UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA/JOHNSON JANE DOE | AND JANE DOE 2, Plaintiffs L UNITED STATES OF AMERICA, Defendant / INTERVENORS’ MOTIO: and Jeffrey Epstein hereby and (4) the public interest.” Florida Businessmen for Free Enterprise | City of Hollywood, 648 F.2d 956, 957 (11th Cir. 1981). See, e.g., In re Federal Grand Jury Proceedings (FGJ 91-9), Cohen, 975 F.2d 1488, 1492 (11th Cir. 1992). Those factors are amply satisfied in this case: there is a strong likelihood that intervenors will prevail on appeal (or at a minimum, EFTA00205340

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they have a “substantial case on the merits,” and the “harm factors” militate in favor of granting a stay, Merial Ltd. | Cipla Ltd., 426 Fed.Appx. 915 (11th Cir. 2011), citing Hilton Braunskill, 481 U.S. 770, 778 (1987)); they will be immediately and irreparably harmed by the disclosure of the communications at issue; the plaintiffs will suffer no harm fro granting of a stay until these critically important issues can be resolved. by the ircuit; and to the plicit admissions regarding their client’s conduct — what he did, what he did not do, what he knew, what he intended, and the like — and the attorney’s opinions regarding acceptable 2 EFTA00205341

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resolutions of the matter, admissions and opinions which attorneys in many cases will be loath to commit to written form if they may be subject to later disclosure to civil adversaries of the attorney’s client. This case is far from sui generis — the cases are legion in which there is related counsel and prosecuting authorities in the belief that i the defendant. In addition to the stay factors addressed and Opposition to Motions of Jane Doe | and Jane Doe 2 for Production, Use, and ettlement Negotiations (Doc. 160); Supplemental Briefing of Intervenors Roy Black, Martin Weinberg, and Jay Lefkowitz in Support of Their Motion for a Protective Order Concerning Production, Use, and Disclosure of Plea Negotiations (Doc. 161); Intervenor Jeffrey Epstein’s 3 EFTA00205342

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A. The Applicability of Rule 410. Any assessment of the merits of the intervenors’ contentions must begin with an understanding of the central role of plea bargaining and settlement negotiations in our criminal a system of trials”: ninety-four percent of state convictions are the resul bargains have become so central to the administra defense counsel have responsibilities in the plea bai be met to render the adequate assistance of counse the criminal process at critical stages. Because our: not a system of trials,” it is insufficient simpl backstop that inoculates any errors in the pr criminal justice responsibilities that must endment requires in a system of pleas, f a fair trial as a Lafler J. Cooper, 132 S. Ct. 1376, 1 , 132 S. Ct. 1399, 1407 (2012). In Lafler and Frye, the Supreme , Use, and Disclosure of Plea Negotiations (Doc. 162); Notice of Supplemental Authority of the United States Supreme Court (Doc. 163); and Reply in Support of Supplemental Briefing By Limited Intervenors Black, Weinberg, Lefkowitz, and Epstein (Doc. 169). 4 EFTA00205343

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representing a client under federal investigation have an obligation to secure the best possible outcome for their clients, whether it be one which results, as here, in no charges being brought by the prosecuting authority conducting the criminal investigation or the bringing of fewer, or clients’ severe detriment in other litigation context investigation would not engage in plea negotiations ir Fi ent rights if ong policy considerations mitigating against the result reached by the Court weigh heavily in favor of the likelihood of intervenors’ success on appeal. EFTA00205344

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Contrary to the result reached by this Court, the settlement negotiations at issue here lie well within the heartland of Rule 410's prohibition against the admissibility of plea negotiations “against the defendant who was a participant in the plea discussions” “in any civil or criminal proceeding”. The cases on which the Court relied in concluding that the settlem at issue here do not fall within Rule 410 are uniformly inapposi not support the e was, as the Court notes elsewhere in its opinion, an indictment pending in vhich was related to the matters under federal investigation and which was during the settlement negotiations between intervenors and federal prosecutors. Moreover, there was an active federal grand jury investigation ongoing at the time of the settlement negotiations, further differentiating this case from the cases relied on by the Court. 6 EFTA00205345

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States | Adelman, 458 F.3d 791 (8th Cir. 2006), also involved statements made by the defendant to federal prosecutors; the defendant’s statements were made in meetings at which she was told, according to the government, that she was a “prime suspect” in criminal wrongdoing chances. /d. at 451. Under the Court’s ruling, the attorneys for a no one’s interests — not the defendant’s, not the government’s, not the judicial system’s, and not the public’s. EFTA00205346

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The Court also rejected the applicability of Rule 410 because the communications between Epstein’s counsel and the government led to Epstein’s plea of guilty in state court. In the sole case cited by the Court for this proposition, United States | Paden, 908 F.2d 1229 (5th The plain meaning of Rule 410(4) is that the defendant to the federal offenses under investigation. If Congres: in subsection (4), it would have expressly done so, as expressly provided for change-of-plea proceedings procedures.” Fep.R.Evip. 410(3). Congress did n d leas in subsection (4) . Epstein’s counsel addressed the reasons why Mr. Epstein should not be federally prosecuted. EFTA00205347

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The “central feature” of Rule 410 “is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement.” United States | Herman, 544 F.2d 791, 797 (Sth Cir. 1977). The Rule plea discussions in this case were about offenses fo therefore Rule 410 facially and fully applies. Any ing would render Rule 410 ambiguous and would violate Mr. Epstein’s Fifth Am The rule’s central feature is that the ac is andidly to discuss his or her situation in order to explore the possibili ase through a consensual arrangement. Such candid discussi minating admissions .. . To allow the government to intr s reliance on the rule would be to use the rule as a sword rathe : ield. This we cannot allow; the rule was designed gnition of a Privilege Under Rule 501. ourt rejected intervenors’ contention that the Court should recognize a privilege for communications in the course of settlement/plea negotiations on the ground that Congress has 9 EFTA00205348

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already addressed the issue in Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 and did not see fit to recognize a privilege for plea negotiation communications. Neither the Rules of Evidence nor the Rules of Criminal Procedure, however, have ever dealt with specifying the privileges which will and will not be recognized; instead, they leave that function to the courts Rule 501. 11(f) and 410 deal only with what is admissible; discoverable. Rule 410 begins with the assumption negotiation materials, and thus the Rule describes the ci in which those materials EFTA00205349

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unrestrained candor which produces effective plea discussions between the . . . government and the . . . defendant.” Committee on Rules of Practice And Procedure of The Judicial Conference of The United States, Standing Committee On Rules of Practice And Procedure, 77 F.R.D. 507 with the well-founded expectation that comm later be used to harm the client. The Supreme Court has recogn 410 and 11(e)(6) ‘creat[e], in effect, a which is essential to the administration of justice: greement between the prosecutor and the accused, , it is to be encouraged. If every criminal charge were e states and the federal government would need to multiply a bargain are important components of this country’s criminal justice system. inistered, they can benefit all concerned.” Blackledge |. Allison, 431 U.S. 63, 71 (1977). Those sentiments are just as true today. The Bureau of Justice Statistics of the EFTA00205350

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Department of Justice reports that in 2005, 96.19% of federal criminal cases were resolved by way of a plea bargain. www.ojp.usdoj.gov/bjs/pub/html/fjsst/2005/fjsO5st.htm. That today’s justice system depends on plea negotiations is a monumental understatement. to persuade the judge or the jury is . . . far less important prosecutor” during plea negotiations. United $ er a particular plea is desirable, since “[e]ffective informed opinion as to what pleas should be entered.” EFTA00205351

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“The notion that defense counsel must obtain information that the state has and will use against the defendant is not simply a matter of common sense, . . . it is the duty of the lawyer... .” Id. at 387, citing 1 ABA Standards for Criminal Justice 44.1 (2d ed. 1982 Supp). The Constitution The Supreme Court has “long . . . referred [to these what is reasonable.’” Id. at 387. It is the duty of the lawyer to conduct a prompt inv! case. The investigation should always include e information in the possession of the prosecution and law enforcem Of course, it is not for a lawyer to fabricate defenses, bu' obligation to make suitable inquiry to determine whether valid ones exi ether valid defenses exist, counsel has a duty to initiate plea is duty to faithfully represent the client’s interests. Hawkman Jf. Reason and experience tell us that the system we have in place of sentencing laws, ethical 13 EFTA00205352

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rules, federal court dockets, and constitutional considerations, will not function if plea negotiations are not privileged. After all, “it is immediately apparent that no defendant or his counsel [would] pursue [plea negotiations] if the remarks uttered during the course of it are to be admitted in actice and understandings regarding the confidentiality of such communications on which they relied in making those communications. The attorney intervenors’ decisions 14 EFTA00205353

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regarding the content of the communications sent to the government in the effort to fulfill their professional and ethical obligations to their client — what to say, how much to say, when to say it, and how to say it — were made in reliance upon those communications not being disclosed outside the attorney-to-attorney settlement negotiation process. Indeed, for the r addressed in the preceding section, the settlement/plea negotiation process s o our system of with government counsel. Now, without persuasive precedent, the Co reshaped the settlement negotiation landscape to retroactively eliminate ion of confidentiality reliance on which these en disclosed cannot be undisclosed and returned to its protected state; the damage against which privilege and confidentiality rules are designed to protect will have been done. 15 EFTA00205354

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The value to intervenors of their appeal to the Eleventh Circuit would be entirely vitiated, as, absent a stay, a victory on appeal cannot ever undo the injury already caused. And the anticipated damage here is not simply limited to disclosure to plaintiffs and their counsel, serious Because it is impossible for appellate co’ disclosure of privileged or confidential communicatio recognized that the harm caused by an erroneous EFTA00205355

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In stark contrast to the severe risk of serious and irreparable injury which the failure to grant a stay pending appeal would cause to intervenors stands the clear absence of prejudice to plaintiffs if a stay is granted. The plaintiffs commenced this action in 2008; they did not even the extent that communications authored by Mr. Epstein’s counsel and sent to federal prosecutors during settlement negotiations could ever, arguendo, be deemed relevant to 17 EFTA00205356

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plaintiffs’ action against the government for alleged breaches of their rights under the CVRA,’ a dubious proposition at best, any such relevance could be no more than tangential. Plaintiffs already know full well what the government did or did and did not do with respect to Moreover, the government has made it abun this litigation, the agreement it made with Mr. Epstei Court case law prevents it from doing otherwise. Mr. bargain with the government, and when a bargain i * The Court’s order expressly did not rule on whether any particular piece of correspondence was relevant or admissible. Doc. 188 at 10. EFTA00205357

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alleged victims who were relying on the non-prosecution agreement to seek damages under 18 U.S.C. §2255, and paid civil settlements to these claimants because the non-prosecution agreement precluded his contesting liability. The rescission remedy sought by plaintiffs could alleged violations of the CVRA, which interveno acknowledge that the Court has ruled otherwise (D. contract and constitutional law would be the re-en ecution agreement after be by the failure to grant a on, the State Attorney relied on the non-prosecution agreement when returning a criminal charge that resulted not from the actions of the grand jury but instead as a corollary of the non-prosecution agreement. EFTA00205358

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tule of disclosure to private litigants as introducing injustice and unfairness into the settlement/plea negotiation process. The public’s interest strongly lies in awaiting appellate resolution of the important issues raised in this case before forcing disclosure of documents bargaining stages that are at issue in this matter. 20 EFTA00205359