we ought to be able to intervene in order to address it with the Court. Because if we don't address it, it will be lost. THE COURT: All right. So, again, I'm trying to make sure I didn't miss something in the papers. As I understood your moving papers, you claim that these are work product privileged documents or there was some grand jury material involved in this. MR. BLACK: Yes. There is some 6(e) material as well. THE COURT: All right. And, again, maybe I missed it 561-835-0220 EFTA01123007 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 20 of 113 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in all the materials I had to go through for today, but did you make the claim in your papers that it's work product because part of the attorney -- criminal defense attorney's responsibility is getting into plea negotiations and there'-, this privilege of communications with the prosecutors in dealing with plea negotiations; was that line of -- MR. BLACK: Yes. THE COURT: -- reasoning made? MR. BLACK: Right, because that's all these papers are. We said it's privileged because of these communications, because of the importance of keeping open and frank communications, and that it fits under the privilege. THE COURT: I'm sorry. I didn't mean to interrupt you. What else did you want to say? MR. BLACK: All right. The other thing that I wanted to mention is that there are the restatement of the law regarding lawyers in the latest -- from the American Law Institute, used as an example under the purpose of 410, where party actually sends documents to the government to examine under a limited -- under confidentiality and limited use, and the American Law Institute says that does not waive the work product privilege. The difference -- I don't want to get too deep into it right now, but the difference between the two is you can give work product to other people and not waive its type of 561-835-0220 EFTA01123008 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 21 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work product; whereas you do in the attorney/client privilege. As soon as you give anything under the attorney/client privilege to a third party, you waive it, but not under work product. If it still has some protection associated with it, the question is, under work product, did you give it to people just to use however they want or was there some limitation on it? And what's important here is the things that were sent to the government -- and while we were adversaries at the time, although we no longer became adversaries -- it was under the protections that were given to these materials. And I would -- there's one case I would analogize to, although it's not exactly, obviously, the same. Judge Marcus decided this case dealing with an American Airlines Crash neat Cali, Colombia and American Airlines was part of a program where its pilots could report FAA violations to them and to the FAA and it was considered confidential. Judge Marcus, while he was on this court, said that under Rule 501 -- even if you don't find any of these other privileges, under 501, where you can accept common law privileges, he said, I would find a limited common law privilege for a reporting function like this because it is so important to prevent airline disasters that I think that thee: things ought to be privileged to facilitate open and frank discussions between the pilots and the FAA, and what have you, because it's too important. And, certainly, this fits under 561-835-0220 EFTA01123009 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 22 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that same type of a rubric. If we have a problem with work product, I think tha: we can find a common law privilege of communication here because of the importance given to plea negotiations that would keep these out of the hands of the plaintiffs who intend to use it against our clients. So I think for a number of reasons this court should allow this intervention. I don't think now is the time to make the decision or the ultimate decision. But I would say this: If there's any kind of balancing here, the importance of protecting communications in plea bargaining today is very important. It's important to this court, to all the courts dealing with trying to resolve criminal cases. And all the cases say that's something that ought to be encouraged. The plaintiffs, who have already filed for summary judgment, who have said numerous times they have all the evidence they need, certainly have a very low, if any, need for anything from us to try to prove their case. So if there's any kind of a balancing test here, I think that it certainly goes in favor of protecting these materials. THE COURT: What do you think in these materials is protected under Rule 6? MR. BLACK: I think that all the materials that the plaintiff is requiring are -- oh, under 6(e)? THE COURT: Yes. 561-835-0220 EFTA01123010 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 23 of 113 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLACK: Under 6(e), what happens is that in number of the letters we discuss materials that we have been shown or know of, like names of witnesses, names of victims anc what have you. That goes back and forth. That is obviously grand jury material. Now, I can't say that there's a large amount of that. There is some discussion of those things in these letters, but I wouldn't say that it's more than 10 percent of them. The rest of them are just all the lawyet talking about the law and that type of thing. THE COURT: And what standing would you have to complain about grand jury material being released? MR. BLACK: I think that any officer of the court has standing to complain about the dissemination and violation -- of grand jury materials in violation of 6(e). I don't know that anybody needs a particular standing for that. THE COURT: I mean, if the government I don't know what the government's position on that is. But if the government isn't concerned, you think you can step in and sal., hey, you're not honoring your obligations under 6(e); I'm going to step in? MR. BLACK: Actually, there are times when we do that. For example, if a government agent should disseminate grand jury materials to the news media, there have been times when we have made complaints for violations of 6(e). And I'vt even -- I have filed letters with the Department of Justice to 561-835-0220 EFTA01123011 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 24 of 113 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Attorney General complaining about prosecutors, and I won't mention any names -- not in this case -- who have disseminated 6(e) material in violation of the rules. So I think that any party can make a complaint. THE COURT: I assume you've done that when it adversely affected one of your clients? MR. BLACK: Well, obviously, because -- THE COURT: Not because it -- just to protect the system? MR. BLACK: Your Honor is exactly right. This is a highly adversarial system and the only reason I'm objecting to it now is because it's beneficial to my client. I'm not doing it out of any eleemosynary intent THE COURT: Thank you, sir. MR. BLACK: Thank you, Your Honor. THE COURT: Mr. Edwards. MR. EDWARDS: Your Honor, we are asking that Your Honor deny the motion to intervene in this case. Mr. Black and these attorneys have not intervened on behalf e: Mr. Epstein, who may actually have an interest. They have no stake in the outcome of this case. There is no case that stands for -- THE COURT: Well, I mean, if they are right that this is work product material -- and maybe that is not something that I can decide now, but to the extent that it might arguably 561-835-0220 EFTA01123012 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 25 of 113 2!-) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be work product material, don't they have standing to protert their own work product? MR. EDWARDS: The cases that Mr. Black cited indicated or held that they needed a colorable argument for work product. You can't just come in and claim work product. And there is a plethora of cases that stand for the proposition, and has only been followed everywhere throughoL. the country, that voluntary disclosure of work product information to an adversary waives work product. The other rules of evidence that Mr. Black referred to, 410, don't apply to this case. That is a rule of admissibility rather than discoverability. They're not being entered against Mr. Epstein in this case. They are being entered, if at all, against the government. And just to correct the statement that he made than.. the government redacted the portions of the emails and correspondence from Mr. Epstein's attorneys to the government, that's not how this happened. In previous litigation, it wa ordered that all of it be turned over to us from Mr. Epstein, and they unilaterally made the decision to redact the information from their attorneys going to the government. And prior to the order that granted us permission to receive this correspondence, all of these arguments, the work product, th, 410 argument, all of them were before this court and all of them were overruled. We've been down this road before. We 561-835-0220 EFTA01123013 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 26 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would argue that it's the law of the case at this point, sinc these are similar issues, and there is no colorable argument o: work product at this point, and the intervention should be denied. THE COURT: All right. The cases that you're relying on and that I, at least coming in here, was thinking about that when you disclose something to an adversary it's no longer a work product, are you familiar with the cases in the context of plea negotiations where there's an exception or there's some different type of privilege that applies in plea negotiations between the government and a criminal defendant? MR. EDWARDS: We have read every case in his brie:, as well as any others on this subject, and can't find a sing! case out there that stands for that proposition. It just doesn't exist. So the cases that he's spoken about don't say that there is this automatic cloak of immunity between plea discussions. In fact, there are cases talking about plea discussions, and there isn't that. This doesn't come up that much because this is unique scenario where the best evidence of how the victims' rights were violated, when and by whom, is going to be found in the correspondence between the government and Mr. Epstein, as we have already seen from the half of the conversation that we've been able to see. THE COURT: Let me ask you this, and this kind of 561-835-0220 EFTA01123014 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 27 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gets to the merits of the argument, which I don't really war - to discuss right now, but do you really need the defense lawyers' correspondence or statements to the government attorneys in proving up whether or not the government violated the Victims' Rights Act, assuming I'm going to find that it's not -- it doesn't start from the point of indictment; the rights are triggered earlier than that? Don't you have enough information, without their comments in there, trial strategies that may have been revealed to the government -- it is really the government's actions or inactions that you're complaining about, not Epstein's lawyers' actions or inactions. MR. EDWARDS: We have a lot of information but som , of the information that we have are clearly responses by Assistant U.S. Attorneys, and the U.S. Attorney at the time, that is responding back to some letters or correspondence saying, I understand that you're urging us not to tell the victims certain information, but here's our problem with that, and there's a back and forth. And we can never gain the context of how it all came about and the rights were violated. We additionally believe that this will go to the heart of the relief or remedy that we are able to seek when we learn the whole puzzle as to how this whole thing went on behind the victims' backs, how deliberate it was and which parties initiated it or caused the rights that we've claimed were violated to be violated. 561-835-0220 EFTA01123015 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 28 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, again, this is getting more to th' merits. But it's the government's either actions or inaction that are at issue here and not what Mr. Epstein or any of his lawyers may have done either to induce or encourage or suggest that the -- again, hypothetically, that they violated the victims' rights under the Act. So aren't you really focusing on what the government did or didn't do regardless of what Mr. Epstein may have done, or his lawyers? Is that really relevant? MR. EDWARDS: To prove violation, yes. But the scope of the remedy or relief that we are able to seek, if it is ultimately to invalidate this contract between the government and Mr. Epstein, and it is ultimately going to be detrimental at all to Mr. Epstein, then his deliberateness in the insistence that the rights of these victims were violated is going to be very important when we brief the issue on remedy and relief. THE COURT: All right. Thank you. I want to see 1: the government has anything to say before I hear back from Mr. Black. Mr. Lee, did you have anything to add on this? l'a be curious to know the government's position regarding Mr. Black's assertion that any plea negotiations, statements made during the course of plea negotiations, are somehow privileged and protected and therefore can't be disclosed or 561-835-0220 EFTA01123016 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 29 of 113 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disseminated. MR. LEE: Your Honor, on that particular issue I am going to defer to my colleague, Ms. Villafana, but I would ilke to note -- to invite the Court's attention, in response to their motion to use correspondence and to unseal, we did raise the 6(e) issue and we also raised a due process issue about requiring the government to make a factual assertion that somebody was guilty of a certain crime without even being charged with a crime. That was raised independently of what Mr. Black was asserting. So we did raise that. THE COURT: Okay. I'm not sure how that -- explain to me how those tie together. Your statement that -- the government asserting someone may have been guilty of a crime might be a due process violation, how does that relate to statements made by the defense to you in the course of plea negotiations? MR. LEE: That's actually a separate issue that was subsumed within the motion, Your Honor. The motion that the% filed was a motion to unseal correspondence and to file -- unseal pleadings and use correspondence in order to prove violations of the CVRA. Included in that were a number ot factual assertions that the petitioners claimed that we are obligated to agree or disagree with in terms of presenting that issue for the Court to resolve. And some of those factual assertions that they suggested were true involved essentially 561-835-0220 EFTA01123017 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 30 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 assertions that Mr. Epstein was guilty of various crimes, crimes that he was not charged with. And so we noted that would be a violation of due process principles to name somebody in such a fashion or to agree to an assertion, which basically becomes our assertion. And secondly, we also mentioned the 6(e) issue in so far as some of these emails that were generated that touched upon matters occurring before the grand jury. That was in tha: motion regarding -- motion to unseal and use correspondence. If I could defer to my colleague to address the issue about the philosophy about the plea negotiations? THE COURT: All right. Thank you. MR. LEE: Thank you, Your Honor. MS. VILLAFANA: Thank you, Your Honor. I'm not certain that this was raised in the pleadings so this is not something that I was necessarily prepared to address. THE COURT: Well, if you're not prepared to address it, then I don't want to put you on the spot and bind you to anything you might say here, if you want some time to consider it. I am really going to have to look into this issue becaus I took it as a new -- a new angle. MS. VILLAFANA: I think I would prefer to look into it a little bit and respond in writing, if that's all right with Your Honor. THE COURT: All right. 561-835-0220 EFTA01123018 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 31 of 113 '1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 else? MS. VILLAFANA: Thank you. THE COURT: Mr. Black, did you want to say anything MR. BLACK: Yes, Your Honor. At the beginning of their argument, the plaintiff tells you they do not want to use the statements in any way against Mr. Epstein. At the end of the argument, they say they want to use the statements as remedy to vacate the non-prosecution agreement and try to hay him sentenced to a longer sentence, I assume. Mr. Edwards har. said that in previous times before this court. I think that' more than sufficient to meet the standard that they intend to use these 410 materials against Mr. Epstein to his detriment. THE COURT: All right. MR. BLACK: Thank you, sir. THE COURT: That's a Mr. Epstein argument as opposed to a Roy Black attorney argument? MR. BLACK: It -- hopefully, they can't use those statements against me but they certainly want to use it against the client. And when we wrote the letters, we are acting for the client. And here is the problem, Your Honor, just to tell you practically what it's like out in the field practicing criminal law: If we believe that our statements in any way during this plea bargaining process would end up coming back to damage out clients in some way, why would we do this? Why would we go 561-835-0220 EFTA01123019 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 32 of 113 2"7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through this whole process of sending these briefs and letter:: and interpretations of the law and discussions of various offenses and how things could be arranged and the discretion between the federal and the state government and all those kind of things, even discussing proposed charges and all of that, why would we ever engage in that if we ever thought these things could come back to bite our clients? All we're going to do here is going to, for no good reason, put a damper on the ability of lawyers to negotiate and resolve criminal cases and I believe that is against the policy of these courts, and our system of justice. THE COURT: All right. Thank you, Mr. Black. I'm going to reserve ruling. I guess I'm going to ask the government, or both sides to -- Mr. Black, did you want to -- an opportunity to further develop this privilege argument on plea negotiations in writing? MR. BLACK: Yes, sir. I would also ask for whatever time you give the government. I'll make another submission. THE COURT: Why don't you make an initial submission and then let the other side, both -- the other parties respond to that. MR. BLACK: That's fair enough, Your Honor. THE COURT: How much time do you want to do that? MR. BLACK: Two weeks? THE COURT: That's fine. 561-835-0220 EFTA01123020 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 33 of 113 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLACK: Thank you. THE COURT: Thank you, Mr. Black. How much time did you want, Ms. Villafana, or Mr. Edwards, to respond to whatever Mr. Black submits? MR. EDWARDS: Two weeks as well, Your Honor. MS. VILLAFANA: Two weeks is fine. MR. LEE: Two weeks would be fine, Your Honor. MR. EDWARDS: Your Honor, we would ask that we able to reply after the government? THE COURT: Okay. So you want two weeks after Mr. Black and then after the government responds? MR. EDWARDS: One week would be fine. THE COURT: After? MR. EDWARDS: The government responds. THE COURT: Okay. Mr. Black, two weeks for the government and a week for you? MR. EDWARDS: Sounds great. THE COURT: Okay. Mr. Black, are you going to want to file a reply or are you going to wait and see? MR. BLACK: I'll see. Why don't you give us three days for a reply. THE COURT: Okay. How about a week, all right? MR. BLACK: Thank you. THE COURT: All right. Let's talk about some of these other procedural motions that don't delve into the real 561-835-0220 EFTA01123021 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 34 of 113 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 merits. Let's talk about the plaintiffs' motion to have their facts accepted because of the government's failure to contes' any of the facts. Who's going to argue that? Mr. Edwards? MR. EDWARDS: Yes, Your Honor. THE COURT: All right. Now, let me kind of just start off and try and focus the inquiry here. MR. EDWARDS: Okay. THE COURT: I read your motion. The motion you filed, the ultimate motion on whether or not there's been a violation of your clients' rights, it's not labeled a summary judgment motion. It's not sworn to. It doesn't have any affidavits. It doesn't -- no depositions, request for admissions, nothing that you would ordinarily rely upon in the context of a case dispositive motion. As far as I know, there's been no attempt to conduct discovery; no request for admissions; no document production; nothing in the ordinary in an ordinary civil case that would be done in order to get the other side to admit to certain facts. It seems like you're saying, well, we've talked to them back and forth. We've asked them to admit things. They haven't admitted anything. They refused or we can't come to some agreement, so admit everything we say in our motion and use it against them. How does that work when there seems to me, whether you consider this an aspect of an offshoot of a criminal case or a separate civil case, that there is a means 561-835-0220 EFTA01123022 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 35 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or a method by which you could have, if you wanted to, asked for the opportunity to conduct discovery or send out discovery requests and get them to either admit or deny certain things? Can you just negotiate, they say, I'm sorry, we're not admitting anything, and come into court and say, we tried; they won't admit anything, so now you've got to everything is deemed admitted against them? I mean, how does that work? MR. EDWARDS: Your Honor, let me confer with co-counsel for one second because I believe there was some attempt to do some discovery. We made an initial disclosure under Rule 26, and the response back that we got from the government was that this is not a civil case because the Crime Victims' Rights Act is nr'' 1 civil case. And we said, okay, well, then we get certain information from you if it's a criminal case. And they said, well, if it's a criminal case, it's United States versus somebody else. So it's not a criminal case. So we are kind of stuck in this middle ground and we need -- similar to a summary judgment motion, we need an ultimate finding on a legal issue, which is a finding of violation of the Act. So we've been kina of stuck in limbo not knowing what's really available to us in terms of how we go about getting discovery. So we did negotiate with them for a long time over facts, and they finally said, all the facts are irrelevant. And if they're irrelevant, then what's the harm in accepting 561-835-0220 EFTA01123023 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 36 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them as true? And if they want to insert the one fact that they believe is relevant, Jeffrey Epstein was not indicted, then we agree. THE COURT: Well, I presume their position is, the rights under the Act don't kick in or aren't triggered until there's an indictment, and if I accept that proposition then it doesn't make any difference what the facts are. But if I don't accept that proposition, then I have a feeling they're going to say that all the facts do make a difference. I don't want to speak for them but I presume that's going to be their approach. MR. EDWARDS: Well, there -- THE COURT: If I rule against them on the indictment is the triggering event, they're going to want to contest. 1 .7,- of these facts. MR. EDWARDS: Well, there are certain undeniable facts that are in the record that they will not contest, which based on those facts alone the -- the finding of a violation, we could reach that decision and it would be ripe for tha- finding. It's not ripe until we have all of the circumstancc and all of the facts. But just given those -- the information that we have in the record, such as when the non-prosecution agreement was signed, the confidentiality provision, when the letters were sent to the clients, when the plea negotiation went down, the fact that it was a year after the non-prosecution agreement that disposed of the clients' right 561-835-0220 EFTA01123024 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 37 of 113 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before the clients knew about the non-prosecution agreement and were receiving letters telling them to be patient, this is a long process, after their rights were already gone, is enough. And those are not things that are being contested. So we could at least have had a meaningful discussion as to which of these other facts, in addition to the fact tha - Mr. Epstein was not indicted, that they would agree upon. And if they're saying that it's irrelevant, it goes back to my original argument, what's the harm then? We can get all the way to making the decisions if we have a bunch of -- and Your Honor can make the legal determination what weight to give various facts, whether they're relevant or not relevant. THE COURT: But that's assuming they're all true for purposes of the proceeding. I guess my question to you is: If you are uncertain or the government is uncertain as to what kind of a case this is, is it an offshoot of a -- or ancillary to a criminal case or is it a separate and independent civil case or some hybrid, and you wanted to get them to admit certain facts, you could have filed a motion and asked for some assistance from me and said, hey, this is what we're trying to accomplish. They won't cooperate. Can we employ some discovery mechanisms in order to limit or narrow the disputed issues? I think whether it's criminal or civil, I probably would have discretion to say, engage in some discovery if 561-835-0220 EFTA01123025 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 38 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's going to simplify things or bring this to a head. But you just filed a motion and say, they're stuck with everything we say in our motion. MR. EDWARDS: Well, we believe that this did fall under local Rule 7.5, and assuming that it does, then any any facts that are uncontroverted would be deemed admitted and accepted as true. THE COURT: So you're saying this is a summary judgment motion? MR. EDWARDS: Yes. THE COURT: You didn't call it a summary judgment motion. MR. EDWARDS: I understand. THE COURT: You didn't file -- you didn't file a statement of undisputed facts. MR. EDWARDS: We did file a statement of undisputed facts. We filed 53 undisputed facts. THE COURT: You did? MR. EDWARDS: We filed -- within our motion for finding violations of the Crime Victims' Rights Act, we filed 53 undisputed facts and attached, as exhibits, A through K. THE COURT: Okay. I see. Let me go to that section. Okay. MR. EDWARDS: Various pieces of the record. And we have agreed with the government that we would agree to that 561-835-0220 EFTA01123026 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 39 of 113 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 additional fact that Mr. Epstein was not indicted, and then w- would start with various correspondence indicating that there was a 53-page indictment prepared against him and move on all the way through the plea agreement so that we could reach thr determination on the violation. THE COURT: All right. Well, I don't think I can just accept your version of the facts, some of which are not facts but are opinions and conclusions, just because the government didn't choose to sit down and work out an agreement with you. I think there are other ways of getting to the point where you want to get. I think a discovery process is probably the -- and you didn't label it a motion for summary judgment. It's kind of -- so I don't think they were on notice that you were intending to consider this a summary judgment motion and therefore had to respond under the local civil rule and file their statement of disputed material facts. MR. EDWARDS: Okay. I could be incorrect but I believe in their response that they referred to it as a summary judgment motion. THE COURT: All right. MR. EDWARDS: But I could be wrong on that. Okay. THE COURT: I'm going to deny that motion. Okay. I think there's another way of trying to get these facts narrowed and we can talk about how to do that after. MR. EDWARDS: Okay. In terms of the motion for 561-835-0220 EFTA01123027 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 40 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 finding a violation, is at least the information that is already in the record and is stipulated to, meaning the exhibits that both parties agree were exhibits, is that something that we are going to be permitted to rely upon fc-' that motion? THE COURT: Well, let's wait until we get to that motion and then we'll talk about it. MR. EDWARDS: Thank you, Your Honor. THE COURT: Okay. How about the motion for the order directing the United States Attorney's Office not to withhold relevant evidence, who wants to talk about that? Mr. Cassell. MR. CASSELL: Good afternoon, Your Honor. As the Court is aware, we've been trying to sort through some of these. issues. The Court, I guess, is wondering about some of these things, and we've been wondering as well. The one thing we think is very clear is that the United States cannot sit on information that's highly relevant to the plaintiffs' claims. We've repeatedly asked the United States for information that would support our claim both that there were substantive violations of the Crime Victims' Rights Act and that the appropriate remedy for this violation would be setting aside the non-prosecution agreement. We've offered to provide them very narrow and specific documents that we're looking for. And in response, the United States Attorney's Office has taken the position that it can and will withhold this relevant and 561-835-0220 EFTA01123028 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 41 of 113 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 useful information from the victims. So we think the legal issue is starkly present: Can the United States withhold information from the victims that will help them establish a violation of congressionally-mandated crime victims' rights? And we submit that the answer to that question must be, no, for three reasons. THE COURT: Why isn't this, again, sort of a discovery issue? We go through a discovery process and you submit specific requests for information. They either produc it or object to it, and if there's an objection and they say, we're not going to produce it, we have a hearing on whether or not it should be turned over. MR. CASSELL: So that is our third argument. Let m jump right to that. The third argument we have made in our brief is that this is a civil case and so we should proceed under the ordinary civil rules. As Your Honor is well aware, the first step in the civil rules is to make initial disclosures. So we made all of our initial disclosures under Rule 26 and we asked the government then to make theirs. They refused. They said, sorry, we're not going to make any disclosures. So we were stopped at first base. We can't, of course, move to request for depositions, request for admissions because we haven't even had the initial disclosures that Rule 26 envisions. So basically -- THE COURT: But you could have asked me to interven 561-835-0220 EFTA01123029 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 42 of 113 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and make some preliminary determinations as to who's right or wrong about that process. MR. CASSELL: And that's what we tried to do with this motion. We said there should be a motion for them, and we styled it, not to withhold evidence. And, of course, our third argument was that the civil rules apply and they should -- lc- me make clear, we're not trying to suggest that we're afraid of the civil rules. To the contrary, if the Court were to enter an order in a few minutes saying the civil rules apply, simply proceed under the civil rules, we would be ecstatic about tha- That would let us get to the bottom of this case and we would be happy to move forward on an expedited basis to produce some requests for admissions, maybe take a few depositions and do the ordinary thing that civil rules -- the civil rules require. So we're certainly not opposed to that in any way. In fact, we proposed that to the government; again, only to ID blocked at square one, to even go down that path. So we're happy to go down that path. We hope that the Court would go that way. But there's one -- there are a couple of other things that I think above and beyond the ordinary civil rules that factor in here that are highly relevant. This is not an ordinary civil case where the victims and the government are supposed to be adversaries, where both sides duke it out. To the contrary, Congress has passed a specific provision that 561-835-0220 EFTA01123030 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 43 of 113 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mandates that the government must use its best efforts to afford victims their rights. That best efforts clause then suggests that, well, the government isn't entitled to try to conceal things and withhold them. They have to undertake their own affirmative search for information and provide it to us. And here again, we think this is a very simple task. They've never argued that this is burdensome. They've never argued, we don't know what you're looking for. To the contrary, they have said, we have information and we're simply not going to produce it to you. That is simply not consisten - with the Crime Victims' Rights Act, which obligates them to use their best efforts to help us. You shouldn't view this as an adversarial position. And this is, again, where we have come to the Court to request your assistance. We would like an order that says to the government, come on, comply with the Crime Victims' Rights Act; use your best efforts to assist the victims to receive the information that they're looking for. And the last argument we make is, remember what the government has already done for the sex offender in this case. Our understanding is they have provided hundreds of pages of information to a child molester, but we're simply asking for a few documents that will now help us make our claim that there have been violations of the Crime Victims' Rights Act and that the appropriate remedy for that is setting aside the non-prosecution agreement. We're entitled to that information 561-835-0220 EFTA01123031 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 44 of 113 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no less than the defense was entitled to that information as i matter of fairness. Now, they say fairness, due process, that's under the Constitution. We are not raising a constitutional claim. We are raising a statutory claim. The Crime Victims' Rights Act says that victims of crime must be treated with fairness. And, again, we think this is a very simple and very stark question that the Court can ask and should ask the government: How is it treating the victims with fairness to allow you, the government, to withhold information that will permit them to show, first, that there's been a violation of the Crime Victims' Rights Act and, secondly, that the appropriate remual, is the remedy they're seeking to set aside the non-pros ,.mar. agreement? And, in fact, the cases that they cite even say tha - the victims should go and seek the assistance of the government when they run into situations where their rights are being violated. The very first case they cite, U.S. v. Rubin, says that the victims should go about conferring with the government if they're trying to obtain information since, after all, it's the government who is supposed to be the ally of the victims in this process, not the adversaries. And so for all of those reasons, the government's best efforts and obligations, our right to be treated with fairness, and the fact that this is a civil case and the 561-835-0220 EFTA01123032 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 45 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ordinary civil rules apply, for all of those reasons, Your Honor, we think they are not entitled to withhold information from us that they well know is very helpful to us, both on the liability phase of this case and the ultimate remedy phase of this case. THE COURT: All right. Thank you. Mr. Lee. MR. LEE: Thank you, Your Honor. May it please the Court. Let me address the first issue about the initial disclosures that the petitioners claim. Those initial disclosures were given to the government in March of 2011, probably about two weeks before they filed their series of four motions. This lawsuit commenced in July of 2008. So while these are disclosures, they certainly were initial disclosures which are typically done within a few weeks of the commencement of the lawsuit. Your Honor, this is a case that is really kind of a hybrid. It's not a criminal case in the sense that nobody is being charged with a crime. Nobody is in jeopardy of going to jail. But it's not completely a civil case, either. I believe that the CVRA intended that most of these actions where individual victims seek to have their rights enforced, they ar- usually done as an ancillary proceeding to an extant criminal proceeding. In such proceedings, an individual victim would not 561-835-0220 EFTA01123033 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 46 of 113 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 necessarily have discovery rights Federal Rules of Civil Procedure. civil action comes with it rights that one would have under the Not only that, not every to conduct full discovery. If somebody files an agency APA action, Administrative Procedures Act, seeking to get judicial review of an agency action, those are record reviews and you're not entitled to discovery. If somebody files a habeas, in order to get discovery in a habeas proceeding there must be a court order. And we believe that just because this is a civil action in the sense that it's not a criminal action, that they're not entitled to discovery. It can only be done pursuant to an order of this court. THE COURT: All right. Well, do you believe I don'• have the discretion or do you believe or agree that regardless; of whether it's an ancillary action to a criminal proceeding or it's a separate and independent civil proceeding, or it's som hybrid, wouldn't I have discretion to order discovery if I believed it was appropriate? MR. LEE: Yes, you would, Your Honor. THE COURT: Okay. MR. LEE: Even in a habeas, the court has broad discretion. Your Honor, I would note for this, we believe that the first issue the Court must resolve is whether or not any legal rights under 3771(a)(1) through (8) accrued prior to the 561-835-0220 EFTA01123034 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 47 of 113 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 filing of a charge in the Southern District of Florida agains- Mr. Epstein. That can be resolved. That's a statutory interpretation question. It is a legal question. The only predicate fact that is necessary for the Court to engage in this analysis is to have -- to know that there was no charge filed against Mr. Epstein in the Southern District of Florida. There's no dispute as to that. I mean, for that very reason, we believe that the discovery that the petitioners claim that they need is unnecessary. THE COURT: Well, I agree if I agree with you, then that's the end of the case. But if I don't agree with you, I have to have some way of dealing with the issue of whether or not the plaintiffs' rights were violated and how we're going to come to a resolution of that. So I'm now in the posture of -- on the assumption, hypothetically, that I disagree with your legal position and feel that there is an issue of fact as to whether or not the rights were violated and how are we going to resolve that factual issue. MR. LEE: Your Honor, the Court would at that point have the discretion, if there was good cause shown and the Court believed it necessary to the resolution of the dispute, to allow discovery. THE COURT: All right. And I guess this is over and above just discovery obligations. The plaintiffs are claiming that you have some statutory obligation over and above a 561-835-0220 EFTA01123035 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 48 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discovery obligation to produce information that would be what's in your possession, out of treating them fair under the statute. What's your position on that? MR. LEE: We respectfully disagree. They cite Brady v. Maryland, which, of course, pertains to a criminal case. Brady v. Maryland is based on the due process clause, because if the government is seeking to deprive somebody of their life, liberty or property, they have to accord them the process tha: is due. The process that is due to a criminal defendant is information that is exculpatory that is in the hands of the government. This is not a criminal case. In order to invoke the due process clause, they have to establish that there's a protected life, liberty or propert% interest, outside of Brady versus Maryland. So in this case, they would have to demonstrate that some liberty or property interest is in jeopardy and the government is seeking to take it away from them and they are accorded a certain amount of process. In their view, that process is the right to hay, access to this information. There is no protected liberty or property interest in the CVRA. And in so far as the right that they invoke under 3771(a)(8) about the right to be treated with fairness, there's no authority that fairness includes a discovery right to compel the government to produce information that might be of assistance to a victim in prosecuting his or her claim that 561-835-0220 EFTA01123036 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 49 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their rights were violated. Thank you, Your Honor. THE COURT: Thank you. MR. CASSELL: Thank you, Your Honor. Mr. Lee first talks about the timing of this case and the time line. Let m just touch on two things that I think are highly relevant. Back in July of 2008, when this case first began, you recall that Mr. Edwards and Mr. Lee said, Your Honor, we think we can work out a set of facts so that you can then decide the case. That was the agreement of Mr. Lee and Mr. Edwards. And so I assisted Mr. Edwards and worked with Mr. Lee to begin working on the facts, and after a few weeks we heard back from the government, we've changed our mind; we no longer want to work with you on the facts. So at that point, as you know, we began working on the civil cases, got some additional information, prepared. And I have to confess maybe we didn't style it properly. Maybe we should have put "summary judgment" on it or something else. We weren't quite sure. But we put together 53 facts and we sent them to the government before we ever presented them to you and said, here are the facts. We would like to work with you because we don't want to get in a squabble in front of the judge when we can work together. And Mr. Lee sent me an email saying, we will work with you and agree to any of the facts that we think are true. So we thought, great, we will move forward with tha: 561-835-0220 EFTA01123037 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 50 of 113 5.0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 process. And then in, I believe it was February of this year, we then got another about face from the government: No, we've changed our mind; we're not going to work with you to stipulate facts. And at that point, we were then forced to file this motion. Now, Mr. Lee keeps calling it a discovery motion. I don't think that's the right term. Discovery motion means we would be fishing around trying to find something that's useful. We see the principle at stake here as being something quite different. The government admits -- and you notice Mr. Lee didn't deny this -- that they have information that they know will be helpful to us. We're asking you to order them to produce it to us. That's not discovery, let's fish around an see what we can find. THE COURT: What does that mean? I guess, are you trying -- it seems like it's a Brady concept. MR. CASSELL: Exactly. THE COURT: So they're supposed to, in good faith, I presume, look through their files and decide, you know, this looks like something that would be helpful to the plaintiffs to prove that we violated their rights, so here it is. MR. CASSELL: Exactly. And let me just explain why -- and notice that the government has never raised the point that this is burdensome; we can't figure it out; oh, gosh, there are so many files we don't know what to look at. 561-835-0220 EFTA01123038 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 51 of 113 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And let me explain to you why I think they are not making tha- representation. We went to the U.S. Attorney for the Southern District of Florida in December and raised a number of questions about this case. At that point, the U.S. Attorney for the Southern District of Florida referred the matter to OPR, the Office of Professional Responsibility in Washington, DC, for an investigation. It's our understanding that for about five months there was an inquiry or an investigation into the nature of this case. And then in May, we received a letter that said, well, all these issues are being litigated in front of thr court so we're not going to proceed any further with the investigation, or the inquiry, whatever you want to call it. We think there is a collection of materials, sealed and wrapped in a ribbon, that they could simply hand to us right now that would have basically 90 percent of all the relevant information in the case. We further believe that they know darn well that that information is very, very helpful to, us in proving that there were deliberate violations of the Crime Victims' Rights Act; second, that Mr. Epstein was involved in orchestrating those violations; and, third, that that would show that the appropriate remedy in this case is to invalidate the non-prosecution agreement because it is an illegal agreement. And yet they're refusing to provide that to us. 561-835-0220 EFTA01123039 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 52 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What is the basis that they say you shouldn't order that information provided to us? They say, well, you just need one fact to decide this case. As the Court, I think, is aware and we may be getting into shortly, when you look at the case laws you can't decide an issue like this based on just one fact. You have to have some context. Let me give you an example of one additional fact that we think is highly relevant. The government prepared, ar. we understand it, a 53-page indictment against Epstein and presented that to the defense attorneys. Well, we think that that is highly relevant information showing that they mistreated the victims in this case. Why didn't they share that with the victims? Why didn't they just share the discussions about that with the victims? They were obligated to do so. We think that's part of the context that the Court will need. Now, you notice what Mr. -- what Mr. Lee did as well. He talks about the Brady principle. Let's think about what the Brady principle is and why it's so important in this case. The Brady principle is basically that the government wins when justice is done. And the government is asking you to take the that even though it has information that's highly relevant to the crime victims, there's no one that can force, them to turn it over to us. That is not justice. That 1_, not -- 561-835-0220 EFTA01123040 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 53 of 113 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I don't think -- I think Mr. Lee acknowledged that if I ordered discovery that they would be ordered to comply with -- MR. CASSELL: Right. THE COURT: -- discovery requests. MR. CASSELL: Well, maybe then -- maybe this is, in essence, an unopposed motion. I mean, he said you have discretion to do it. And the only argument I heard him make against you exercising your discretion to do this is, Judge, you only need one fact. So I assume that if you disagree with Mr. Lee on that, that at that point I haven't heard any arguments from the government, either in the written pleadings they have filed or here this afternoon, that would suggest you shouldn't exercise your discretion to, first of all, order them to produce the information that we think that they have that is highly relevant to us and, second, allow us to do some discovery, take some depositions, get some requests for admissions, get some document production, which we would ordinarily get in a civil case. The other thing Mr. Lee said is, they're not being deprived of any property here. The crime victims in this case, Jane Doe No. 1 and Jane Doe No. 2 have made a very powerful case that they are being deprived of congressionally-mandated rights: The right to confer with prosecutors; the right to treated with fairness; and the right to accurate notice of 561-835-0220 EFTA01123041 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 54 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 court proceedings. That's the deprivation that's at issu, And as a result, it is only fair, as it would be if this were under a due process situation, that they receive relevant information that the government has. And so for all of those reasons, we would ask you to order the government to produce information and allow us to do some discovery as well. THE COURT: All right. Thank you. I think this is somewhat related to what we've been talking about, and this ir. the plaintiffs' motion to use correspondence to prove violations under the Crime Victims' Rights Act and to have unsealed -- have the unredacted pleadings unsealed. Have already talked about this or is there some -- MR. CASSELL: I think this one is unopposed. Maybe you can just grant at least the first part of it, to use correspondence. THE COURT: Well, exactly what are we talking about, I guess? I need to have a better understanding. What has been redacted and -- well, I guess, what is -- it is unredacted, material that's not redacted. MR. CASSELL: We have material that was provided to us that was, for example, Mr. Lee or some of the other attorneys in the U.S. Attorney's Office talking about the plc discussion. We have that information right now. THE COURT: And that's the government's side of the discussion? 561-835-0220 EFTA01123042 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 55 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CASSELL: That's the government's side. THE COURT: Okay. MR. CASSELL: And we simply want to use that. The government does not oppose that motion. We were obligated to provide notice to Mr. Epstein, which we did. There was the magistrate judge process. All of the work product and other objections that you've been hearing about today have been overruled. And then the magistrate judge said, simply go to the appropriate authority, which I assume is Your Honor, and have the -- you know, have a decision made about whether that information can be used. THE COURT: Now, is this information -- is any of this information, the unredacted correspondence -- I guess I need to speak to Mr. Black about this. Is any of this information information that you're concerned about, Mr. Black? Or is this information that is not anything that you're concerned about? MR. BLACK: It is none of our information. It's only the government's side of the communication, Your Honor. That's what I understand. THE COURT: So you don't have any concern about whether I allow the plaintiffs to use it or whether it's unsealed? MR. BLACK: We have no position on that because tha: does not implicate our rights. 561-835-0220 EFTA01123043 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 56 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. MR. CASSELL: So I think this motion may be unopposed, although the government, I think, is opposing unsealing of the information because they claim some of Rule 6(e) grand jury material. I have the same question I think Your Honor does. For the life of me, I can't see how any of the emails we have could be Rule 6(e) material because they've been given to us. They've been given to Mr. Black. And, if so, that can't be confidential grand jury material because it shouldn't have been shared with anyone else. None of the materials talk about what's going on inside the grand jury room, which is what Rule 6(e) covers. So we think any kind of argument that Rule 6(e) is implicated here is just frankly frivolous. THE COURT: All right. Mr. Lee, or Ms. Villafana, do you want to be heard on this? MR. LEE: Yes, Your Honor. Thank you. Very briefly, we raised two arguments in so far as unredacting these materials. 6(e) -- THE COURT: I don't think -- I don't think amjcL.uy -3 asking that they be unredacted. I think they're just -- they want to use it in the form that they have it right now. MR. LEE: Okay. Let me address the 6(e) issue. As we stated in our pleadings, Your Honor, or our opposition to 561-835-0220 EFTA01123044 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 57 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the motion, 6(e) is not a privilege like the attorney/client privilege or deliberative process that can be waived once the contents of the information that is protected is made known. Somebody can be served with a grand jury subpoena and the press may get ahold of it and say, ah, you're investigating so and so; government, you need to confirm with us whether or nor you're investigating so and so. Even though there is an existence of a grand jury subpoena which would seem to indicate that, that doesn't breach, if you will, Rule 6(e) obligations. The government ir. still obligated to neither confirm nor deny. So just because somebody has this information doesn't mean that the 6(e) protections are gone and vitiated. So that's why we belieYr that this information should not be made public. THE COURT: Well, are you talking about all of it or just a portion of it? MR. LEE: There are certain portions that we redacted. We filed an actual document putting forth what we believe should be redacted; what the petitioners agreed was fine and where the areas of disagreement were. It was color coded. THE COURT: Right. So some of the material -- the copies I have, I lose the color in them. I just have black. Everything is black. So there's some material that you believe needs to be redacted? 5 61-8 35-022 0 EFTA01123045 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 58 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEE: Correct. THE COURT: And others that the plaintiffs say should be unsealed and unredacted? MR. LEE: That's correct, Your Honor. THE COURT: Okay. All right. MR. LEE: Thank you, Your Honor. THE COURT: You're welcome. All right. Let's talk about, I guess, the main issue of this case here. When do the victims' rights start to accrue? Who's going to present that argument? Mr. Cassell. MR. CASSELL: Thank you, Your Honor. So I'll address what I think you've called the main event. The question is: When does the Crime Victims' Rights Act begin to apply? The government's position, as I understand it, is that unless it makes the decision to publicly file an indictment, crime victims have no rights in the criminal justice process. That' a very important issue for crime victims' rights in this country, and I think it's a very important question for the way in which this congressional statute is going to be put into effect. The Crime Victims' Rights Act makes it quite clear that it wasn't designed to be so narrowly circumscribed. In fact, the rights apply throughout the criminal justice process. You need go no further than the plain language of the CVRA, which says that there is an obligation of, quote, officers and 561-835-0220 EFTA01123046 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 59 of 113 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employees of the Department of Justice, and other departments and agencies of the United States, engaged in -- and here is the important part -- the detection, investigation or prosecution of crime. And those entities are obligated to afford crime victims their rights. If you take the position of the government and accept it, then that language in the CVRA simply because superfluous. It becomes meaningless. It would never apply. Agencies that are involved in the detection and investigation of crime, lik the FBI and other agencies, would never have any obligations under the Crime Victims' Rights Act. We have cited that language, as you know. Back in July of 2008, every single pleading we have filed in this cat has led with that particular argument. And the government, despite having, I think, by this point, four separate pleadings has never discussed that language with you at all, and we think the answer -- the reason why they are not discussing that language is obvious. They have no answer for that. If they were to look at that language -- if their position were to be accepted, that language would be written out of the statute. But that, of course, is not the only language we rely upon in the CVRA. The CVRA goes on to say that what should victims do if they are asserting rights and, quote, no charges are -- or no prosecution is underway, which is our situation here, no prosecution, at least federal 561-835-0220 EFTA01123047 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 60 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prosecution, is underway? In that situation, a victim should assert her right in the district court in which the defendant is being prosecuted, or if no prosecution is underway in the district court, in the district in which the crime occurred. That's here in the Southern District of Florida, which is why we proceeded here. Now, the government says this is a venue provision. True, enough. But venue over what? The theory that we'v, given you is that that provides venue over cases that are in pre-indictment situation. The government merely does not hay a coherent theory on how that venue provision applies. If you read through the footnotes in their brief, you discover that they say, well, if somebody is arrested, then at that point The Crime Victims' Rights Act is triggered. Of course, that footnote is inconsistent with the entire body of their brief, which says that the triggering event for the Crime Victims' Rights Act is the filing of an indictment. So I'll be interested to hear from Mr. Lee, when he makes his presentation, exactly what point in the process do rights apply? Is it the indictment? Is it the arrest? Or is it some earlier point, as we suggest? Now, it's interesting, too, when you look at what Mr. Lee said back on July 11th, 2008, because Your Honor asked the same question that I think you're asking me and the 561-835-0220 EFTA01123048 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 61 of 113 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 government right now, are there rights that apply under the Crime Victims' Rights Act before the filing an indictment? And the answer that Mr. Lee gave on July 11, 2008, was, yes, there are rights that apply before the indictment. Quoting here: Now, there are certain of eight rights accorded in 3771(a) that could come up before any charges being filed. And he goes on to give the example of the right of a victim to be reasonably protected, and he conceded that those rights would apply before indictment. I think the government, once again, is reversing a position that they took earlier in this litigation because they now find it convenient to do so. The government has also cited remarks from Senator Kyl, saying if you look at Senator Kyl's legislative history you'll see that the Senate didn't want the rights to apply before the indictment was filed. As you know, just a couple of weeks ago we provided supplemental authority to this court, which was a letter from Senator Kyl to Attorney General Eric Holder sent on June the -- THE COURT: Well, I'm not sure I should rely on his letter. I mean, I think you can rely on the full context of the legislative history and the full -- the complete statement that Senator Kyl made when this was being discussed, but I'm not sure a letter sent years after the fact, which is one person's statement of what he thinks now, I don't think 561-835-0220 EFTA01123049 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 62 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's -- I wouldn't want to rely on that. MR. CASSELL: In the -- if I could just take a shor. moment then. Let me explain to you why you should rely on it. The government has said Senator Kyl would want you to rule in their favor in this case because he didn't want the Crime Victims' Rights Act to apply pre-indictment, and now we have letter from Senator Kyl, just six weeks ago, saying, That is quoting my remarks out of context. We could not have been clearer when we drafted the Act, and he cited the same statutory provisions that I just mentioned to you. And he said, obviously we intended for the Act to apply pre-indictment. So at the very least, I think you have to disregard the government's position that Senator Kyl has certain remarks that they think ought to lead you to conclude that there's no pre-indictment rights under the CVRA. The other point that we would press, of course, is that case law, in our view, all concludes that the Crime Victims' Rights Act applies before indictment. Of course, the lead Court of Appeals case on this is the Fifth Circuit case, In re: Dean. The government -- you've had a chance to read the government's briefing on that. Frankly, I don't think anything they say is persuasive. In re: Dean very specifically holds -- and I'm quoting here -- quote, logically the rights that apply before 561-835-0220 EFTA01123050 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 63 of 113 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any prosecution is underway included the CVRA's establishment of the victim's reasonable right to confer with the attorney for the government. That's the Fifth Circuit's holding. Tha: is persuasive authority, we would suggest, and the government has no answer for that. There are a number of district court cases that reach exactly the same conclusion that the Crime Victims' Rights A:. applies before any indictment is filed. And so for all of those reasons, Your Honor, we would ask you to conclude that the Crime Victims' Rights Act applies before an indictment. THE COURT: I don't know if you're prepared to answer this question or whether you're going to say, well, the facts of this case don't require me to deal with it. But when is the earliest point when these rights trigger? MR. CASSELL: And, you know, Your Honor, we believe that is a very difficult issue that courts will be wrestling with, how far back in the process does it go? And I think you anticipated part of our response, which is, look, there are going to be some line-drawing issues down the road. There ar- certainly going to be some close-call cases, but we are not anywhere near to a close-call case. We are asking you for a very narrow holding in this case, and we have set forth in our brief five factors that we would ask you to rely upon in this case that will limit your holding to these particular facts and leave for another day 561-835-0220 EFTA01123051 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 64 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some of the more theoretical questions. Here are five factors that we think are present in this case that make it clear the Crime Victims' Rights Act was' triggered, that may cut off some of the more theoretical or preliminary stages that perhaps Your Honor is worried about. The first fact is that prosecutors in this case identified specific federal offenses committed against specific victims, and that's one of the reasons we need the correspondence, to show that that fact exists. Secondly, the prosecutors in this case determined that there was evidence which they could present at trial and prove beyond a reasonable doubt that those crimes had been committed. The third fact is that in this case, the victims were given notices that their rights had attached under the Crime Victims' Right Act. You will recall in our exhibits, several notices that went to both Jane Doe No. 1 and Jane Doe No. 2 saying, you have rights under the Crime Victims' Rights Act. At least in a situation where the government itself has said, we think at this point rights have attached, that's when rights should be deemed to have attached. The fourth fact that's present here is that the prosecutor sat down with defense attorneys to negotiate a non-prosecution agreement. So let's take a case where the bank robber runs out of the bank and he's on the front steps of the 561-835-0220 EFTA01123052 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 65 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bank, do the rights attach then? Well, no, that's a very preliminary stage. But if they start negotiating with the bank robber's attorney saying, okay, we're looking at filing federal bank robbery charges, we're thinking of filing these counts, we would like to discuss with you plea options, at that point in the process that's when the rights attach. That, by the way, I think is exactly what the Fifth Circuit did in the Dean case. There, the government had sat down with a company that was responsible for some deaths. They had negotiated -- they were contemplating filing specific federal charges, and at that point the Fifth Circuit said the rights attached. And the last point is that there is at least the attachment of crime victims' rights when the government is prepared to execute an agreement that will abolish or extinguish the rights of crime victims, and that's exactly what happened here, of course. There was this non-prosecution agreement that was executed that's then eviscerated any possibility that Jane Doe No. 1 or Jane Doe No. 2 would have their day in this federal court and see the child molester that abused them brought to justice. Before that contract could be signed, sealed and delivered, the government had an obligation under the Crime Victims' Rights Act to confer with the victims. So this is a very narrow case. So if you want to ask, you know, the kind of law 561-835-0220 EFTA01123053 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 66 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 professor's question, how far back, you know, do you go, I mean, are all five of those necessary, I mean, I think that' an interesting question. I would say, you really probably don't need all five of those to conclude that the Crime Victims' Rights Act applies. But I think at an absolute minimum, when you have the combination of those five factors, as you do in this case, it's quite clear that the Crime Victims' Rights Act applies here. THE COURT: All right. Thank you. Mr. Lee, I am -- Mr. Lee, before I hear from you, I want to -- I think I'm going to give the reporter a break because I think she has probably had a hard time keeping up with some of the participants this afternoon. Why don't we take a 15-minute break and then we will hear from the government. (Recess.) THE COURT: Please be seated, everyone. All right, Mr. Lee. MR. LEE: Thank you very much, Your Honor. Your Honor, the initial task before this court is to determine the legal issue of when a right would attach under any of thr provisions in 3771(a)(1) through (8), and probably the most important and prominent one that the petitioners have alleged is 3771(a)(5), which is a reasonable right to confer with thr attorney for the government in the case. 561-835-0220 EFTA01123054 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 67 of 113 6 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Initially, this is a statutory interpretation task for the Court and, of course, the Court is guided by the word of the statute, simple enough. And there are various doctrines about plain meaning and the statutes say what they mean and mean what they say, and things like that. Congress provided a very definitive guidepost for courts to interpret the various provisions of the CVRA, and that's contained in Section 3771(d)(6). And if I could quote, and it's the last sentence, Your Honor, quote: Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction, end quote. So this is a guidepost to courts interpreting the CVRA. If there are two conflicting interpretations, perhaps equally reasonable and plausible under the statute -- under the terms of the reading of the statute, if one impairs the discretion of the Attorney General and one does not, then the one that does not impair the discretion of the Attorney General would be the one that would be correct. THE COURT: Well, why does conferring have anything to do with exercising discretion? You can confer with a victim without infringing on your prosecutorial discretion, can't you' MR. LEE: Yes, Your Honor, but here is what I mean: In terms of construing it to apply at a certain point, the Court needs to be mindful of whether this would impair the 561-835-0220 EFTA01123055 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 68 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prosecutorial discretion of the Attorney General or those acting under him. THE COURT: Well, why would conferring impinge on prosecutorial discretion? I mean, you're saying part of prosecutorial discretion is to decide whether or not to confer? MR. LEE: No. What I'm saying is this: To the extent that the individual is given a right to basically undermine or call into question otherwise lawful prerogatives of the Attorney General in deciding what to charge somebody with, when to charge somebody with this, this would constitut an impairment of the prosecutorial discretion and that would be a construction that would not be favored under this advice. Your Honor, this is particularly compelling in this case, because what we are dealing with here is not an indictment that was ultimately returned or a plea agreement that came before this court. This was a non-prosecution agreement. It was a determination by the United States Attorney to engage in an agreement with Mr. Epstein that in consideration for him doing certain things that he would not be prosecuted in federal court for various things. THE COURT: Well, but I think that we wouldn't be here if your office conferred with the victims, told them what you were contemplating, heard them out, and after hearing them out said, thank you very much for your input; we appreciate your position; we understand you'd rather we prosecute 561-835-0220 EFTA01123056 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 69 of 113 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Epstein federally and send him to prison for 50 years, bu- we, exercising our discretion under (d)(6), have chosen to no: prosecute him. And I think we wouldn't be here. I don't see how that would have been an infringement on prosecutorial discretion. MR. LEE: Well, Your Honor, we respectfully believe that we probably still would be here, because -- for this reason: If all of that had been done in 2007, when the agreement was still in its initial stages and about to be executed, and all of these things were done to Jane Does 1 and 2, they were told this, this, this, and this, if they were dissatisfied with this agreement, they would forward and presumably invoke 3771(d)(3) and file an action just like the:, did in this case, and they would complain about this being improperly done. And this is something that this court would have no authority to render an opinion on because under the Separation of Powers Doctrine this is an exercise of discretion on the part of the Government of the United States to which prosecution functions are exclusively entrusted. THE COURT: Well, they may have filed a proceeding even if they had been advised of what your intent was or what your thoughts were. But I'm -- it wouldn't be the same case. I don't know what they would be complaining about, maybe that you didn't confer adequately enough, but I don't think they would be saying, you can't enter into the non-prosecution 561-835-0220 EFTA01123057 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 70 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agreement because we object. MR. LEE: Well, they seem to be suggesting that now, that it should be vacated because they weren't consulted on i. That's exactly what they are claiming. THE COURT: Because they weren't consulted. But if they had been consulted, I don't know how they would have tha: same argument. MR. LEE: Well, Your Honor, what I'm saying is that any interpretation has to be mindful of whether or not it would impair the prosecutorial discretion of the Attorney General. All right. So the issue of when rights attach does impair or could potentially impair the prosecutorial discretion. THE COURT: Why? MR. LEE: Well, because the government believes that: these rights would only attach after a formal charge has been filed. All right? The government has exercised its discretion, and at that point these rights would attach. So if somebody is formally charged and the government enters into negotiations to resolve the matter by a plea, then the individual victims who are identified can be notified, consulted, given a voice, not a veto, and those individuals can have their voice heard. If they're dissatisfied with what the government does -- we've decided to go ahead with the plea they can voice their objections anew before the court in a Rule 11 plea proceeding. So that is a construction that does not 561-835-0220 EFTA01123058 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 71 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 impair a prosecutorial discretion. THE COURT: But why does it make any difference if the conferring or the expression or disapproval is done before indictment or after indictment? How does it impinge on your discretion? I don't follow. MR. LEE: Well, Your Honor, what this would involve is involving the executive branch in litigation because the individual victims, after being consulted -- or after not being consulted -- would basically try to assert rights and basically interfere with the process of returning the charge. Let me give you an example, Your Honor. Let's say somebody is the victim of a crime of violence and the government is investigating it. It's the FBI. And the FBI ha:? decided to refer it to the U.S. Attorney's Office and the U.S. Attorney's Office decides, we don't think there's sufficient evidence to return an indictment in this case; we're not going to accept this for prosecution. Well, there's an FBI case. Under petitioners' formulation, they would have rights to be consulted on the decision whether or not to accept the case for prosecution. And that, we believe, would be an improper interference with the discretion of the United States Attorney's Office. That' exactly what we're talking about, Your Honor. THE COURT: But we're talking about consulting, not deciding whether to or not to prosecute. 561-835-0220 EFTA01123059 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 72 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEE: Yes, Your Honor. THE COURT: So I'm trying to understand how the fac: that you might -- if I accept the plaintiffs' position or interpretation, you might have to consult with the victim before you decide not to prosecute, how that impinges on your ultimate decision to or not to prosecute? MR. LEE: Well, Your Honor, we believe that the proper construction of this thing is to allow the government to exercise its discretion in terms of whether to charge or not to charge. Once that discretion is exercised and there's a charge filed, then these rights would come into play. To do otherwise, to create rights prior to any charging decision being made, would basically allow these individuals to essentially interfere with the exercise of discretion and basically hail the United States Government into court every time somebody is now dissatisfied with something that is being done. The more orderly process is to have those rights attach after the filing of a formal charge, in which case there is an extant case; it is a matter before a judicial officer of- the United States Federal Courts; and these things can be mor orderly ironed out and these disputes can be aired out. Your Honor, if I may, let me move on. THE COURT: Hold on. MR. LEE: Okay. 561-835-0220 EFTA01123060 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 73 of 113 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Would you or would you not agree that all of the rights that are set forth in 3771(a), all of them have to do with an actual ongoing proceeding other than possibly the right to confer and the right to be treated with fairness? MR. LEE: That's correct, and also -- THE COURT: Or the right to be protected from the accused. MR. LEE: Yes, (a)(1). There are actually five of them, Your Honor, that specifically reference or -- arguably clearly suggest that it only applies to a proceeding that's in existence, yes. THE COURT: All right. Well, if you -- if I agree with your interpretation of the case, meaning _'t -z; case. MR. LEE: Yes. THE COURT: But the concern that you're having about if I interpret this act to create rights in a victim before indictment, somehow it's going to flood the court with lawsuits challenging the government's decision either to or not to prosecute, the only one that can possibly apply would be the right to confer. Everything else in there has nothing to do with that possibility. They couldn't come in under any of the other subsections based on a decision not to prosecute, correct? MR. LEE: Well, perhaps (a)(8) might come into play 561-835-0220 EFTA01123061 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 74 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because the individual could say that they weren't being treated with fairness. THE COURT: All right. But if the government does confer, then that would be the only thing. They confer. They decide not to prosecute. Then a victim comes in and says, we're not being treated with fairness because they chose not to prosecute. Then you resort to (d)(6), which says they don't have to agree with you; they just have to confer. And fairness can't be telling them how to go forward with a case or not to go forward with a case, because of (d)(6). So I'm trying to understand how your concern about creating a right to confer before indictment is going to upset your prosecutorial discretion. MR. LEE: Your Honor, I'm not suggesting that any action to enjoin the failure to prosecute, an action to compel the government to prosecute or in this case an action to compel the government not to enter into a non-prosecution agreement would ultimately be successful. But to the extent that a court finds that these rights attach prior to the filing of a formal charging instrument already when the government has - the - United States Attorney's Office has exercised its discretion, to the extent that that right is deemed to exist prior, then it's going to encourage people to come forward and assert wha: they believe to be their rights. THE COURT: All right. Let me ask you about th. 561-835-0220 EFTA01123062 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 75 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provision that talks about when there's no ongoing proceeding. Where is that subsection? MR. LEE: Yes. Well, the venue provision in (d)(3), Your Honor? THE COURT: (d)(3), if no prosecution is underway in the district court in which the crime occurred. If there's no prosecution underway, yet they are recognizing a lawsuit can be filed in the district where the crime occurred, doesn't that suggest that the rights can be enforced before an indictment? MR. LEE: Your Honor, we believe that this provision -- well, it's a venue provision, to tell the individual who seeks to enforce their rights where to file, arc in so far as where the -- if no prosecution is underway in the district where the offense occurred, this would allow somebody to come in and essentially assert their rights for an individual who has been arrested and perhaps charged by a complaint but has not been formally indicted yet and the time limitation for a formal indictment has not lapsed. THE COURT: But you said that the rights don't begin to accrue until indictment. So how can it, you know, work both ways? MR. LEE: Well, there's a right to a notice of public proceedings. So there is an intervening period between initial arrest and initial appearance in a bond hearing. And the individual, if they feared whether -- that the accused wa 561-835-0220 EFTA01123063 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 76 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to harm them, should have the opportunity to attend and have their say in so far as whether somebody should be released and the conditions upon which he or she should be released. THE COURT: All right. So let's assume that someon is arrested; a criminal complaint is filed; there's no indictment; there's a bond hearing; the victim is not notified; the accused is released on bond; attacks the victim; and the victim comes in and files a complaint or a lawsuit. Do they have rights? MR. LEE: There's no cause of action for damages under the CVRA, Your Honor. THE COURT: They file an action asking the court to conclude that their rights were violated under the Act and want the court to know about it, can they do that? Do they have standing to come in and file an action to make the court award of the fact that their rights were violated and you should, you know, take that into account with respect to these prosecutor and -- do they have standing to file a lawsuit and come into court and make the court aware of that? MR. LEE: If they were somebody who was entitled to notice of a public proceeding, like a bond hearing, a pretrial detention hearing, et cetera, and the individual had been apprehended and was before the court, yes, they would have the ability to do that. THE COURT: So they have rights pre-indictment? 561-835-0220 EFTA01123064 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 77 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEE: Yes, in this situation they would. THE COURT: All right. MR. LEE: We've already talked about 3771(a)(1), Your Honor. The petitioners' counsel talked about what I said back on July the 11th, 2008. There is a right to protection from the accused, and whether it springs from 3771(a)(1) or some other provision -- and we did note that there was anothe: provision in the Victims' Rights Act to cover individuals are entitled to protection, that would apply, yes. THE COURT: So is your position then that only with respect to 3771(a)(5), that's the only subsection and only right under this act that requires an indictment, but all th, other rights accrue, at least at the filing of a criminal complaint or an arrest? MR. LEE: Well, Your Honor, five of them reference specific public -- a proceeding. Okay? So that, I think, suggest assumes that there is a formal charge. So we're talking about the three remaining. THE COURT: Well, why can't a bond hearing require full -- you're talking about a criminal complaint is a formal charge? MR. LEE: Well, a formal charge is actually an information or an indictment. A criminal complaint, however, brings the accused before the court for the purposes of detention and then subsequent charging pursuant to the running 561-835-0220 EFTA01123065 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 78 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time that you have -- that the government has before they can return an indictment on the individual. A number of individuals, because of how the crime was discovered, are charged by complaint first, with an indictment to subsequently follow. This basically covers that period of time between the return of a formal indictment and the initial arrest of the individual appearance, bond hearing, pretrial detention hearing. THE COURT: All right. So does a person -- does a victim of a crime, where the accused is arrested and had a criminal complaint filed against him or her, does that victim have a right to notice of the bond hearing? MR. LEE: Yes, they would, Your Honor. THE COURT: All right. Does that person have the right not to be excluded from the bond hearing? MR. LEE: Yes, they would. THE COURT: Does that person have the right to be heard at the bond hearing? MR. LEE: Yes, they would. THE COURT: Does that person have the right to hal., that bond hearing be conducted without unreasonable delay? MR. LEE: Yes. THE COURT: But that person doesn't have a right to confer with the attorney for the government because an indictment hasn't been filed yet? 561-835-0220 EFTA01123066 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 79 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEE: That is correct, because there is no attorney for the government in the case, and we believe that "in the case" is the relevant term that is referenced. THE COURT: And the -- MR. LEE: I'm sorry, sir? THE COURT: No, go ahead. MR. LEE: And "case" means, in our view, informatics or indictment, formal charge. THE COURT: So again, I think I asked you earlier, you're saying that the indictment as a triggering event only applies in subsection 5, because all the others can apply -- can occur before indictment. MR. LEE: It could, under the circumstances of an individual being charged by a complaint. For that period of time in between arrest -- the filing of the complaint, initial arrest and the return of the indictment, it could apply, yes. We believe the strongest case for not applying is 3771(a)(5) because there is no case. THE COURT: And so when a criminal complaint is filed, I think in the clerk's office they give it a case number. MR. LEE: I believe the Court is correct. THE COURT: That's not a case? MR. LEE: No. It would have to be an information or an indictment. 561-835-0220 EFTA01123067 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 80 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: But as far as the clerk's office is concerned, there's a case? MR. LEE: That is correct. THE COURT: But that statute -- that word "case" there, even though in the ordinary course of events in every district of the United States they give a case number to - person who is arrested and a criminal complaint is filed, tha: understanding of the word "case" doesn't apply here; it's cat meaning indictment or information? MR. LEE: That is correct, Your Honor. We referenced Federal Rule of Criminal Procedure 7(c), which talks about indictments and information having to be signed by the attorney for the government, which is the same phrase that is used in 3771(a)(5). THE COURT: Okay. And so I guess the subsection that talks about investigation -- MR. LEE: You're talking about (b)(1), Your Honor? THE COURT: (b)(1)? MR. LEE: Let's see. I'm sorry. You're talking about (c)(1), Your Honor, I think, best efforts, and the personnel who are responsible for assuring the individual was accorded their rights? THE COURT: Yes. And the detection, investigation or prosecution of the crime. MR. LEE: This is (c)(1), Your Honor. Your Honor, 5 61-8 35-022 0 EFTA01123068 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 81 of 113 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the last phrase in (c)(1) is the -- shall be "notified of, and accorded, the rights described in subsection (a)." So this does not inform when those rights attached. It essentially says, these are the persons who are responsible for ensuring that best efforts are utilized to ensure these individuals have these rights once they attach under subsection (a). If I may give an example, Your Honor, somebody is charged with a crime. Let's say it's a crime of violence. And the individual fears that they may be threatened by either th defendant, if the individual makes bond, or the defendant's relatives. This is a matter before the court because a formal charge has been filed, but the responsibility for ensuring reasonable protection under 3771(a)(1) would not be a responsibility of the prosecutor doing the case or the United States Attorney's Office, but it would also include those who investigated the case, the agency who has basically brought the case. So this would be the FBI, ATF, whatever law enforcement agency. So this explains what individuals are responsible for ensuring that best efforts are used to afford these rights once those rights attach. But just because individuals who are described as having responsibilities are in the investigative process doesn't necessarily mean that in the investigative process, pre-charge, that such rights attach. THE COURT: So, again, you just basically go back 561-835-0220 EFTA01123069 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 82 of 113 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to -- or fall back on the argument that "case" means indictment or information, and whatever rights accrue under these subsections, those are the people that have to afford the rights? argue? MR. LEE: That is correct, Your Honor. THE COURT: All right. What else did you want to MR. LEE: Your Honor, that was -- that basically is the argument. Again, we ask the Court to be mindful of the admonition about the prosecutorial discretion. The question of when these rights attached is extremely significant in so far as when people can go into court and invoke rights which they believe to exist, and to complain about things that happened which involved the exercise of the broad discretion of the executive branch whether to charge somebody, how to charge.:: them, who to charge, what to charge, and how to resolve the charges against an individual. Thank you. THE COURT: I'm -- MR. LEE: Yes, sir? THE COURT: Let me ask you another question. Assume for the sake of argument, because the motion that -- the motion that the plaintiffs have filed have asked me to not only to make a determination as to when their rights accrued but also that -- to make a finding that the government has in fact violated their rights based upon the information contained in 561-835-0220 EFTA01123070 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 83 of 113 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their motion. If I reject your argument and conclude that th- plaintiffs did have rights as victims, that that were to be respected under the statute, do you agree or do you believe wt, need to resolve on another day whether or not their rights were, in fact, violated, based upon what has been presented to me thus far? MR. LEE: Yes, Your Honor. Your Honor, if the Cour.. finds that these rights did indeed attach prior to the filing of a formal charge, we have asserted a best efforts defense, if you will -- I will call it that -- that we did exert our best efforts to notify individuals under these circumstances of what was going on in so far as the non-prosecution agreement. That, in our view, would require an evidentiary hearing and testimony and documents -- factual matters to be submitted for the Court to make a determination as to what occurred and whether this constituted best efforts or not. THE COURT: All right. Thank you. MR. LEE: Thank you, Your Honor. MR. CASSELL: May I have just one moment? THE COURT: Yes. I think Mr. Lee is conferring with Ms. Villafana so he may want to add something. Did you have anything else you wanted to add, Mr. Lee? MR. LEE: No, Your Honor. THE COURT: Okay. Thank you. 561-835-0220 EFTA01123071 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 84 of 113 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CASSELL: I think Mr. Lee is correct when he says this is at bottom an issue of statutory construction, and we think the cardinal is Congress passed statute to address rule of construction you should apply here the Crime Victims' Rights Act as a remedial a particular problem, the unfair treatment of crime victims throughout the criminal justice process. And so the Act should be broadly construed to effectuate its remedial purposes, that is, to make sure that crime victims are treated fairly throughout the process. The position they are staking out today is that they can simply make rights in the statute disappear through the simple device of not filing an indictment. And I think Your Honor has done a very nice job of walking through why that doesn't apply on a number of the different provisions that are in there, and it would be interesting to see. I think the government is conceding that the right to fairness can apply even before an indictment is filed because that doesn't link that's one of the the right to fair to a court proceeding. And, of course, rights we've alleged has been violated here, treatment. So perhaps I misunderstood but I think the -- at least the effect of the government's position is that that particular right would apply, even though no indictment was applied in this case. But let's look at the (a)(5) right then, the right to confer and whether there was a violation here. The main 561-835-0220 EFTA01123072 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 85 of 113 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 argument that Mr. Lee seems to be advancing is that while tha - would impair the discretion of the Justice Department, the Justice Department advanced the same argument in the Fifth Circuit in the Dean case, and the Fifth Circuit rejected it. Here is what the Fifth Circuit said: Recognizing a right to confer about dispositions is, quote, not an infringement on the government's independent prosecutorial discretion. And instead, it is only a requirement that the government confer in some reasonable way with the victims before ultimately exercising its broad discretion. We would ask you to take exactly the same position in this case. We simply believe that we had an -- we were entitled to an opportunity to confer with them before decided to do what they did in this particular case. Now he says, well, if you open up this particular case, rule in our favor, the flood gates will be open. IN, wouldn't be here if our clients had been given an opportunity to confer about the non-prosecution agreement and having made what we think would have been compelling arguments not to mov forward in that direction. The government had nonetheless exercised its discretion to move forward. But our clients were denied that chance. They never got to make a presentation to the government about why that was a bad resolution of the case. And we submit that the only remedy, if we get that far, is to therefore set aside the non-prosecution agreement and give them 561-835-0220 EFTA01123073 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 86 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that opportunity. But certainly you shouldn't worry about frivolous claims being raised because those would be frivolcu and would be routinely rejected. In fact, it's interesting, let's look at what has happened in the Fifth Circuit since the Dean case three years ago, when the Fifth Circuit clearly recognized that there wet.o rights before indictment. I don't think Mr. Lee can say in good faith there have been a flood of frivolous claims. I track crime victims' rights litigation. I don't think that there's been any sudden spurt of litigation down there. Now, he also says that, well, this would lead to interference because people would object to whether we decidc to accept a case or not. That's the question that you were raising with me earlier, how far back in the process do we go. We don't have to deal with those questions in this particular case. The government accepted this case for prosecution. They then did what? They sent CVRA notices to our clients saying, you have rights under the Crime Victims' Rights Act. Then they sat down with Epstein's attorney to negotiate a very specific non-prosecution agreement which would make it impossible for any federal prosecutorial agency to prosecute the federal crimes that were committed against Jane Doe No. 1 and Jane Do No. 2. At least at that point, they had the right to say to the prosecutors, you are making a mistake, and that's the right 561-835-0220 EFTA01123074 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 87 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that Congress gave them and that's the right that's being violated here. Now, how far back in the process do we go? I think we got a little more specificity from the government today. We hear that it turns out it's not really the indictment that triggers the right. You go all the way back to a complaint. But then you pushed him a little bit more, what about an arrest? And if I understood Mr. Lee correctly, they agree that even an arrest would be enough to trigger that. But, of course, an arrest is not a formal charge. And why would we magically stop the Crime Victims' Rights Act at the point of arrest? The term "arrest" doesn't appear anywhere in the statute. Essentially, they are trying to stake out a litigating position that helps them in this case but it doesn't have any grounding at all in the language of the statute. Th. language of the statute that's relevant here is that it applies to agencies that are involved in the detection and investigation of crimes. The words "investigation of crimes" will become completely meaningless in the statute if you agre- with the government's position. Now, the last thing that Mr. Lee says is, well, this right to confer applies only to cases, and obviously there's no case here. I don't think that point is obvious at all. And, in fact, I would simply use the words that the government used when they communicated with Jane Doe No. 1. Here is the letter 561-835-0220 EFTA01123075 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 88 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that they sent to Jane Doe No. 1 on January 10th, 2008: Dear Ms. Jane Doe No. 1, this case is currently under investigation. They told Jane Doe No. 1 that her case was under investigation, and they told her in communications like this that she had rights under the Crime Victims' Rights Act. And now they come into this court and ask you to find that even though that's exactly what they told Jane Doe No. 1, you should simply ignore what they said then and conclude that they had no rights. Whatever else you might say about that, I think that's clearly a violation of a right to confer but it's certainly a violation of their right to be treated with fairness. It is a violation of their right to accurate notic about what's going on in court proceedings. And so how should you proceed at this point? Let m. offer just one possible way out procedurally of where we are right now. I think the Court has plenty of information to rule today that the Crime Victims' Rights Act applied to the victims in this particular case and we would ask you to enter an order to that effect. If you're not prepared to do that, then at that point we would request full discovery in this case. Or 1: you enter an order saying it applies pre-indictment, we would also ask to move forward with full discovery. Simply to say that the civil rules apply, we're prepared to move forward on an expedited basis. We're prepared to move forward with 561-835-0220 EFTA01123076 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 89 of 113 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 narrowly tailored requests on the information that we need; recalling, though, that we're going to be asking for information not only to prove that the victims' rights were violated in this case but we are also going to be asking for information that we hope will ultimately convince you that the only just remedy in this case is to take this illegal agreement that was reached by the government, in violation of the right of Jane Doe No. 1 and Jane Doe No. 2, and to set that agreement aside. THE COURT: ourselves. You call cases that basically beyond the statutory I guess this is maybe getting ahead of it an illegal agreement and you rely upon set aside sentences or that are in fact authority of the court to impose. Therc' nothing illegal about the substance of this agreement itself, as compared to a sentence which is, let's say, in excess of the statutory maximum. That is clearly an illegal sentence; it's beyond the power of the court to impose. This agreement is not outside of the U.S. Attorney's Office to enter into. The substance of it is not illegal. You're saying the manner in which it was entered into or the process -- MR. CASSELL: That's right. THE COURT: So those cases -- do you think those cases really apply to this situation saying that it's illegal and therefore an unenforceable agreement? MR. CASSELL: Yes, we do. I mean, the point -- the 561-835-0220 EFTA01123077 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 90 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 general proposition that those cases stand for is that an illegal agreement can be set aside. And so the question then becomes, all right, does it have to be substantively illegal or is it enough to show that something is procedurally illegal? Let me give you what I think is a very straightforward example of an illegal procedural agreement. Suppose this court were just to enter an order today saying, I know Smith is a criminal; I'm going to sentence Smith to two years in prison. Well, wait a minute. That would be within -- two years in prison for dealing drugs. Well, dealing drugs i - a five-year maximum. Two years is within that. But that is r. procedurally illegal sentence because Mr. Smith never had his right to a jury trial, his right to counsel, opportunity to confront. So you would -- that agreement or that sentence would be ultimately challenged as being procedurally illegal. We think the same analysis applies here. There is document, a non-prosecution agreement, that is void because is was entered into in a procedurally illegal way. It violated the rights of both Jane Doe No. 1 and Jane Doe No. 2 to have an opportunity to confer with the government and to be treated with fairness. But, again, we have not had a full opportunity to brief that. THE COURT: I understand that. I was just MR. CASSELL: But that's where we are going, and I want to be clear when we get into the discovery phase we 5 61-8 35-022 0 EFTA01123078 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 91 of 113 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think -- I mean, we think you could rule this afternoon that their rights were violated. We think it's patently obvious they weren't treated with fairness, patently obvious they did not give a right to confer. And if you say, hey, do you really need discovery to do that, we think you could rule on that today. You have denied our motion to accept facts. I'm assuming that's without prejudice to give us the opportunity to deal with that in an appropriate way. THE COURT: Of course. MR. CASSELL: The trickier issue in the case, or at least the one we think requires some discovery, is how was that illegal agreement reached? We intend to produce -- or obtain information from the government which shows they deliberately violated the rights of the victims and they did so with the defendant, Mr. Epstein, engineering them. And for that reason, we are going to ask for the agreement to be set aside. THE COURT: To the extent you want to show that, and assuming I agree that you're entitled to show that, you would agree the government is entitled to show to the contrary and that they exercised best efforts, and they should be entitled to prove otherwise? MR. CASSELL: We're not arguing for a one-sided affair here at all, no, Your Honor. THE COURT: All right. Thank you. 561-835-0220 EFTA01123079 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 92 of 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CASSELL: Thank you. THE COURT: Mr. Lee, did you have something else? MR. LEE: Your Honor, I have one procedural matter, if I may. Thank you, Your Honor. Your Honor, in May of this year, the Office of Legal Counsel for the Department of Justice issued an opinion about the very issue that the Court is grappling with, and we would like to offer to the Court we will actually file it, but i: I may approach and provide a copy, I've provided a copy to counsel. We believe that this is entitled to some deference in so far as this is the position of the Department of Justice. We're not suggesting that it's entitled to full deference under Chevron versus Natural Resources Council, because this was not subject to notice and comment procedures. We are going to file it electronically and we wanted to provide a copy to the Cour' now, if we may. THE COURT: Any objection? MR. CASSELL: If I could just comment briefly on the substance that's in there? THE COURT: Sure. MR. CASSELL: This is a -- you will recall just little bit ago we were discussing Senator Kyl's remarks. That's why Senator Kyl sent the letter to the Attorney General saying, how dare you put in this memorandum my remarks during the drafting of the CVRA as suggesting that the rights don't 561-835-0220 EFTA01123080 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 93 of 113 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 apply at the early stages of the criminal justice process. So if you're going to look at this, I think in fairness you need to look at Senator Kyl's rebuttal. The other point that I would make is, we believe tha- this document was engineered precisely to help the government win, among other things, this particular case. And so we don't believe that it's entitled to the same kind of deference as you would ordinarily give to agency decisions that are decided without regard to pending litigation. Perhaps Mr. Lee could acknowledge the fact, which I think is clear, that the Justice Department knew it had this very serious matter pending in this court, which is why it asked for this opinion. And so this opinion is, I think, simply like an extra brief coming in cn their side. THE COURT: And you didn't ask Senator Kyl to write the letter? You didn't ask Senator Kyl to write the letter? MR. CASSELL: We keep Senator Kyl apprised of significant developments. MR. LEE: Your Honor, we did not -- we, the United States Attorney's Office, did not request this. It was issued originally on December 17th but it was not made public. Essentially, this was a position taken by the Department of Justice. THE COURT: Okay. Thank you. MR. LEE: Thank you. 561-835-0220 EFTA01123081 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 94 of 113 2 3 ,,.1 THE COURT: All right. Anything else we need or should talk about before we adjourn? MR. EDWARDS: I don't think so, Your Honor. 4 THE COURT: All right. Thank you. Thank you all fm, 5 coming. We will try and get some rulings out in the near 6 future. Have a good afternoon. 7 (The hearing was concluded.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 61-83 5-022 0 EFTA01123082 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Page 95 of 113 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE STATE OF FLORIDA COUNTY OF PALM BEACH I, Melinda Colchico, Florida Professional Reporter, Star.: of Florida at large, do hereby certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true and complete record of my stenographic notes. Dated this 15th day of August, 2011. 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75:16,25 76:22 78:2,7 79:14 80:21 81:9,10 82:17 individuals 70:21 72:13 77:8 78:3 81:5,19,21 83:11 induce28:4 ineffective 17:22 inform81:3 information 14:17 17:1 25:9,21 27:8,12,13,17 35:15 36:20 40:1 40:17,19 41:1,3 41:9 43:5,9,17 43:21,25 44:1,10 44:20 45:3 48:1 48:10,19,24 49:15 50:11 51:17,18 52:2,11 52:22 53:15 54:4 54:6,23 55:11,12 55:13,15,15,16 55:18 56:4 57:3 57:12,14 77:23 79:7,24 80:9,12 82:2,25 88:17 89:1,3,5 91:14 infringement 69:4 85:6 infringing 67:22 initia132:19 35:11 41:17,18 41:23 45:9,10,14 66:20 69:9 75:23 75:24 78:6 79:15 Initially67:1 initiated27:24 input68:24 inquiry5:11 34:6 51:9,13 insert36:1 inside56:13 insistence 28:15 instance 7:9,10 11:7,18 Institute 20:18,21 instrument 74:20 Insurance11:14 intend15:4 22:5 31:11 91:13 intended18:15 45:21 62:11 intending39:14 intent24:13 69:21 interest10:25 11:1 24:20 48:14 48:16,20 interested 60:19 interesting 60:23 66:3 84:15 86:4 interfere71:10 72:14 interference 71:21 86:12 interpret67:7 73:17 interpretation 47:3 67:1 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88:1,2,3,7 89:c 89:8 90:19,19 January88:1 Jay : , 10 3:14 Jeffrey3:9 36:2 jeopardy45:19 48:16 job84:13 judge5:9 6:13 7:20 11:15 21:12 21:17 49:22 53:9 55:6,8 judgment22:16 34:11 35:19 38:9 38:11 39:12,14 39:19 49:17 judlcia146:5 72:20 July45:13 49:6 59:13 60:24 61:3 77:5 jump41:14 June 61:19 jury11:3,9 19:21 23:5,11,14,23 30:8 56:5,10,13 57:4,8 90:13 justice4:24 8:8 -4:t4 23:25 32:11 52:21,24 58:16,23 59:1 65:21 84:6 85:2 85:3 92:6,11 93:1,10,23 Justice's4:16 justified9:6 justify6:3 K K 38:21 keep18:2 22:5 93:17 keeping20:11 66:12 keeps50:6 KENNETH1:12 kick36:5 kind7:5 8:22,23 :4 13:24 16:3 16:17,20,25 22:10,19 26:25 32:4 34:5 35:17 35:20 37:16 39:13 45:17 56:14 65:25 93:7 kinds15:6 561-835-0220 EFTA01123092 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Pageple4euf 10 113 knew37:1 93:11 know7:4 8:8 9:3 9:14,14,15 15:5 15:8 16:1,4 18:21,23 19:9 23:3,14,16 28:22 34:14 43:8 45:3 47:5 49:14 50:11 50:19,25 51:18 55:10 59:12 61:16 63:11,15 65:25 66:1 69:23 70:6 75:20 76:14 76:17 90:8 knowing35:21 knowledge4:20 known57:3 Kornspan2:19 Ky161:14,18,23 62:4,7,14 92:23 93:15,16,17 Kyl's61:14 92:22 93:3 L LI:21 label 39:12 labeled34:10 Lake2:8 language58:24 59:7,12,16,18,19 59:20,22 87:15 87:16 lapsed75:18 large23:5 95:8 late17:19 latest20:17 Lauderdale2:4 law2:6 8:24 11:16 15:23 20:16,17 20:21 21:19,20 22:3 23:9 26:1 31:23 32:2 62:18 75:25 81:17 lawful68:8 laws52:5 lawsuit7:3 45:13 45:16 75:7 76:8 76:18 lawsuits73:18 lawyers3:17 10:13 12:15 13:5 16:4 17:21 20:17 23:8 27:3,11 28:4,8 32:9 lead62:15,20 86:11 learn27:22 leave63:25 1ed59:14 Lee2:14 3:7,9 9:24,25 28:21 29:2,17 30:13 33:7 45:7,8 46:20,22 47:19 48:4 49:3,7,9,10 49:22 50:6,10 52:17 53:1,11,20 54:21 56:16,18 56:24 57:17 58:1 58:4,6 60:19,24 61:3 66:10,10,18 66:19 67:23 68:6 69:6 70:2,8,14 71:6 72:1,7,25 73:5,8,15,25 74:14 75:3,10,22 76:10,20 77:1,3 77:15,22 78:13 78:16,19,22 79:1 79:5,7,13,22,24 80:3,10,17,19,25 82:5,8,19 83:7 83:18,20,23,24 84:1 85:1 86:7 87:8,21 92:2,3 93:9,19,25 Lefkowitz3:18 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37:10 51:1 86:25 malicious6:9 malpractice17:22 mandates43:1 manner89:19 March45:11 Marcus21:12,17 Marie2:14 3:8 MARRA1:12 Maryland 48:5,6,14 materia115:6,7 i9:21,23 23:5,11 24:3,24 25:1 39:16 54:19,20 56:5,8,10 57:22 57:24 materials16:22 20:1 21:10 22:20 22:21,23 23:2,14 23:23 31:12 51:14 56:12,20 matter9:22 10:2 10:18,21 11:3,11 11:21 19:14 44:2 51:5 70:19 72:20 81:11 92:3 93:11 matters3:24 30:8 83:14 maximum89:16 90:11 mcAliley11:16 mean5:19 6:25 15:20 20:13 23:16 24:23 35:7 47:7 50:15 53:7 57:12 61:21 66:2 66:2 67:4,5,23 68:4 81:23 89:25 91:1 meaning40:2 67:4 73:13 80:9 meaningful37:5 meaningless 59:8 87:19 means10:25 34:25 50:7 79:7 82:1 mechanisms 37:22 media15:3 23:23 meet31:11 Melinda1:21 95:7 95:16 member4:21 memorandum 92:24 mention20:16 24:2 mentioned30:6 62:10 mere19:3 merely60:11 merits5:13 19:2 27:1 28:2 34:1 messago6:11 method35:1 Miami2:16,20 middle 35:18 mind49:12 50:3 mindfu167:25 70:9 82:9 561-835-0220 EFTA01123093 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 PagearAll 113 minding4:14 minimum66:6 mini-lawsuits7:3 mini-tria16:24 minute90:9 minutes42:9 missed19:25 mistake86:25 mistreated 52:12 misunderstood 84:20 molestation8:9 molester43:21 65:20 moment62:3 83:19 months 51:8 motion 4:9,12,17 4:18 8:7,17,19 9:21 10:1,5 11:4 11:24 18:14 24:18 29:5,18,18 29:19 30:9,9 34:1,8,8,9,11,14 34:22 35:19 37:19 38:2,3,9 38:12,19 39:12 39:14,19,22,25 40:5,7,9 42:4,4 50:5,6,7 53:7 54:9 55:4 56:2 57:1 82:21,21 83:1 91:7 motions4:2,3 33:25 45:13 move18:7 39:3 41:22 42:12 49:25 72:23 85:19,21 88:23 88:24,25 moving 1 7 :20 19:20 Nt __ : _ N N2:4 3:1 name5:4 6:20 30:4 names23:3,3 24:2 narrow37:22 40:23 63:22 65:24 narrowed39:23 narrowly58:22 89:1 Natura192:13 nature 51:9 NE2:15 near21:13 63:21 94:5 necessarily 15:5 30:16 46:1 81:23 necessary47:4,21 64:2 need9:13 10:6 15:5 22:17,17 27:2 35:18,19 47:9 52:2,16 53:10 54:17 55:14 57:6 58:24 64:8 66:4 83:4 89:1 91:5 93:2 94:1 needed25:4 needs23:15 57:25 67:25 negotiate32:9 35:4,23 64:23 86:19 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48:12 50:12 52:1 53:14 54:5 88:19,22 90:7 ordered25:19 53:2 53:3 orderly 72:18,22 561-835-0220 EFTA01123094 Case 9:08-cv-80736-KAM Document 208 Entered on FLSD Docket 07/10/2013 Pageplalsof 12 113 ordinarily 34:13 53:19 93:8 ordinary34:16,17 41:16 42:14,21 42:23 45:1 80:5 original37:9 originally 93:21 ought5:24 6:1,10 6:11 19:15 21:23 22:14 62:15 outcome24:21 outside5:22 48:14 89:18 overruled25:25 55:8 overturned9:1 P P3:1 pages43:20 Palm1:16 2:23 95:4 panoply15:18 papers 19:12,19,20 ):2,9 part 12:21 20:3 2i:14 52:15 54:14 59:3 63:18 68:4 69:18 participants 66:13 participating 3:23 4:1 particular8:6 11:22 12:17 23:15 29:2 59:14 63:25 84:5,22 85:14,15 86:15 88:19 93:6 partioularly15:16 68:13 parties 14:20 16:19 27:24 32:20 40:3 party4:13 17:3 20:19 21:3 24:4 passed42:25 84:4 patently91:2,3 path42:17,18 patient37:2 Pau12:6 3:13 pending4:9 93:9 93:11 people5:21 20:25 21:5 74:23 82:3 82:12 86:12 peroant13:1,2 23:8 51:16 period75:23 78:5 79:14 permission 25:22 permissive6:15 7:7,8 8:25 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