Court Orders Disclosure of Federal Plea‑Negotiation Emails Between Prosecutors and Jeffrey Epstein’s Lawyers

On July 7, 2008, Edwards and I filed a petition alleging that Jane Doe No. 1 was a victim of federal sex crimes committed by Epstein and that the United States had wrongfully excluded her from plea negotiations. We also alleged that the federal prosecutors had violated her rights under the Crime Victims’ Rights Act (CVRA) — specifically her rights to confer with the government, to be treated with fairness, to receive timely notice of relevant court proceedings, and to receive information about restitution. The United States responded by claiming that it used its “best efforts” to comply with the rights afforded to victims under the CVRA, but that the act did not apply to pre-indictment negotiations with potential federal defendants. After Jane Doe No. 2 joined the initial petition, the district court (Marra, J.) found that both women qualified as “crime victims” under the CVRA. The district court later_rejected the government's argument that the act only applies after the filing of a federal criminal indictment. (I’ve written a law review article about the issue of how early crime victims’ rights attach in the criminal process, which can be downloaded here.) Among other relief, we sought rescission of the non-prosecution agreement as a remedy for the violation of the victims’ rights. To make the case for such a remedy, we moved for discovery of the correspondence between the U.S. and Epstein’s attorneys during the plea negotiations. Epstein’s attorneys intervened, arguing that Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11 create a privilege for plea negotiations, barring release of the correspondence. They also argued that the court should find that the materials were protected under the work product doctrine or, alternatively, should be protected under a new “common- law privilege for plea negotiations.” The district court first ruled that rescission of the plea agreement was a possible remedy under the act. The court then ruled that we were entitled to review the correspondence, rejecting all of Epstein’s arguments. On Friday, the 11th Circuit affirmed the district court's ruling that we could review the plea correspondence. At pp. 18-22 of its published opinion, the court concluded that there was no basis for restricting access to such correspondence when crime victims have a legitimate need to review it. The court rejected, for example, the work product argument because plea discussions are not confidential: Disclosure of work-product materials to an adversary waives the work-product privilege. See, e.g., Jnre Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir. 1988); In re Doe, 662 F.2d 1073, 1081-82 (4th Cir. 1981). Even if it shared the common goal of reaching a quick settlement, the United States was undoubtedly adverse to Epstein during its investigation of him for federal offenses, and the intervenors’ disclosure of their work product waived any claim of privilege. ... The court also declined to recognize a new privilege for plea bargaining, finding the relationship between prosecutors and defense attomeys did not need special protection: Asa last-ditch effort, the intervenors contend that “[i]f more is needed in addition to the plain language of Rule 410 to preclude disclosure of the correspondence to plaintiffs, it can be found 46 HOUSE_OVERSIGHT_011957