Document Text Content
Filing # 37357304 E-Filed 02/03/2016 12:44:44 PM
BRADLEY J. EDWARDS and
PAUL G. CASSELL,
vs.
Plaintiffs/Counterclaim Defendants,
ALAN M. DERSHOWITZ,
Defendant/Counterclaim Plaintiff.
___________________________________________/
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE 15-000072
DEFENDANT/COUNTERCLAIM PLAINTIFF ALAN M. DERSHOWITZ’S REDACTED
MOTION TO MODIFY CONFIDENTIALITY ORDER
Defendant/Counterclaim Plaintiff, Alan M. Dershowitz (“Dershowitz”), by and through
undersigned counsel, hereby files his Redacted Motion to Modify Confidentiality Order of
January 12, 2016, and in support thereof states the following:
On January 16, 2016, Defendant Alan M. Dershowitz began the deposition of non-party
Virginia Roberts Giuffre (“Roberts”). Pursuant to this Court’s January 12, 2016 Confidentiality
Order, that transcript currently is under seal. The Confidentiality Order should be modified at
least to allow Dershowitz to defend this case. Dershowitz and his counsel need to be able to
contact witnesses, inform them of Roberts’s testimony, and ask them whether Ms. Roberts’s
testimony is accurate. They also need to be able to use Ms. Roberts’s testimony in other ways as
part of the defense effort, such as by providing it to expert witnesses, among other things. The
bottom line is that Dershowitz’s counsel must be able to use Roberts’s testimony as necessary in
their professional judgment to represent their client, as a matter of fairness and due process.
Accordingly, Dershowitz requests that the Court modify the Confidentiality Order to
confirm that Dershowitz’s counsel may disclose Ms. Roberts’s testimony as they deem necessary
in their professional judgment in order to represent Dershowitz in this case.
BACKGROUND & EXECUTIVE SUMMARY
Dershowitz was first presented with Roberts’s heinous and false allegations against him
when her lawyers, Bradley J. Edwards (“Edwards”) and Paul G. Cassell (“Cassell”), filed certain
now-stricken allegations in the action styled Jane Doe, et al. v. United States of America, No. 08-
80736 (S.D. Fla.) (the “Federal Action”). After Dershowitz defended himself to the media,
Edwards and Cassell sued Dershowitz for defamation. The falsity of Roberts’s allegations, her
credibility, and the investigation her lawyers took to assess those allegations and credibility
before filing those allegations are a critical part of Dershowitz’s defense.
On April 9, 2015, Roberts moved for an order “quashing the subpoena duces tecum
served on her by Defendant, or alternatively, pursuant to Florida Rules of Civil Procedure
1.280(c) for issuance of a protective order sharply limiting the scope of the subpoena” (the
“Motion to Quash”). See Motion to Quash, attached hereto as Exhibit A. Roberts did not move
to seal the deposition transcript and the resulting order did not seal it, but instead directed that “a
confidentiality order shall be entered.” See November 4, 2015 Email from Judicial Assistant
Susan Moss, attached hereto as Exhibit B and November 12, 2015 Order, attached hereto as
Exhibit C. The Confidentiality Order then prepared by Roberts’s counsel and consented to by all
parties includes a provision stating that “[t]he deposition testimony of Non-Party Virginia
Giuffre will be designated as ‘Confidential’ and not subject to public disclosure” and that “[i]t
may only be filed under seal.” See January 12, 2016 Confidentiality Order, attached hereto as
Exhibit D.
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Dershowitz now requests that the Court modify the Confidentiality Order to allow
Dershowitz to use the transcript for those limited purposes as deemed necessary in the
professional judgment of his counsel to ensure Dershowitz is afforded his right to build and
present his defense.
I. DERSHOWITZ MUST BE ALLOWED TO CONTACT WITNESSES AND
ADVISE THEM OF WHAT ROBERTS ALLEGES IN ORDER TO VERIFY OR
DISPROVE HER ALLEGATIONS AND CREDIBILITY AND DETERMINE
WHETHER PLAINTIFFS EVER MADE EFFORT TO CONTACT THESE
INDIVIDUALS TO VERIFY ROBERTS’S ALLEGATIONS AND CREDIBILITY.
As explained by Plaintiffs Edwards and Cassell in their Response to Dershowitz’s Motion
to Determine Confidentiality, the “sexual abuse allegations filed by Edwards and Cassell for
their client Ms. Virginia Giuffre are not peripheral to this lawsuit – they are inherent to it.”
Plaintiffs’ Response to Dershowitz’s Motion to Determine Confidentiality, November 23, 2015,
attached hereto as Exhibit E at 4 (emphasis added). Those “sexual abuse allegations filed by
Edwards and Cassell for their client” go beyond Dershowitz. Another inherent part of this
lawsuit is what investigation, if any, Plaintiffs undertook with respect to the scope of Roberts’s
allegations, all of which bear upon her credibility. Dershowitz argues that Plaintiffs did not
perform a reasonable investigation before making the allegations in the Federal Action.
Plaintiffs argue that they did. Dershowitz must be allowed to contact witnesses and advise them
of what Roberts alleges so that Dershowitz can not only verify or disprove her allegations and
credibility, but also determine whether Plaintiffs ever made efforts to contact key witnesses to
verify Roberts’s allegations and credibility. As explained by one Florida court, “[o]penness in
courts has a salutary effect on the propensity of witnesses to tell the truth” as it “informs persons
affected by litigation of its effect upon them . . . .” John Doe-1 Through John Doe-4 v. Museum
of Sci. & History of Jacksonville, Inc., No. 92-32567-CI-CI, 1994 WL 741009, at *1 (Fla. Cir.
Ct. June 8, 1994) (internal citations omitted).
3
As set forth in Dershowitz’s Motion for Clarification of Confidentiality Order or Relief
from that Order, filed Jan. 29, 2016, it appears that Roberts made false statements in a publicly
filed affidavit about being present at a private island in the US Virgin Islands when former
President Clinton was there. Indeed, former FBI Director Louis Freeh determined based on the
response of the federal government to a FOIA request that the absence of records responsive to
the request “strongly establishes that former President Clinton was not present on Little St.
James Island during the period at issue.” Id. at 2. If Roberts made a false statement under oath
about former President Clinton, it is equally if not more likely that she has made false statements
about others whose whereabouts are more difficult to track.
Roberts cannot reasonably argue her testimony is confidential as she has already
disclosed this same information to the media and others. See Excerpts of Roberts’s Deposition
Transcript, attached hereto (under seal) as Exhibit F. 1
Roberts admitted that she sold her story in
2011, providing the media with the names of her many alleged abusers and providing details so
lurid that even the tabloid refused to repeat all of them. See id.; see also March 2, 2011, Sharon
Churcher, Daily Mail, attached hereto as Exhibit G. Dershowitz has also discovered that Roberts
repeated her allegations about her alleged abusers to many of her friends and family. See Exhibit
F; see also AD-006931-006933, Transcript of Telephone Conversation Between Alan M.
Dershowitz and Rebecca, attached hereto as Exhibit H. As a result, Roberts cannot claim that
these allegations are confidential simply because she repeated them during her deposition.
1 As per the Confidentiality Order, Exhibit F is only filed under seal.
4
II.
DERSHOWITZ MUST BE ALLOWED TO SHARE ROBERTS’S DEPOSITION
TRANSCRIPT WITH THOSE WORKING ON DERSHOWITZ’S BEHALF AS
PART OF THIS LITIGATION.
Dershowitz asks the Court to modify the Confidentiality Order to allow Dershowitz to
use the transcript in ways necessary for his defense including sharing the transcript with any
counsel and other legal support, experts, consultants, insurers, and others typically permitted
access to supposedly confidential information in addition to using it with potential witnesses and
others as deemed necessary in the professional judgment of his counsel as set forth above.
Dershowitz and his attorneys are aware of and will abide by the Florida Rules of Professional
Conduct, including its comments, regarding the handling of any information deemed by this
Court to be confidential within the limitations of the applicable rules.
III.
ALLOWING DERSHOWITZ TO USE THE DEPOSITION FOR THE LIMITED
PURPOSES OF HIS DEFENSE IS REQUIRED BY FLORIDA LAW.
Florida law requires that any sealing order be the least restrictive means necessary to
accomplish its purpose. The Florida Supreme Court held in Barron v. Florida Freedom
Newspapers, 531 So. 2d 113 (Fla. 1988), that a sealing order can be entered only where “no
reasonable alternative is available to accomplish the desired result, and, if none exists, the trial
court must use the least restrictive closure necessary to accomplish its purpose.” Id. at 118
(emphasis added); see also Carter v. Conde Nast Publ’ns, 983 So. 2d 23, 26 (Fla. 5th DCA
2008) (“an order sealing court records must state, inter alia, the particular grounds for making the
court records confidential, that the closure is no broader than necessary, and that there are no less
restrictive measures available.”).
This Court has not set forth any reasons addressing a request by Roberts to seal her
deposition transcript, much less determined that “no reasonable alternative is available” to
accomplish Roberts’s desired result. See News-Press Publ’g Co. v. State, 345 So. 2d 865, 867
5
(Fla. 2d DCA 1977) (“The judge’s statement that he had ‘cogent reasons’ for sealing the records
obviously fell short of specifically setting forth the reasons why public access to these deposition
was being denied.”). Moreover, Roberts and Plaintiffs cannot argue that sealing her deposition
in its entirety is “the least restrictive” option, as it is most certainly the most restrictive option
and one that Florida courts take very seriously. “[A] closure order must be drawn with
particularity and narrowly applied.” Barron, 531 So. 2d at 117.
Here, that requisite “least restrictive” application requires, at a minimum, allowing
Dershowitz to use Roberts’s testimony for the limited purposes necessary in the professional
judgment of his counsel to represent their client, as a matter of fairness and due process.
CONCLUSION
Because Dershowitz must be able to prepare his defense and any sealing order must be
the least restrictive measure available, the Court should modify the Confidentiality Order to
confirm that Dershowitz’s counsel may disclose Roberts’s testimony as they deem necessary in
their professional judgment in order to represent Dershowitz in this case.
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Respectfully submitted,
Dated: February 3, 2016
s/Thomas E. Scott
Thomas E. Scott, FBN 149100
Thomas.scott@csklegal.com
Steven R. Safra, FBN 057028
Steven.safra@csklegal.com
COLE, SCOTT & KISSANE, P.A.
Dadeland Centre II, 14th Floor
9150 South Dadeland Boulevard
Miami, Florida 33156
Phone: (305) 350-5300
Fax: (305) 373-2294
Richard A. Simpson (pro hac vice)
rsimpson@wileyrein.com
Mary E. Borja (pro hac vice)
mborja@wileyrein.com
Ashley E. Eiler (pro hac vice)
aeiler@wileyrein.com
Nicole Audet Richardson (pro hac vice)
nrichardson@wileyrein.com
WILEY REIN LLP
1776 K Street NW
Washington, DC 20006
Phone: (202) 719-7000
Fax: (202) 719-7049
Counsel for Alan M. Dershowitz
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been electronically filed through
the Clerk of Broward County by using the Florida Courts eFiling Portal and thus served by
electronic mail: jsx@searcylaw.com, mep@searcylaw.com, scarolateam@searcylaw.com to:
Jack Scarola, Esq, Searcy Denney Scarola Barnhart & Shipley, P.A., Counsel for Plaintiff, 2139
Palm Beach Lakes Blvd., West Palm Beach, Florida 33409; jonijones@utah.gov to: Joni J.
Jones, Esq., Assistant Utah Attorney General, Counsel for Plaintiff Cassell, 160 East 300 South,
Salt Lake City, Utah 84114; brad@pathtojustice.com to: Bradley J. Edwards, Esq, Farmer,
Jaffe et al, 425 North Andrews Avenue, Suite 2, Ft. Lauderdale, FL 33301;
cassellp@law.utah.edu, to: Paul G. Cassell, Esq.,; smccawley@bsfllp.com,
sperkins@bsfllp.com, to: Sigrid S. McCawley, Esq., Boies Schiller & Flexner, LLP, 401 E. Las
Olas Blvd, Suite 1200, Ft. Lauderdale, FL 33301, this 3rd day of February, 2016.
By:
s/Thomas E. Scott
Thomas E. Scott
FBN: 149100
Steven R. Safra
FBN: 057028
8
EXHIBIT A
Filing # 25919336 E-Filed 04/09/2015 05:23:25 PM
IN THE CIRCUIT COURT OF THE 17 TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CIVIL DIVISION
BRADLEY J. EDWARDS, and CASE NO. CACE 15-000072
PAUL G. CASSELL,
v.
Plaintiffs,
ALAN DERSHOWITZ,
Defendant.
/
MOTION TO QUASH OR FOR PROTECTIVE ORDER REGARDING
SUBPOENA SERVED ON NON-PARTY JANE DOE NO. 3
Non-party Jane Doe 3, by and through undersigned counsel and pursuant to Florida Rules
of Civil Procedure 1.410(c)(1) 1 , hereby moves for an order quashing the subpoena duces tecum
served on her by Defendant, or alternatively, pursuant to Florida Rules of Civil Procedure 1.280(c)
for issuance of a protective order sharply limiting the scope of the subpoena.
INTRODUCTION
This Court should quash the subpoena issued to non-party Jane Doe No. 3 as it is
unreasonable and oppressive. The Defendant is abusing the subpoena power in an effort to
intimidate, harass and cause undue burden to a non-party. Indeed, Defendant - just days ago -
publicly admitted that his goal of deposing Jane Doe No. 3 has nothing to do with this Florida
Defamation Action; rather, he is trying to find a way to send this victim of sexual trafficking to
“jail.” “She was hiding in Colorado…but we found her and she will have to be deposed. The end
1 For the limited purpose of the Motion to Quash or for Protective Order and resolving the scope of the
subpoena and any enforcement issues, Jane Doe No. 3 voluntarily submits herself to this Court’s
jurisdiction.
result is that she’ll go to jail because she will repeat her lies and we’ll be able to prove it and she
will end up in prison for perjury.” (emphasis added). See Exhibit 1, New York Daily News, April
7, 2015. Defendant has subjected Jane Doe No. 3 to horrific public attacks including publicly
calling her a “prostitute” and a “bad mother” to her three minor children. See Exhibit 2, Local 10
News, January 22, 2015.
Defendant has gone on a media blitz campaign against this non-party for statements she
made under oath in a federal action: “The end result of this case should be she [Jane Doe No. 3]
should go to jail, the lawyers should be disbarred and everybody should understand that I am
completely and totally innocent.” (emphasis added). See Exhibit 3, CNN International, New Day,
January 6, 2015. “My goal is to bring charges against the client and require her to speak in
court.” (emphasis added). See Exhibit 4, Australian Broadcasting System (ABC), January 6,
2015. Defendant also stated, in an interview in Newsmax, that he is “considering” bringing a
lawsuit against Jane Doe No. 3. “And we’re considering suing her for defamation as well, but
right now she was trying to hide in Colorado and avoid service, but we found her and we served
her and now she’ll be subjected to a deposition.” (emphasis added). See Exhibit 5, Newsmax,
April 8, 2015.
Defendant’s own words demonstrate that he is abusing the subpoena power of this Court to
try to get discovery that is irrelevant to this case, in the hopes of being able to intimidate Jane Doe
No. 3 with the press and generate a claim against her. Considering the extensive abuse that Jane
Doe No. 3 suffered as a minor child, and Defendant’s threats and intimidation, it would be both
unreasonable and oppressive to require this non-party to comply with this subpoena duces tecum.
Accordingly, Defendant’s subpoena should be quashed. See Exhibit 6, Defendant’s Subpoena to
Jane Doe No. 3.
2
BACKGROUND
The underlying action before this Court is a defamation case filed by a former federal
judge, Paul Cassell, and his colleague Brad Edwards, who represent various sexual trafficking
victims in a case pending in the Southern District of Florida, specifically case no. 08-cv-80736-
KAM, hereinafter (“CVRA case”). As a result of an affidavit filed in the CVRA case, Defendant
went on a national media defamation campaign calling, among other things, former federal judge
Paul Cassell and attorney Brad Edwards, “unethical lawyers” who should be “disbarred”. See
Exhibit 7, Today Show, January 5, 2015. In response to this national slander campaign by the
Defendant, Paul Cassell and Brad Edwards filed a defamation case against Defendant in the
Circuit Court of the Seventeenth Judicial Circuit for Broward County, Case No. CACE 15-
000072, hereinafter “Florida Defamation Action”).
Defendant’s statements against Paul Cassell and Brad Edwards are statements about their
character as lawyers and do not directly involve non-party Jane Doe No. 3. Despite this fact,
Defendant is abusing the subpoena power in this case by seeking documents from a non-party that
are irrelevant to the defamation issue before this Court. Defendant is determined to find a way to
harm non-party Jane Doe No. 3 and anyone who braves to represent her. Jane Doe No. 3 has good
cause to be fearful of the Defendant in this matter based on Defendant’s repetitive threats. See
Exhibit 8, Affidavit of Jane Doe No. 3. This Court should not allow Defendant to abuse the
subpoena power to further abuse this non-party. Florida Rules of Civil Procedure provide a
vehicle for this Court to protect a non-party from a harassing, burdensome and unnecessary
subpoena. As explained below, non-party Jane Doe No. 3 should be protected from having to be
deposed in this matter or produce documents. Defendant’s campaign of threats and intimidation
should not be condoned by this Court and Defendant’s subpoena should be quashed in its entirety.
3
ARGUMENT
1. This Court Should Quash Defendant’s Abusive Subpoena In Its Entirety.
Florida Rule of Civil Procedure 1.410(c)(1) provides that the Court may “quash or modify
the subpoena if it is unreasonable and oppressive.” Id. The Court has discretion to evaluate the
circumstances in determining whether the subpoena is “unreasonable and oppressive.” Matthews
v. Kant, 427 So. 2d 369, 370 (Fla. 2d DCA 1983). “The sufficiency thereof is a factual
determination for the trial judge who is vested with broad judicial discretion in the matter, and
whose order will not be overturned absent a clear showing of abuse of discretion.” Id.; see also
Sunrise Shopping Center, Inc. v. Allied Stores Corp., 270 So. 2d 32 (Fla. 4th DCA 1972) (Fourth
DCA quashing lengthy subpoena served on non-party who was not in control of documents as
being “oppressive and unreasonable.”). It is undisputed that Jane Doe No. 3 was sexually
trafficked as a minor child by Jeffrey Epstein and he was sentenced for his crimes. Allowing the
Defendant in this case to force this non-party to provide discovery on this highly sensitive topic
would be both oppressive and unreasonable and serves no purpose other than to foster Defendant’s
publicly admitted and utterly baseless campaign to try to send Jane Doe No. 3 to “jail.”
The documents requested in Defendant’s subpoena demonstrate the oppressive and
unreasonable nature of the requests. Defendant, for example, seeks highly personal and sensitive
information from this victim of sexual trafficking, including requesting her personal diary during
the time when she was being sexually abused as a minor child. See Exhibit 6, Request no. 16.
Defendant also demands that this non-party produce photographs and videos of her as a minor
child while she was being sexually trafficked by convicted sex offender Jeffrey Epstein. See
Exhibit 6, Request nos. 2, 3, 4 and 10. Defendant’s unreasonable subpoena even includes a
demand for this non-party’s personal cell phone records for more than a three (3) year period
during the time when she was a minor child being sexually trafficked. See Exhibit 6, Request no.
4
15. Defendant also demands items like personal financial documents from this non-party
including payments she received from convicted sex offender Jeffrey Epstein and the men he
“lent” this minor child out to from 1999 – 2002. See Exhibit 6, Request no. 20. It is without
question that Defendant is abusing the subpoena power in this case to conduct a fishing expedition
in an effort to intimidate and harass this victim and to try to dig up information he can use in his
openly stated “goal” to send this non-party to “jail.”
Jane Doe No. 3 is rightfully fearful of Defendant as he is an incredibly powerful individual
and the legal counselor to convicted Jeffrey Epstein who sexually trafficked Jane Doe No. 3 for
years when she was a minor child. See Exhibit 8, Affidavit of Jane Doe No. 3. Jane Doe No. 3
believes Defendant’s goal is to abuse the subpoena power to get her into a deposition so he can
harass and intimidate her by forcing her to discuss the abuse she had to withstand as a minor child.
See Exhibit 8, Affidavit of Jane Doe No. 3. None of that childhood abuse is relevant to this case
which involves the narrow issue of whether Defendant defamed two lawyers. Defendant’s
subpoena is both unreasonable and oppressive and should be quashed. See Matthews v. Kant, 427
So. 2d 369, 370 (Fla. 2d DCA 1983).
2. The Court Should Quash The Subpoena In Its Entirety, But At A Minimum, It
Should Severely Limit The Production Requirements.
In addition to its power to quash the subpoena, Florida Rule of Civil Procedure 1.280(c)
also allows the Court to protect a non-party from discovery that would result in “annoyance,
embarrassment, oppression or undue burden or expense…” Allstate Ins. Co. v. Langston, 655 So.
2d 91, 94 (Fla. 2003) (Florida Supreme Court overturning denial of protective order and holding
that “[d]iscovery of certain kinds of information ‘may reasonably cause material injury of an
irreparable nature.’”) (internal quotations omitted). Matthews v. City of Maitland, 923 So. 2d 591,
595 (Fla. 5th DCA 2006) (quashing discovery order where “[t]he compelled disclosure… would
create a chilling effect on [petitioners] rights…”). The Court may determine that “the discovery
5
not be had” or that “the discovery may be had only on specified terms and conditions…”. Fla. R.
Civ. P. 1.280(c).
Defendant issued a vastly overbroad subpoena to this non-party which included 25
separate document requests, many with subparts. In addition to placing an undue burden on this
non-party to have to search for the broad scope of materials requested, the document requests seek
information that is irrelevant to the Florida Defamation Action and clearly intended to “embarrass
and oppress” this non-party. Fla. R. Civ. P. 1.280(c). Defendant’s overly broad subpoena to nonparty,
Jane Doe No. 3, goes so far as to seek documents relating to former President, Bill Clinton
and former Vice President, Al Gore, which, even if such documents existed, would be absolutely
irrelevant to the Florida Defamation Action. See Toledo v. Publix Super Markets, Inc., 30 So. 3d
712 (Fla. 4 th DCA 2010).
Defendant’s requests can be grouped into four key categories: (1) documents that contain
highly personal and sensitive information sought only to harass, embarrass and intimidate the nonparty;
(2) documents unrelated to this action and, instead, intended to gain discovery relating to
Defendant’s admitted “goal” of putting this non-party in “jail,” bringing a new case against Jane
Doe No. 3, or related to the federal action; (3) documents that contain personal financial or other
confidential information; and (4) privileged communications between the non-party and her
lawyers. Non-party, Jane Doe No. 3, has filed specific objections as to each request sought in
Defendant’s subpoena as set forth in Exhibit 9. Here, Jane Doe No. 3 provides the Court with a
sampling of the oppressive nature of the subpoena that is the subject of her detailed objections.
a. Category 1 – Overly Broad Subpoena Requests Intended Solely to Harass, Embarrass
and Intimidate the Non-Party by Seeking Highly Personal and Sensitive Information
It is clear from the Defendant’s requests that his intent is to intimidate and harass this nonparty
by seeking highly sensitive personal information that is irrelevant to this action. For
example, Request no. 16 seeks “Any diary, journal or calendar concerning your activities between
6
January 1, 1999 and December 31, 2002.” Defendant is seeking personal diary information during
the time this non-party was a minor child and a victim of sexual trafficking. There is no reason
this non-party should be forced to produce her diary from when she was a child. See Peisach v.
Antuna, 539 So. 2d 544 (Fla. 3rd DCA 1989) (court of appeal holding that trial court departed
from the essential requirements of law by granting deposition of party’s gynecologist which was
only meant to invade privacy and intimidate and harass the party).
Defendant also has a number of requests (Request nos. 2, 3, 4, 10 and 19) that seek
“photographs” and “videos” of this non-party when she was a minor child and during the time she
was the subject of sexual abuse. Photographs of Jane Doe 3 when she was a minor child are
completely irrelevant to the matter before this Court. Defendant served this subpoena demand
solely to intimidate, harass and embarrass this non-party and the Court should preclude this type
of discovery set forth in Request Nos. 2, 3, 4, 10, 15, 16, 19 and 21. See Citimortgage, Inc. v.
Davis, No. 50 2009 CA 030523, 2011 WL 3360318 (Fla. 15 th Cir. Ct. April 4, 2011) (trial court
granting protective order precluding a deposition noting “this deposition request is mere
harassment” and had no relevance to the underlying dispute where the party was wrongfully using
the discovery process for personal gain).
b. Category 2 – Clear Abuse of the Subpoena Power By Seeking Documents Unrelated
to this Action and Intended Instead to Provide Discovery for Other Actions
Defendant is abusing the subpoena power of this Court by issuing subpoena requests that
are intended to obtain discovery for the development of other actions against this non-party and
are unrelated to the instant case. See Exhibit 5, Newsmax Interview (“And we’re considering
suing her for defamation as well, but right now she was trying to hide in Colorado and avoid
service, but we found her and we served her and now she’ll be subjected to a deposition.”).
Defendant has admitted that his “goal” is to put Jane Doe No. 3 in “jail” and he is using this
Court’s subpoena power to go on a fishing expedition in the hopes of fulfilling his ultimate stated
7
“goal.” See Toledo v. Publix Super Markets, Inc., 30 So. 3d 712 (Fla. 4 th DCA 2010) (court of
appeal quashing discovery order where party sought law firm client file relating to a different
matter holding that “curiosity” about a law firm’s records does not satisfy the relevance
requirement and explaining that the contents of the “subpoena is a classic ‘fishing expedition’ and
the trial court’s order departs from the essential requirements of the law.”); Calvo v. Calvo, 489
So. 2d 833, 834 (Fla. 3d DCA 1986) (quashing subpoena served on wife’s bank for financial
records finding them irrelevant: “indeed, the husband has failed to demonstrate what possible
relevance the records might have in the proceeding below other than to harass the wife.”).
(emphasis added).
Defendant’s incredibly broad and unrelated demands include, for example, Request no. 24:
“All documents concerning, relating or referring to your assertions that you met former President
Bill Clinton, Former Vice President Al Gore and/or Mary Elizabeth “Tipper” Gore on Little Saint
James Island in the U.S. Virgin Islands.” See Exhibit 6, Request no. 24. Whether or not Jane Doe
No. 3 met any of these individuals has absolutely nothing to do with the action before this Court.
See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 2003) (Florida Supreme Court holding
that “we do not believe a litigant is entitled carte blanch to irrelevant discovery” and ‘“It is
axiomatic that information sought in discovery must relate to the issues involved in the litigation,
as framed in the pleadings.’”) (internal citations omitted). Defendant’s Request demonstrates a
blatant example of abuse of the subpoena power.
Indeed, the face of many of Defendant’s subpoena demands demonstrate that he is using
the subpoena power of this Court to obtain discovery for the federal action. Request nos. 1, 5, 6
and 9 all reference the “federal action” or specifically cite the declaration and case number “OS-
SO736-CIV-MARRA/JOHNSON. Request no. 1, for example, demands: “All documents that
reference by name, Alan M. Dershowitz, which support and/or confirm the allegations set forth in
Paragraphs 24-31 of your Declaration dated January 19, 2015 and/or Paragraph 49 of your
8
Declaration dated February 5, 2015, which were filed with the United States District Court for the
Southern District of Florida, in Jane Doe #1 and Jane Doe #2 v. United States of America, Case
No. OS-S0736-CIV-MARRA/JOHNSON, [ECF No. 291-1] (the "Federal Action").” Defendant
should not be using the subpoena power of this Court to issue a non-party subpoena for documents
sought for a federal action. 2
c. Category 3 – Documents that Contain Personal Financial Information Completely
Irrelevant to this Action
Defendant also wrongfully abuses the subpoena power to seek personal financial
information from this non-party. See Woodward v. Berkery, 714 So. 2d 1027, 1034-38 (Fla. 4 th
DCA 1998) (quashing lower court’s discovery order and finding irreparable harm to husband in
disclosure of private financial information when wife’s clear purpose was to wrongfully disclose
the financial information to the press) (emphasis added); see also Granville v. Granville, 445 So.
2d 362 (Fla. 1 st DCA 1984) (court of appeal overturning denial of protective order and finding that
private financial information should have been protected from disclosure).
The requests are clearly meant to intimidate and harass her by, for example, seeking
information during the time she was the subject of sexual trafficking by Jeffrey Epstein. Request
no. 20 seeks “All documents showing any payments or remuneration of any kind made by Jeffery
Epstein or any of his agents or associates to you from January 1, 1999 through December 31,
2002.” Whether Jeffrey Epstein paid minor children that he sexually trafficked has absolutely
nothing to do with the action before this Court and there is no basis to force a non-party who was
subject to this abuse to comply with a production demand on this topic. The subpoena also
includes request for financial information relating to the media. Apparently, Defendant believes
Jane Doe No. 3 has a book “deal” in the works. For example, Request no. 18 seeks: “All
documents concerning any monetary payments or other consideration received by you from any
2 The requests relevant to this category are nos.: 1, 5, 6,7, 8, 9, 12, 13, 14, 22, and 24.
9
media outlet in exchange for your statements (whether "on the record" or "off the record")
regarding Jeffrey Epstein, Alan M. Dershowitz, Prince Andrew, Duke of York, and/or being a sex
slave.” Whether Jane Doe No. 3 has interacted with the media has nothing to do with the Florida
Defamation Action. As explained above, a non-party’s personal financial information and other
confidential information is subject to protection by this Court. See Woodward v. Berkery, 714 So.
2d 1027, 1034-38 (Fla. 4th DCA 1998). Accordingly, the requests relating to financial
information from this non-party should be quashed 3 .
d. Category 4 – Plainly Privileged Communications
Defendant’s subpoena requests seek documents that are plainly privileged. Florida courts
are unequivocal in stating that an opposing party can never obtain attorney-client privileged
materials. See Quarles & Brady LLP v. Birdsall, 802 So. 2d 1205, 1206 (Fla. 2d DCA 2002)
(quashing discovery order and noting “undue hardship is not an exception (to disclosure of
privileged material), nor is disclosure permitted because the opposing party claims that the
privileged information is necessary to prove their case.”) (internal citations omitted). Non-party,
Jane Doe No. 3, objects to all of Defendant’s subpoena requests to the extent that they seek
documents protected by the attorney client privilege, work product doctrine, joint defense and
common interest privileges and any other relevant privilege. Indeed, Jane Doe No. 3 should be
protected from responding to Request no. 25 in its entirety because on its face it seeks solely
privileged and confidential information relating to her retention of BSF. 4
See Westco Inc. v. Scott
Lewis’ Gardening & Trimming, Inc., 26 So. 3d 620, 622 (Fla. 4 th DCA 2010) (court explaining
that “[w]hen confidential information is sought from a non-party, the trial court must determine
whether the requesting party establishes a need for the information that outweighs the privacy
3 These Requests include nos. 9, 17, 18, 20 and 23.
4 Specifically, Request no. 25 seeks: “All documents concerning your retention of the law firm Boies,
Schiller & Flexner LLP, including but not limited to: signed letter of retainer, retention agreement,
explanation of fees, and/or any documents describing the scope of retention.”
10
rights of the non-party.”). Defendant has not established any basis for these privileged and
confidential documents that outweighs this non-party’s privacy rights.
3. The Subpoena Should Be Quashed In Its Entirety. If the Court Will Not Take
That Action, at a Minimum, It Should Grant a Protective Order Severely
Limiting The Areas Of Inquiry At Deposition And Grant Protections For This
Victim Who Is Fearful Of The Defendant.
This Court has the power to preclude and/or limit the deposition of non-party Jane Doe No.
3. Specifically, Florida Rule of Civil Procedure 1.280(c) allows the Court to prevent a deposition
from going forward “to protect a party or person from annoyance, embarrassment, oppression or
undue burden or expense that justice requires,” and courts routinely enter protective orders to
reduce the burden on subpoenaed non-parties to a case, as well as in cases where the discovery
sough is irrelevant. See, e.g., Peisach v. Antuna, 539 So. 2d 544 (Fla. 3d DCA 1989) (holding that
the trial judge erred in allowing the deposition of certain non-parties where evidence sought was
irrelevant); see also Citimortgage, Inc. v. Davis, No. 50 2009 CA 030523, 2011 WL 3360318 (Fla.
15 th Cir. Ct. April 4, 2011) (trial court granting protective order precluding a deposition noting
“this deposition request is mere harassment” and had no relevance to the underlying dispute where
the party was wrongfully using the discovery process for personal gain). Section 4 of Rule 1.280
provides that the Court can also limit the areas of inquiry of a deposition providing “that certain
matters not be inquired into, or that the scope be limited to certain matters.”
Jane Doe No. 3 contends that the subpoena for her deposition should be quashed. If the
Court, however, is inclined to allow a deposition of Jane Doe No. 3, then she respectfully requests
the issuance of a Protective Order modifying the subpoena as set forth below.
a. Testimony Limitations
Non-party Jane Doe No. 3 respectfully requests that this Court limit the deposition to
questions directly related to Defendant’s defamatory statements about Brad Edwards and Paul
Cassell. The Court should limit Defendant’s ability to engage in a “fishing expedition” of this
11
victim to foster his goal of putting her into “jail” or of bringing a new action against Jane Doe No.
3. See Peisach v. Antuna, 539 So. 2d 544 (Fla. 3d DCA 1989); see also Citimortgage, Inc. v.
Davis, No. 50 2009 CA 030523, 2011 WL 3360318 (Fla. 15 th Cir. Ct. Apr. 4, 2011). Defendant
should be precluded from asking any questions about Jane Doe No. 3’s experiences as a sexually
trafficked minor. Defendant should be precluded from questioning Jane Doe No. 3 about
individuals that she was sexually trafficked to or about other victims or individuals involved in the
sexual trafficking orchestrated by Jeffrey Epstein. Defendant should be precluded from
questioning Jane Doe No. 3 about any rapes that occurred when she was a minor child. Defendant
should be precluded from questioning Jane Doe No. 3 about anything related to her sexual activity
either as a minor or thereafter as these questions would only be intended to embarrass and harass
this non-party witness.
b. Language and Harassment Limitations
In addition, Jane Doe No. 3 requests that the Court provide counsel with a cautionary
notice, that counsel for Defendant may not harass the non-party victim in any way during the
deposition. With respect to the language used at the deposition, the Defendant’s counsel should be
directed by the Court to not use any of the derogatory terms the Defendant has used in the press
including calling Jane Doe No. 3 a “prostitute,” a “liar,” or a “bad mother” or any other similar
derogatory and harassing language.
c. Physical Location Limitations
Non-party Jane Doe No. 3 has a valid and real basis to fear being in physical proximity of
the Defendant. See Exhibit 8, Affidavit of Jane Doe No. 3. Accordingly, to the extent a
deposition is to go forward, we would request that the Court direct that the Defendant not be
present in the same room as non-party Jane Doe No. 3 and, instead, follow the testimony
electronically from a separate location. In addition, non-party Jane Doe No. 3 respectfully