Case: 13-12923 Date Filed: 08/30/2013 Page: 1 of 61

Case: 13-12923 Date Filed: 08/30/2013 Page: 1 of 61 No. 13-12923 In the United States Court of Appeals for the District of Eleventh Circuit Jane Doe No. 1 and Jane Doe No. 2, Plaintiffs -Appellees, V. United States of America, Defendant, Roy Black et al., Intervenors/Appellants. JANE DOE NO. 1 AND JANE DOE NO.2'S APPELLEE BRIEF Appeal from the United States District Court for the Southern District of Florida Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 E-mail: [email protected] Paul G. Cassell S.J. QUINNEY COLLEGE OF LAW AT THE UNIV. OF UTAH 332 South, 1400 East, Room 101 Salt Lake City, Utah 84112-0300 Telephone (801) 585-5202 Facsimile (801) 581-6897 E-mail: [email protected] Counsel for Plaintiffs/Appellees Jane Doe No. I and Jane Doe No. 2 EFTA01071961 Case: 13-12923 Date Filed: 08/30/2013 Page: 2 of 61 CERTIFICATE OF INTERESTED PERSONS Pursuant to 11th Cir. R. 26.1, Jane Doe No. 1 and Jane Doe No. 2, through undersigned counsel, hereby certifies that the following persons have an interest in the outcome of this case: I . Marra, The Honorable Kenneth 2. Acosta, R. Alexander 3. Black, Roy 4. Cassell, Paul G. 5. Edwards, Bradley J. 6. Epstein, Jeffrey 7. Ferrer, Wifredo A. 8. Howell, Jay 9. Lee, Dexter 10. Lefkowitz, Jay 11. Perczek, Jackie 12. Reinhart, Bruce 13. Sanchez, Eduardo I. 14. Sloman, Jeffrey 15. Villafafia, A. Marie 16. Weinberg, Martin i EFTA01071962 Case: 13-12923 Date Filed: 08/30/2013 Page: 3 of 61 17. Doe No. 1, Jane 18. Doe No. 2, Jane Note: As they have in the court below, as well as in parallel civil court proceedings, Jane Doe #1 and Jane Doe #2 proceed by way of pseudonym as victims of child sexual assault. ii EFTA01071963 Case: 13-12923 Date Filed: 08/30/2013 Page: 4 of 61 STATEMENT REGARDING ORAL ARGUMENT Appellees Jane Doe No. 1 and Jane Doe No. 2 request oral argument in this case to clarify the factual record. iii EFTA01071964 Case: 13-12923 Date Filed: 08/30/2013 Page: 5 of 61 TABLE OF CONTENTS Contents TABLE OF CONTENTS iv TABLE OF AUTHORITIES vi STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION 1 STATEMENT OF THE CASE AND STATEMENT OF FACTS 1 standard of review 10 SUMMARY OF THE ARGUMENT 12 Argument 13 I. EPSTEIN HAS FAILED TO DEVELOP AN EVIDENTIARY RECORD IN THE DISTRICT COURT THAT HE HAS ANY INTEREST IN THE CONFIDENTIALITY OF THE CORRESPONDENCE 15 II. THE CORRESPONDENCE BETWEEN THE GOVERNMENT AND EPSTEIN IS NOT PROTECTED FROM DISCOVERY BY FEDERAL RULE OF EVIDENCE 410 OR BY THE WORK PRODUCT DOCTRINE 19 A. RULE 410 DOES NOT APPLY IN THIS CASE BECAUSE THE PLEA DISCUSSIONS LEAD TO A GUILTY PLEA. 19 B. THE DISTRICT COURT'S FACTUAL FINDING THAT SIGNIFICANT PARTS OF THE CORRESPONDENCE CONCERNED SUBJECTS OTHER THAN PLEA NEGOTIATIONS IS NOT CLEARLY ERRONEOUS. 25 iv EFTA01071965 Case: 13-12923 Date Filed: 08/30/2013 Page: 6 of 61 C. RULE 410 DOES NOT APPLY HERE BECAUSE THE VICTIMS CAN USE THE CORRESPONDENCE AGAINST THE GOVERNMENT 29 D. RULE 410 DOES NOT BAR DISCOVERY OF THE CORRESPONDENCE. 31 E. THE WORK PRODUCT DOCTRINE DOES NOT APPLY TO CORRESPONDENCE WITH AN ADVERSARY. 35 III. THE DISTRICT COURT PROPERLY CONCLUDED THAT CORRESPONDENCE BETWEEN THE GOVERNMENT AND EPSTEIN IS NOT PROTECTED FROM DISCOVERY BY SOME KIND OF "COMMON LAW" PLEA BARGAINING PRIVILEGE 39 A. THE COURTS CANNOT CREATE A "COMMON LAW" PRIVILEGE THAT OVERULES THE LIMITATIONS OF RULE 410 AND THE STATUTORY COMMANDS OF THE CRIME VICTIMS' RIGHTS ACT. 39 B. NO "COMMON LAW" PRIVILEGE FOR PLEA BARGAINING EXISTS 41 IV. THIS COURT DOES NOT POSSESS JURISDICTION OVER AN INTERLOCUTORY DISCOVERY DISPUTED. 46 CONCLUSION 49 EFTA01071966 Case: 13-12923 Date Filed: 08/30/2013 Page: 7 of 61 TABLE OF AUTHORITIES CASES Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) 13, 18, 19 Charlotte Motor Speedway, Inc. v. International Ins. Co., 125 F.R.D. 127, 130 (M.D.N.C. 1989) 25 Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1314 (11th Cir. 2001) 33 Chrysler Motors Corp. Overnight Evaluation Program Litigation, 860 F.2d 844, 846 (8th Cir. 1988) 42, 43 Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 302 (6th Cir. 2002) 43 Cox v. Administrator U.S. Steel & Carnie, 17 F.3d 1386, 1422 (11th Cir. 1994) 45 Dinnan, 661 F.2d 426 (5th Cir.1981)). 47 El-Ad Residences at Mirarmar Condo. Ass'n, Inc. v. Mt. Hawley Ins. Co., 716 F. Supp. 2d 1257, 1262 (S.D. Fla. 2010)) 21 Folb v. Motion Picture Ind. Pension & Health Plans, 16 F.Supp.2d 1164, 1175 (C.D. Cal. 1998) 53 Frontier Ref., Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 704 (10th Cir. 1998) 40 Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2005) 43 Grand Jury Proceedings, No. 4-10, 707 F.3d 1262, 1266 (11th Cir. 2013) 30 Hendrick v. Avis Rent A Car System, Inc., 916 F.Supp. 256, 259 (W.D.N.Y.,1996) 44 International Horizons, Inc. v. The Committee of Unsecured Creditors, 689 F.2d 996, 1004 (11th Cir.1982) 12, 47, 52 John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981) 25 Kenna, 435 F.3d 1011, 1013 (9th Cir. 2006) 15 Lampley v. City of Dade City, 327 F.3d 1186, 1195 (11th Cir. 2003) 49 Miccosukee Tribe of Indians of Florida v. United States, 516 F.3d 1235, 1265 (11th Cir. 2008) 12, 17 Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) 14 MSTG, Inc., 675 F.3d 1337 (7th Cir. 2012) 11, 37, 53 Padilla v. Kentucky, 130 S.C.t 1473, 1485 (2010). 49 Qwest Communications International, Inc., 450 F.3d 1179 (10th Cir. 2006).. 11, 43 Sealed Case, 676 F.2d 793, 824-25 (D.C. Cir. 1982) 43 Southern Union Co. v. Southwest Gas Corp., 205 F.R.D. 542, 549 (D. Ariz. 2002) 44 Subpoena Duces Tecum Issued to Commodity Futures Trading Com'n, 439 F.3d vi EFTA01071967 Case: 13-12923 Date Filed: 08/30/2013 Page: 8 of 61 740, 754 (D.C. Cir. 2006) 21 Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007) 34 United States v. Barrow, 400 F.3d 109, 116 (2d Cir. 2005) 23, 35 United States v. Biaggi, 909 F.2d 662, 691 (2d Cir. 1990) 35 United States v. Chapman, 954 F.2d 1352, 1360 (7th Cir. 1992) 28 United States v. Copar Pumice Co., Inc., 714 F.3d 1197, 1209 n. 5 (10th Cir. 2013) 54 United States v. Edelmann, 458 F1.3d 791, 804-06 (8th Cir. 2006) 29 United States v. Hare, 49 F.3d 447, 450 (8th Cir. 1995) 30 United States v. Holmes, 794 F.2d 345, 349 (8th Cir.1986) 28 United States v. Kerik, 531 F.Supp.2d 610, 618 (S.D.N.Y. 2008) 25, 28 United States v. Krane, 625 F.3d 568 (9th Cir. 2010) 54 United States v. Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir. 1997) 43 United States v. Merrill, 685 F.3d 1002 (11th Cir. 2012) 29, 32 United States v. Nixon, 418 U.S. 683 (1974) 47 United States v. Paden, 908 F.2d 1229, 1235 (5th Cir. 1990) 24 United States v. Ruhkowsi, 814 F.2d 594, 596 (11th Cir. 1987) 24, 38 University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990) 47 Weatherford v. Bursey, 429 U.S. 545, 561 (1977) 49 Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1429 (3d Cir. 1991) 43 World Holdings, LLC v. Federal Republic of Germany, 701 F.3d 641, 649 (11th Cir. 2012). 11 STATUTES 18 U.S.C. § 3771(a)(8), (c)(1), & (a)(4) passim Fla. Stat. §§796.07 and 796.03 2, 26 OTHER AUTHORITIES 150 CONG. REC. 54261 (Apr. 22, 2004) 15 Crime Victims' Rights Act, Pub. L. 108-405, Title I, § 102(a), 118 Stat. 2261 (2004), 15 U.S. Dept. of Justice, Attorney General Guidelines for Victim-Witness Assistance 41 (2012) 51 RULES Fed. R. Civ. Evid. 408 11, 37, 53 Fed. R. Civ. P. 26(b)(3), 42 vii EFTA01071968 Case: 13-12923 Date Filed: 08/30/2013 Page: 9 of 61 Fed. R. Crim. P. 11(0 9 Fed. R. Evid. 410 passim Fed.R.Evid. 402 23 Local Rule 16.2(G)(2) 52 Local Rule 26.1(g). 17 Rule 501 48 viii EFTA01071969 Case: 13-12923 Date Filed: 08/30/2013 Page: 10 of 61 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION Appellees Jane Doe No. 1 and Jane Doe No. 2 (hereinafter "the victims") have a pending motion to dismiss for lack of subject matter jurisdiction. For the reasons articulated in that motion, the Court lacks jurisdiction over this appeal. STATEMENT OF THE CASE AND STATEMENT OF FACTS In the district court, the victims have alleged the following facts, which the district court properly assumed to be true in ruling on the pre-trial discovery motion of appellants Roy Black, Martin Weinberg, and Jeffrey Epstein (hereinafter collectively referred to as "Epstein") to prevent disclosure of certain correspondence. I The Epstein Investigation and the Non-Prosecution Agreement In 2006, the Federal Bureau of Investigation opened an investigation into allegations that Epstein had been sexually abusing underage girls over the proceeding five years. The United States Attorney's Office for the Southern District of Florida accepted the case for prosecution, and in June, 2007 and August, 2007, the FBI issued victim notification letters to the appellees, Jane Doe No. 1 and Jane Doe No.2. Extensive plea discussions then ensued between the U.S. Attorney's Office All of the following facts are taken from the District Court's recent decision, denying the Government's Motion to Dismiss, District Court Docket Entry (DE) 189, the Victims' Motion for Summary Judgment (DE 48), an affidavit supporting discovery (DE 225-1), and related orders. I EFTA01071970 Case: 13-12923 Date Filed: 08/30/2013 Page: 11 of 61 and Epstein, a politically -connected billionaire represented by a battery of high- powered attorneys. On September 24, 2007, the U.S. Attorney's Office entered into a non-prosecution agreement ("NPA") with Epstein, in which it agreed not to file any federal charges against Epstein in exchange for Epstein pleading guilty to two minor state offenses. 2 The Office entered into the NPA without first conferring with victims, and without alerting them to the existence of the agreement, either before or promptly after the fact — facts that the Government apparently concedes. The U.S. Attorney's Office then kept the victims in the dark about the agreement for roughly nine months, making no mention of the NPA in intervening correspondence and verbal communications between the victims, the FBI, and the local United States Attorney's Office. See DE 48 at 7-20. The post- agreement deception includes January 10, 2008, letters from the U.S. Attorney's Office to both Jane Doe No. 1 and Jane Doe No. 2 advising that the case "is currently under investigation" and that "it can be a lengthy process and we request your continued patience while we conduct a thorough investigation." Id. at 16. This letter (other letters like it up through at least May 2008) did not inform the victims that Epstein had months earlier already entered into a non-prosecution agreement regarding the crimes committed against them, a fact that Epstein 2 The charges were solicitation of prostitution and procurement of minors to engage in prostitution, in violation of Fla. Stat. §§796.07 and 796.03. 2 EFTA01071971 Case: 13-12923 Date Filed: 08/30/2013 Page: 12 of 61 concedes. See Appellant's (Appt's) Br. at 2 ("In September, 2007, . . . Jeffrey Epstein entered into a non-prosecution agreement with the Government."). In addition, the U.S. Attorney's Office sent a letter to the victims' counsel in June, 2008, asking them to submit a letter expressing on why federal charges should be filed against Epstein — without disclosing that the U.S. Attorney's Office had already entered into the NPA blocking the filing of such charges. This post-agreement deception was done specifically at the behest of Epstein. The victims have specifically alleged that the U.S. Attorney's Office — pushed by Epstein — wanted the non-prosecution agreement kept from public view because of the intense public criticism that would have resulted from allowing a politically -connected billionaire who had sexually abused more than 30 minor girls to escape from federal prosecution with only a county court jail sentence. DE 48 at 11. The victims have also alleged that the Office wanted the agreement concealed at this time because of the possibility that the victims could have objected to the agreement in court and perhaps convinced the judge reviewing the agreement not to accept it. Id. It is undisputed that extensive negotiations took place between Epstein and prosecutors regarding crime victim notifications — negotiations that lead to the Government not providing notifications to Jane Doe No. 1 and Jane Doe No. 2. Id. at 13-14; see also DE 225-1 at 50. The Government has further admitted that its negotiations with 3 EFTA01071972 Case: 13-12923 Date Filed: 08/30/2013 Page: 13 of 61 defense counsel regarding victim notifications was not standard practice. DE 225-1 at 50. Ultimately, on June 27, 2008, the Assistant United States Attorney assigned to the Epstein case contacted victims' counsel to advise that Epstein was scheduled to plead guilty to certain state court charges on June 30, 2008, again without mentioning that the anticipated plea in the state court was the result of the pre-existing agreement with the federal authorities. DE 48 at 19-20. On June 30, 2008, Epstein pled guilty to the state law charges. Jane Doe No. 1 and Jane Doe No. 2 did not attend that proceeding because they did not know about the existence of the NPA; nor did they know that this guilty plea would block the filing of federal charges for Epstein's crimes against them. Id. at 19. On July 3, 2008, victims' counsel sent a letter to the U.S. Attorney's Office advising that Jane Doe No. 1 wished to see federal charges brought against Epstein. Of course, when counsel drafted that letter, he did not know that Epstein had entered into a non-prosecution agreement barring such charges ten months earlier. Id. at 20. Procedural History Surrounding the Victims' CVRA Petition The victims' counsel began to hear rumors that Epstein was working out some sort of an arrangement with the U.S. Attorney's Office, an arrangement that 4 EFTA01071973 Case: 13-12923 Date Filed: 08/30/2013 Page: 14 of 61 was not be disclosed to the victims. Accordingly, on July 7, 2008, Jane Doe No. 1 filed an "emergency" petition under the Crime Victims' Rights Act, 18 U.S.C. § 3771, contending that Epstein was currently involved in plea negotiations with the U.S. Attorney's Office which "may likely result in a disposition of the charges in the next several days." CVRA Petition, DE 1 at 3. Arguing that they had been wrongfully excluded from those discussions, Jane Doe No. 1 asserted a violation of her CVRA rights to confer with federal prosecutors; to be treated with fairness; to receive timely notice of relevant court proceedings and to receive information about her right to restitution. Id. (citing 18 U.S.C. § 3771(a)). On July 9, 2008, the government filed its response, disclaiming application of the CVRA to pre-indictment negotiations with prospective defendants. Alternatively, the government contended it did use its "best efforts" to comply with the CVRA's requirements in its dealings with Jane Doe No. 1. DE 13. On July 11, 2008, the District Court held a hearing on the initial petition. D E 1 5. During the course of that hearing, the Court allowed Jane Doe No. 2 to be added as an additional victim. The Government acknowledged that both Jane Doe No. 1 and Jane Doe No. 2 met the CVRA's definition of "crime victims." During that hearing, for the first time victims' counsel began to learn that 5 EFTA01071974 Case: 13-12923 Date Filed: 08/30/2013 Page: 15 of 61 the Government and Epstein had concluded a NPA months earlier. See DE 15 at 24. The District Court then inquired, in view of the fact that the agreement was at least nine months old, whether the proceedings could still be regarded as an emergency. Having just learned that the NPA was executed months earlier, victim's counsel agreed that he could see no reason why the matter needed to be handled on an emergency basis. DE 15 at 25. The District Court indicated that the case would require some factual development, and the Government and victims' counsel agreed to reach a stipulated set of facts. Later, on August 21, 2008, the District Court provided a copy of the NPA to the victims. DE 26. Over the following months, the victims attempted (unsuccessfully) to negotiate an agreed statement of facts with the Government about how the NPA was negotiated without providing them an opportunity to confer regarding it. They also pursued collateral civil claims against Epstein, during which they also learned facts relevant to their CVRA suit. For example, Epstein produced to the victims' counsel significant parts of the correspondence concerning the NPA. The victims ultimately successfully settled their civil cases with Epstein. The victims, however, were unsuccessful in reaching any agreement with the Government regarding the CVRA case. Because the Government refused to reach any stipulated set of facts, on March 21, 2011, the victims filed a Motion for 6 EFTA01071975 Case: 13-12923 Date Filed: 08/30/2013 Page: 16 of 61 Finding of Violations of the CVRA and a supporting statement of facts. DE 48. They also filed a motion to use the correspondence that they had previously received from Epstein in the civil case in their CVRA case. DE 51. Procedural History Regarding Releasing the Correspondence On April 7, 2011, two of Epstein's numerous criminal defense attorneys — appellants Roy Black and Martin Weinberg — filed a motion for limited intervention in the case, arguing that their right to confidentiality in the correspondence would be violated if the victims' were allowed to use the correspondence. DE 56. Jeffrey Epstein also later filed his own motion to intervene to object to release of the correspondence. DE 93. Later, Epstein and his attorneys filed a motion for protective order, asking the Court to bar release of the correspondence. DE 160. At no point, however, did Epstein or his attorneys provide any affidavits or other factual information establishing that the correspondence was confidential. Nor did they provide a privilege log or other description of the materials in question. While these intervention motions were pending, on September 26, 2011, the District Court entered its order partially granting the victims' motion for a finding of violations of the CVRA, recognizing that the CVRA can apply before formal charges are filed against an accused. DE 99. The Court, however, denied the victims' motion to have their facts accepted, instead deferring ruling on the 7 EFTA01071976 Case: 13-12923 Date Filed: 08/30/2013 Page: 17 of 61 merits of the victims' claims pending development of a full factual record. The Court also authorized the victims to conduct limited discovery. DE 99 at 11. The victims quickly requested discovery from the Government, including correspondence between the Government and Epstein's attorneys regarding the non-prosecution agreement. On November 8, 2011, the day on which the Government was due to produce discovery, it instead moved to dismiss the entire CVRA proceeding for alleged lack of subject matter jurisdiction (DE 119), and successfully sought a stay of discovery (DE 121, 123). The victims filed a response. DE 127. On March 29, 2012, the district court turned to the motions to intervene, granting both Epstein's motion to intervene (DE 159) and his attorneys' motion to intervene (DE 158). The Court emphasized, however, that the question of the merits of the intervenors' objections remained to be determined. After additional proceedings, on June 18, 2013, the district court denied Epstein's efforts to bar release of the plea bargain correspondence. DE 188. The District Court began by noting that the same arguments that Epstein was raising had previously been rejected in one of the victims' parallel federal civil lawsuits, and it saw "no reason to revisit that ruling here." Id. at 3-4. The District Court then rejected Epstein's argument that the correspondence was protected under Fed. R. Evid. 410, because that Rule by its own terms does not apply in situations where a 8 EFTA01071977 Case: 13-12923 Date Filed: 08/30/2013 Page: 18 of 61 defendant later pleads guilty. The District Court next rejected Epstein's argument that it should invent a new "plea negotiations" privilege that would apply to the correspondence, explaining that "Congress has already addressed the competing policy interests raised by plea discussion evidence with the passage of the plea- statement rules found at Fed. R. Crim. P. 11(0 and Fed. R. Evid. 410, which generally prohibits admission at trial of a defendant's statements made during plea discussions, without carving out any special privilege relating to plea discussion materials. Considering the Congressional forbearance on this issue — and the presumptively public nature of plea agreements in this District —, this court declines the intervenors' invitation to expand Rule 410 by crafting a federal common law privilege for plea discussions." DE 188 at 7-8. The next day, the District Court entered a detailed written opinion denying the Government's motion to dismiss. DE 189. After carefully reviewing the CVRA's remedial provisions, the Court explained that "the CVRA is properly interpreted to authorize the rescission or 're-opening' of a prosecutorial agreement — including a non-prosecution agreement — reached in violation of the prosecutor's conferral obligations under the statute." DE 189 at 7. In light of this conclusion, the District Court explained that it was then "obligated to decide whether, as crime victims, petitioners have asserted valid reasons why the court should vacate or re- open the non-prosecution agreement reached between Epstein and the [U.S. 9 EFTA01071978 Case: 13-12923 Date Filed: 08/30/2013 Page: 19 of 61 Attorney's Office]. Whether the evidentiary proofs will entitle them to that relief is a question properly reserved for determination upon a fully developed evidentiary record." DE 189 at 11-12. The Court then ordered the Government to begin to produce the requested discovery. DE 190. On June 27, 2013, Epstein and his attorneys filed a notice of appeal from the District Court's denial of efforts of block release of the plea bargain correspondence. DE's 194-96. Epstein also filed for a stay pending appeal (DE 193), and the victims filed a response in opposition (DE 198). The district court denied the motion to stay, explaining: In this case, intervenors have neither demonstrated a probable likelihood of success on the merits on appeal, see e.g. In re MSTG, Inc., 675 F.3d 1337 (7th Cir. 2012) (rejecting request for recognition of new privilege for settlement discussions; finding need for confidence and trust alone insufficient reason to create a new privilege, and noting that Congress, in enacting Fed. R. Civ. Evid. 408, governing admissibility of statements made during "compromise negotiations, " did not take additional step of protecting settlement negotiations from discovery); In re Qwest Communications International, Inc., 450 F.3d 1179 (10th Cir. 2006) (noting circuit courts' near unanimous rejection of selective waiver concept as applied to attorney-client and work-product privileges), nor that the balance of equities weighs heavily in favor of granting a stay. DE 206 at 2-3. E STANDARD OF REVIEW 1. The victims first present the issue that Epstein has failed to develop a factual record to support his claim that the correspondence in question is 10 EFTA01071979 Case: 13-12923 Date Filed: 08/30/2013 Page: 20 of 61 confidential. This issue is a purely factual one, which this Court would review by giving due deference issue to the District Court in managing discovery matters. World Holdings, LLC v. Federal Republic of Germany, 701 F.3d 641, 649 (1 1th Cir. 2012). 2. The District Court rejected Epstein's claim that correspondence by his attorneys was protected from discovery by Rule 410 for two reasons: first, because it was not general discussions of leniency and statements made in the hope of avoiding a federal indictment rather than plea negotiations; and, second, that it involved negotiations for charges to which Epstein ultimately plead guilty. These are both factual findings, for which review is limited to determining whether the district court "had an adequate factual basis for the decision it rendered" and whether the decision was "clearly erroneous." Miccosukee Tribe of Indians of Florida v. United States, 516 F.3d 1235, 1244 (11th Cir. 2008). 3. Epstein asks this Court to overturn the District Court's decision not to recognize a new privilege for plea bargaining. This Court has held that "a new privilege should only be recognized where there is a `compelling justification." International Horizons, Inc. v. The Committee of Unsecured Creditors, 689 F.2d 996, 1004 (11th Cir.1982) (internal quotation omitted). The issue is thus whether the District Court erred in finding no such compelling justification. 11 EFTA01071980 Case: 13-12923 Date Filed: 08/30/2013 Page: 21 of 61 SUMMARY OF THE ARGUMENT Appellants Jeffrey Epstein and his attorneys argue that they have some sort of interest in the confidentiality of correspondence that they sent to government prosecutors — prosecutors who were attempting convict their client of sex offenses. The district court properly rejected their argument and this Court should affirm the decision below for three reasons. 1. Epstein never developed any evidentiary record in the district court that the correspondence in question was confidential. Accordingly, he has simply failed to establish the required factual record to permit him to challenge the District Court's conclusions. Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (noting privilege holder not "excused from meeting [his] burden of proving the communication confidential and within the [applicable] privilege"). 2. Rule 410 of the Federal Rules of Evidence does not apply to bar discovery of the correspondence, because (a) the Rule does not apply where a criminal defendant pleads guilty; (b) the District Court's factual finding that the correspondence was not primarily plea negotiations was not clearly erroneous; (c) entirely apart from whether they can use the correspondence against Epstein, the victims can discover the correspondence to use against the Government; (d) Rule 410 does not, in any event, even apply to the early discovery phase of litigation; (e) 12 EFTA01071981 Case: 13-12923 Date Filed: 08/30/2013 Page: 22 of 61 no work product privilege exists over correspondence that was exchanged by Epstein with his adversaries. 3. This Court should not create a new privilege for plea bargaining in this case, because Rule 410 provides sufficient protection for such negotiations and the Court should not undermine the Crime Victims' Rights Act. This Court should also dismiss Epstein's appeal because it lacks jurisdiction over an interlocutory appeal of a discovery dispute. ARGUMENT In the District Court, the victims have advanced detailed allegations that Epstein and the Government agreed to a non-prosecution agreement and then further agreed to conceal it from the victims for many months. The District Court has ordered the Government to provide to the victims correspondence between Epstein and the Government that will shed light on these allegations. In his brief to this Court, Epstein does not contest the merits of the victims' allegations. Instead, he argues that the District Court's action was improper because of alleged confidentiality of the correspondence, either under Fed. R. Evid. 410 or a "common law" privilege. Indeed, Epstein goes so far as to argue that the District Court's decision somehow "dramatically reshapes the landscape of criminal settlement negotiations" (Appt's Br. at 10). Epstein thus stakes out the sweeping position that prosecutors and defense attorneys are free to bargain away 13 EFTA01071982 Case: 13-12923 Date Filed: 08/30/2013 Page: 23 of 61 criminal charges in secrecy without any consideration of the interests of crime victims, or the public for that matter. If such a landscape ever existed, it exists no more. In the Crime Victims' Rights Act, Pub. L. 108-405, Title I, § 102(a), 118 Stat. 2261 (2004), Congress made clear that victims are entitled to information about the handling of the prosecution of crimes committed against them. As one circuit has observed, "The criminal justice system has long functioned on the assumption that crime victims should behave like good Victorian children — seen but not heard. The CVRA sought to change this by making victims independent participants in the criminal justice process." Kenna, 435 F.3d 1011, 1013 (9th Cir. 2006). To that end, the CVRA guarantees crime victims a series of rights, including the right "to confer with the attorney for the Government in the case." 18 U.S.C. § 3771(a)(5). Congress was concerned that crime victims "were kept in the dark by . . . a court system that simply did not have a place for them." 150 CONG. REc. S4261 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). Congress gave victims "the simple right to know what is going on .. .." Id. The District Court below properly recognized that the victims have advanced serious allegations about deliberate violations of the CVRA. To develop a record about exactly what happened during the federal investigation of Epstein's crimes against them, the District Court has ordered the Government to provide to 14 EFTA01071983 Case: 13-12923 Date Filed: 08/30/2013 Page: 24 of 61 the victims certain correspondence related to the Epstein prosecution. In doing so, the District Court properly rejected Epstein's claim that information he willingly provided to prosecutors is somehow blocked from discovery by Fed. R. Evid. 410. Not only has Epstein failed to provide factual support for his claims, but the Rule is obviously inapplicable. As the District Court properly found, the Rule only applies to defendants who have not pled guilty, not those (like Epstein) who have pled. Moreover, Epstein cannot invoke the Rule to block the victims efforts to discovery materials from the Government; the Rule has no application to discovery proceedings and no application to efforts to obtain materials for use against someone other than the defendant. I. EPSTEIN HAS FAILED TO DEVELOP AN EVIDENTIARY RECORD IN THE DISTRICT COURT THAT HE HAS ANY INTEREST IN THE CONFIDENTIALITY OF THE CORRESPONDENCE. In the District Court, Epstein made generalized allegations that he would be harmed if the plea bargain correspondence were to be provided to the victims. But he never offered any facts surrounding the alleged confidentiality of the correspondence, much less facts showing how he would be injured if the victims reviewed that correspondence. Accordingly, this Court should reject his appeal for the simple reason that the factual predicate for all of his arguments is lacking. The ordinary procedure for establishing privilege is to provide not only a privilege log, but more important, an affidavit regarding the confidential nature of 15 EFTA01071984 Case: 13-12923 Date Filed: 08/30/2013 Page: 25 of 61 the allegedly privileged materials. See, e.g., Miccosukee Tribe of Indians of Florida v. United States, 516 F.3d 1235, 1265 (11th Cir. 2008) (noting affidavits gave the distict court "an adequate basis to determine the privileges asserted . . . ."). Here Epstein has failed to provide the required privilege log under the Local Rules of the District Court. See Local Rule 26.1(g), S.D. Florida. But more broadly, he has not provided any factual support (i.e., affidavits or similar evidence) from which this Court could conclude that he will be injured by the release of the correspondence. Epstein's failure to provide such evidentiary materials is not merely a procedural defect, but apparently a deliberate ploy. The victims have alleged (with evidentiary support) that Epstein was well aware that the CVRA required prosecutors to confer with victims and that he pressured the prosecutors into violating their CVRA obligations. See, e.g., DE 48 at 12-15. For Epstein to contest this allegation, he would have to provide affidavits (from both his attorneys and him) that he believed that the prosecutors would keep everything that they discussed during plea bargaining secret from the victims without any urging from Epstein. Such affidavits would be in contradiction with the limited factual record that exists in this case at this point, which is presumably why Epstein has not provided any factual record about the confidentiality of the materials at issue. But regardless of the reasons for Epstein's failure to build a factual record, the simple 16 EFTA01071985 Case: 13-12923 Date Filed: 08/30/2013 Page: 26 of 61 fact at this point is that he has failed to create the necessary factual support to carry his burden of proof on privilege issues. See Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (noting privilege holder not "excused from meeting [his] burden of proving the communication confidential and within the [applicable] privilege"). 3 Epstein may argue that he contended below that the documents were privileged. But simply because he made an argument below does not mean that he has provided an appropriate evidentiary basis for that argument. The District Court record does not contain even the rudimentary elements that would allow this Court to make an informed assessment of Epstein's claim: How many documents are at issue? Who created the documents? Who looked at the allegedly "confidential" documents? Do these documents actually involve plea negotiations? Did anyone expect that the documents would be maintained as "confidential"? These are all facts that the Court would need to have before it to allow Epstein to get to first base with his arguments — and these are all facts that are entirely absent from the record. In the District Court, the Government specifically warned Epstein that he would need to build a record to support his arguments: 3 Epstein's brief to this Court does now contain several quotations from the oral arguments of his attorney's below. See, e.g., Appt's Br. at 19. The arguments do not provide proof of the factual propositions that would be required to sustain his privilege claims. And, more fundamentally, arguments are not evidence. 17 EFTA01071986 Case: 13-12923 Date Filed: 08/30/2013 Page: 27 of 61 However, upon intervention, Movant Epstein will have to meet his burden of establishing that he was in fact represented by specific attorneys, and that they had privileged communications in the course of that attorney-client relationship that have been or are at the risk of, unauthorized disclosure. Movant Epstein bears the burden of establishing that the communications he seeks to withhold from disclosure fall within the attorney-client or other privilege. "In meeting this burden, each element of the privilege must be affirmatively demonstrated, and the party claiming privilege must provide the court with evidence that demonstrates the existence of the privilege, which often is accomplished by affidavit." DE 98 at 3-4 (emphasis added) (quoting El-Ad Residences at Mirarmar Condo. Ass'n, Inc. v. Mt. Hawley Ins. Co., 716 F. Supp. 2d 1257, 1262 (S.D. Fla. 2010)). Rather than heed that specific warning from the Government that he needed to provide "evidence that demonstrates the existence of the privilege," Epstein decided to provide nothing at al1.4 The victims, too, specifically argued to the District Court that, for example, "Epstein must present evidence that he will be injured if the victims read the correspondence." DE 98 at 11 (emphasis added). As with the Government's warning, Epstein elected not to heed the warning given by the victims. In sum, nothing exists in the record that would allow Epstein to carry his burden of proof that the correspondence was confidential. That failure is fatal to 4 At various points in his brief, Epstein claims that the Government supports his appeal. But the Government has not chosen to join this appeal and, to the contrary, has indicated to the District Court that is has collected all of the materials at issue and stands ready to deliver them to victims as soon as this Court permits it. See, e.g., DE 216-1 at 9 (noting correspondence with Epstein's defense counsel that will be produced to opposing counsel upon lifting of stay). 18 EFTA01071987 Case: 13-12923 Date Filed: 08/30/2013 Page: 28 of 61 appeal. See, e.g., In re Subpoena Duces Tecum Issued to Commodity Futures Trading Com'n, 439 F.3d 740, 754 (D.C. Cir. 2006) (rejecting privilege claim where appellant "failed to meet its burden of demonstrating that the disputed subpoenaed documents were created for the purpose of settlement discussions and therefore would merit protection under any federal settlement privilege . ..."). IL THE CORRESPONDENCE BETWEEN THE GOVERNMENT AND EPSTEIN IS NOT PROTECTED FROM DISCOVERY BY FEDERAL RULE OF EVIDENCE 410 OR BY THE WORK PRODUCT DOCTRINE. Epstein's lead argument is that the correspondence is protected from discovery by Federal Rule of Evidence 410 and/or the work product doctrine. Appt's Br. at 14-24. He is simply incorrect, as no protection exists for correspondence he voluntarily sent to federal prosecutors. A. RULE 410 DOES NOT APPLY IN THIS CASE BECAUSE THE PLEA DISCUSSIONS LEAD TO A GUILTY PLEA. Rule 410 is fundamentally inapplicable here because it is designed to protect defendants who are cloaked with a presumption of innocence, not those (like convicted sex offender Epstein) who have plead guilty to a crime. Because "Rule 410 is an exception to the general principle that all relevant evidence is admissible at trial, see Fed.R.Evid. 402, its limitations are not to be read broadly." United States v. Barrow, 400 F.3d 109, 116 (2d Cir. 2005). Here Epstein pled guilty to 19 EFTA01071988 Case: 13-12923 Date Filed: 08/30/2013 Page: 29 of 61 state sex offenses as part of his far-ranging plea discussions with federal prosecutors, so the rule does not apply. While Epstein repeatedly argues that the correspondence falls within the "heartland" of Rule 410 (Appt's Br. at 7), he never argues that it falls within the text of the Rule. Rule 410 provides in its entirety: Rule 410. Pleas, Plea Discussions, and Related Statements (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4); (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present. Although Epstein has not made a factual record about what the correspondence involves (see Part I, supra), he appears to argue that the correspondence falls within Rule 410(4), italicized above. But the plain language of that provision is narrowly written to cover only a "statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of 20 EFTA01071989 Case: 13-12923 Date Filed: 08/30/2013 Page: 30 of 61 guilty." Fed. R. Evid. 410(4) (emphasis added). Obviously, a prerequisite to applying the rule is a case where no plea of guilty "resulted" from the discussions. See, e.g., United States v. Paden, 908 F.2d 1229, 1235 (5th Cir. 1990) (statements made during negotiations that resulted in a final plea of guilty not protected under Rule 410), cert. denied, 498 U.S. 1039 (1991); United States v. Ruhkowsi, 814 F.2d 594, 596 (11th Cir. 1987) (discussing application of the rule in situations where "plea negotiations . .. broke down" and case went to trial).5 Here, although Epstein evades this central point in his brief, his plea discussions undeniably did result in a plea of guilty. On this point, the District Court made a specific finding of fact: "[T]he communications between Epstein's counsel and federal prosecutors at issue here ultimately did result in entry of a plea 5 Cases such as these also make clear that Epstein's protestations that the District Court's decision to release plea discussion is somehow unprecedented, see, e.g., Appt's Br. at 10, are simply untrue. Courts sometimes find Rule 410 applies and sometimes that it does not. In fact, in earlier civil litigation against Epstein, the district court ordered this correspondence produced to one of Epstein's sexual assault victims, rejecting his Rule 410 argument. DE 226, Jane Doe #2 v. Jeffrey Epstein, No. 08-cv-80893-MARRA (S.D. Fla. Jan.5, 2011). Like that decision, the decision on appeal in this case is simply a routine discovery determination that the correspondence at issue falls outside the protections of Rule 410. Moreover, courts routinely override even opinion work product claims in situations where the attorney's conduct is at issue in the case. See, e.g., In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981); Charlotte Motor Speedway, Inc. v. International Ins. Co., 125 F.R.D. 127, 130 (M.D.N.C. 1989). Of course, in this case the conduct prosecutors and Epstein in reaching the secret non-prosecution agreement is the central element of the case. Indeed, the only thing that is unprecedented about this case is the fact that Epstein and prosecutors choose to negotiate about how to keep crime victims from learning what was happening rather than to comply with the Crime Victims' Rights Act. 21 EFTA01071990 Case: 13-12923 Date Filed: 08/30/2013 Page: 31 of 61 of guilty by Epstein — to specific state charges — thereby removing the statements from the narrow orbit of `statement[s] made during plea discussions . . . if the discussions did not result in a guilty plea . . . " which are inadmissible in proceedings against the defendant making them under Rule 410." DE 188 at 4-5 (emphasis in original). That finding of fact can be overturned only if it is clearly erroneous. It is not. Again, while Epstein bears the burden of proof on his privilege claim, he has failed to develop any factual record in support of his claim. See Part I, supra. More specifically, he cannot deny that the non-prosecution agreement that is at the heart of this case specifically includes a provision for Epstein to plead guilty to two state offenses. The NPA recites that "Epstein seeks to resolve globally his state and federal criminal liability and Epstein understands and acknowledges that, in exchange for the benefits provided by this agreement, he agrees to comply with its terms, including undertaking certain actions with the State Attorney's Office." NPA at 2 (emphasis added).6 The NPA goes on to specifically provide that, in exchange for avoiding federal prosecution, Epstein will plead guilty to two state offenses: Epstein shall plead guilty . . . to the Indictment as currently pending against him in the 15th Judicial Circuit in and for Palm Beach County (Case No. 2006-cf-009495AXXXMB) charging one (1) count of solicitation of prostitution, in violation of Fl. Stat. § 796.07. In 6 For the convenience of the Court, a copy of the NPA is attached to this brief. 22 EFTA01071991 Case: 13-12923 Date Filed: 08/30/2013 Page: 32 of 61 addition, Epstein shall plead guilty to an Information filed by the States Attorney's Office charging Epstein with an offense that requires him to register as a sex offender, that is, the solicitation of minors to engage in prostitution, in violation of Florida Statutes Section 796.03. Id. at 3 (emphases added). And, as the District Court specifically found, Epstein ultimately did plead guilty to those two Florida offenses — and did so pursuant to the "global" agreement as a result of his plea discussions. DE 188 at 4. While Epstein does not discuss the specific linkage in the NPA between the his non-prosecution for federal offenses in exchange for pleading guilty to two state charges, he does contend that Rule 410 is limited to guilty pleas to federal offenses. The plain language of Rule 410(4) does not contain any such limitation, narrowly extending protection only to negotiations that "did not result in a guilty plea" without requiring that that plea be to a federal charge.' And such a limitation of the rule to guilty pleas to federal charges only would be extremely unwieldy, since many criminal cases now involve discussions that span multiple jurisdictions 'Epstein perversely flips around this absence of a limitation, contending that if Congress had intended to cover situations where defendants pled guilty to state charges, it needed to say so. Appt's Br. at 26. But Congress simply used the plain term "guilty plea" rather than the more cumbersome formulation "guilty plea to a federal, state, or local offense." In the same sentence, Congress also used the broad formulation "prosecuting authority" rather than a narrower, federal formulation such "United States Attorney." Fed. R. Evid. 410(4). Finally, in another part of Rule 410, Congress did see fit to itemize both state and federal proceedings. Fed. R. Evid. 410(3). The fact that it chose a broader formulation here makes clear its intention to cover both state and federal pleas in Rule 410(4), as the caselaw holds. 23 EFTA01071992 Case: 13-12923 Date Filed: 08/30/2013 Page: 33 of 61 — which is why defendants, such as Epstein, frequently seek a "global" resolution of their criminal liability. In any event, case law makes quite clear that Rule 410 draws no distinction between federal pleas and state pleas. See, e.g., United States v. Chapman, 954 F.2d 1352, 1360 (7th Cir. 1992) (applying rule to discussions over "withdrawn state plea"); United States v. Kerik, 531 F.Supp.2d 610 (S.D.N.Y. 2008) ("Rule 410 applies in federal proceedings to statements made in connection with prior state pleas"); see also United States v. Holmes, 794 F.2d 345, 349 (8th Cir.1986) (permitting the admission of a guilty plea from state court in a federal proceeding). The only substantial argument that Epstein makes is that the "substantive settlement discussions thus revolved around [federal] offenses to which Epstein did not ultimately plead guilty . . . ." Appt's Br. at 27. Of course, this is a factual argument about the nature of the discussions — a factual argument that lacks any record support. Epstein has not shown that the District Court was clearly erroneous in concluding that correspondence involved global plea discussions that "revolved around" not merely Epstein's non-prosecution for federal charges but also, in exchange, his guilty plea to state charges. 24 EFTA01071993 Case: 13-12923 Date Filed: 08/30/2013 Page: 34 of 61 B. THE DISTRICT COURT'S FACTUAL FINDING THAT SIGNIFICANT PARTS OF THE CORRESPONDENCE CONCERNED SUBJECTS OTHER THAN PLEA NEGOTIATIONS IS NOT CLEARLY ERRONEOUS. As a second reason for denying Epstein's motion to bar release of the correspondence, the District Court made a specific factual finding that significant parts of the correspondence did not involve "plea discussions" protected under Rule 410 but rather general discussions of leniency. Epstein has not shown — and cannot show — that this factual finding is clearly erroneous. As one reason for finding the correspondence not covered by Rule 410, the District Court noted that "[a]s a threshold matter, `statement[]s during plea discussions' protected under Fed. R. Evid. 410 do not include general discussions of leniency and statements made in the hope of avoiding a federal indictment — arguably the content of the correspondence at issue here." DE 188 at 4. For support, the District Court cited the relevant case law from this Court (as well as from other Courts of Appeals). See DE 188 at 4 (citing United States v. Merrill, 685 F.3d 1002 (11th Cir. 2012) (statements made to AUSA during meetings were not statements made during plea negotiations under Rule 410, where there were no pending charges against defendant when discussions occurred; general discussion of leniency did not transform meeting into plea negotiations)); see also DE 188 at 4 (citing United States v. Edebnann, 458 F.3d 791, 804-06 (8th Cir. 2006); United States v. Hare, 49 F.3d 447, 450 (8th Cir. 1995). This is a factual finding by the 25 EFTA01071994 Case: 13-12923 Date Filed: 08/30/2013 Page: 35 of 61 District Court, based on its familiarity with the correspondence. The Court reviews such a finding only to determine whether it is clearly erroneous. See In re Grand Jury Proceedings, No. 4-10, 707 F.3d 1262, 1266 (11th Cir. 2013) (fac