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irreparable harm to Mr. Epstein under the circumstances. 
In essence, we're left with a catch 22 in defending 
the civil cases. We have a mandate to take no action, to take 
any action which may be deemed to be a violation of the NPA, 
either in the past or in the future, which would in any way 
risk Mr. Epstein being indicted by the United States. 
He has the clear risk of an indictment based upon the 
papers that the Government filed. It's real, it's not remote, 
and it's not speculative. It chills the action of the defense 
in this instance of both Mr. Epstein and his attorneys in 
trying to defend these cases and decide under the circumstances 
can we do this, can we take this position with regard to 
depositions, can we take this legal position with regard to 
motions to dismiss, with regard to responses, with regard to 
replies? 
And we send out paper discovery. Is this in some way 
if we contact someone who may be an associate of these 
individuals as part of our investigation, is that potentially 
in any way a violation of the NPA? Again, we don't think so. 
And, obviously, again, my direction has been from my 
client: Don't take any action that would result in me being 
indicted under the NPA. Well, that's great. But, generally, 
civil lawyers or civil lawyers in defending a personal injury 
case or a tort case, which is exactly what these are, and from 
a practical standpoint, we use various tools to do discovery. 
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1 They're standard. They're specific. They're very temporary. 
2 Very typical. 
3 
But in this instance, as the Court knows, things are 
4 not typical with regard to this case in any way, shape or form. 
5 we can't even serve subpoenaes, there's objections and there's 
6 -- we can't even serve objections to third parties so we can 
7 obtain documents unless we have to filter it through the 
8 plaintiffs' attorneys. They won't allow us to use their 
9 clients' names, even in a subpoena that would never be filed in 
10 the court. 
11 
How do we do a deposition of a third party? We wanted 
12 to take the deposition of Jane Doe 4. Well, who is she? Well, 
13 we can't tell you that. Well, who's the defendant? Well, we 
14 can't tell you that because nobody wants anybody to know 
15 anything about the case. They want to present it strictly 
16 through rose-colored glasses. 
17 
And in this particular instance, we simply can't 
18 defend this case or take certain action with the spector 
19 hanging over us that, in fact, the Government may deem it to be 
20 a violation of the NPA, because very clearly in their response 
21 papers, they don't say. They say we don't take the position, 
22 and then they take a substantial position is we think there's 
23 not all that substantial factors that would entitle him to a 
24 stay. 
25 
Except for the one major issue which the Court posed 
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in the question is, is can he defend these cases? That's what 
I really want to know. Can he defend these cases and, in 
essence, what he has done in the past or what his defense team 
has done in the past and what they're going to do in the 
future, can you give him, Epstein, assurances that the 
Government under this situation, whatever he does, based on 
advice of counsel, that that cannot be a willful violation of 
the NPA, which they can -- they, the U.S. -- can then turn 
around and say that's a violation of the agreement and, 
therefore, we're going to go proceed to indict you under the 
circumstances. 
Our position is, Your Honor, is that the U.S. has now 
cavalierly suggested that, as they did in picking up on the 
court's docket entry or prior order, is, look, compliance with 
the NPA is solely up to Mr. Epstein. In this type of balance 
of equities, it doesn't speak in favor of a stay. 
Well, that's great. And maybe that was the position 
back in '08, on August 5th of '08, when the issue came up in 
front of the Court with regard to the initial stay. 
But the Government's papers under these circumstances 
suggested a very different set of circumstances. Their own 
unilateral, which is the issue that we argued in the motion for 
stay, is that the Government's position is that we can 
unilaterally indict this man if we think he's breached the NPA. 
We don't think that's right, but we have no buffer 
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1 between us and the Government. They'll say, and as the Court 
2 knows, the Government has substantial power. The Government 
3 does what it wants. Most of the time hopefully they're right. 
4 Sometimes they make mistakes. 
5 
But in this particular instance, my client has rights. 
6 We think that there's notice provisions, we think there's cure 
7 provisions under the NPA. That's not what their paper says 
8 under the circumstances. 
9 
And what we'd like to know from the Government, and 
10 maybe the answer is basically what the Court asks is, let the 
11 Government come forward today and say, based on the knowledge 
12 that we have, or as of today's date, June 12th, 2009, we, the 
13 Government, agree that there is no set of circumstances, not 
14 that we're not aware of, but as of today's date, there is 
15 nothing that exists that would be a violation of the NPA. 
16 
THE COURT: Well, that's way beyond what I'm 
17 interested in. I don't know what Mr. Epstein may have done 
18 outside the context of defending this case that may constitute 
19 a violation. And if he has done something outside the context 
20 of defending this case that's a violation, I don't care. 
21 That's between the United States and Mr. Epstein. 
22 
I'm only concerned about whether anything he does in 
23 defending these civil actions is going to be a violation of the 
24 non-prosecution agreement. If he has done something else, it's 
25 none of my business, and I don't care, and I'm not going to 
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1 even ask the Government to give you an assurance that he hasn't 
2 done anything that might have violated the agreement up till 
3 today. I'm only interested in defending these civil actions. 
4 
MR. CRITTON: Then I would respectfully submit to the 
5 Court that the Government be asked in that limited context, are 
6 they as of today, whether there were or not, but as of today is 
7 there anything that has been done or will you take the 
8 position, the United States, that any position that Mr. Epstein 
9 has taken with regard to defending these civil cases is in any 
10 way a violation of the NPA? 
11 
THE COURT: Well, I'm not sure what they're going to 
12 say, but that might -- that cures the problem up to this point. 
13 But then we have to deal with what's going to happen from here 
14 on in. And that's another issue that we have to deal with. 
15 
So I understand your position. 
16 
But has anyone suggested to you on behalf of the 
17 United States that there is something that you've done in 
18 defending this case that they believe may or could be construed 
19 as a violation of the non-prosecution agreement? Has anyone 
20 pointed to anything that you've done? For example, the fact 
21 that you've wanted to take their -- I don't know if you've 
22 noticed depositions or not in this case, but if you've sent 
23 notice of taking deposition, if you sent requests for 
24 production of documents, if you sent interrogatories, if you 
25 issued third party subpoenas? Is anything you've done thus far 
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in the context of this case been brought to your attention as a 
potential violation? 
MR. CRITTON: I have received no notification nor am I 
aware that we've received any notification of any action that 
we have taken today. As I suggested to the Court, I don't know 
when they've done or not. And in their papers they suggested, 
well, we don't know everything that's gone on in the civil 
litigation. 
But from a practical standpoint, it was a number of 
comments that were made in their papers is, we can indict, we 
can see if there's a breach. 
Judge, I may have some --
THE COURT: Before you go on. 
MR. CRITTON: I'm sorry. 
THE COURT: You've focused a great deal on the 
Government's response to my inquiry as supporting your position 
that you're in jeopardy. But you've made the suggestion, even 
before this brief was filed, that defending the case was going 
to potentially result in an assertion or allegation that you 
breached the non-prosecution agreement. 
So what was it that caused you to make that initial 
assertion? Because that's what caught my attention, was not --
this brief that the Government has filed was in response to 
something that you filed initially in your most recent motion 
for a stay which raised the issue. 
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1 
So what was it that gave you some concern to even 
2 raise the issue that defending this case is going to constitute 
3 a breach? 
4 
MR. CRITTON: Because there are other instances where 
5 counsel other than myself, not in the civil aspects, where 
6 allegations have been made and letters have been sent by the 
7 United States suggesting that there's been a violation of the 
8 NPA. And under those circumstances, some notification was 
9 provided. 
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THE COURT: Did it have anything to do with defending 
11 the civil actions? 
12 
MR. CRITTON: It did not. 
13 
THE COURT: So then why was that issue raised by you 
14 in the first instance? 
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MR. CRITTON: Because of the prospect that the 
16 defendant could take, that the U.S. would take the position 
17 under the circumstances that a position that we took with 
18 regard to the contested litigation may well impact, that the 
19 Government may have a very different view of what the 
20 interpretation of the agreement is. 
21 
And as an example is a number of the parties, and I 
22 know the Court doesn't want to get into a discussion, the issue 
23 is, is under 2255 is that from the defendant's perspective the 
24 deal that was cut on that, it was a very specific deal. It 
25 dealt with both consensual and contested litigation. It dealt 
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1 with a secret list of individuals who we had no idea who was on 
2 the list, and a commitment that he would under certain 
3 circumstances be required to pay a minimum amount of damages, 
4 which our position is under 2255 based upon the statute that 
5 was in effect at the time, a $50,000 as to anyone who wanted --
6 who came forward who was on the list and met certain criteria. 
7 
The position that now has been asserted by a number of 
8 the plaintiffs under the circumstances, and it's been pled, and 
9 actually a number of the complainants is, is Epstein agreed, 
10 and they cite to a letter that was sent by Ms. 
from 
11 the Government, that says he has to plead guilty or he can't 
12 contest liability. That may be true under very, very limited 
13 or specific circumstances. 
14 
But what the plaintiffs have done in a number of the 
15 cases, and these are pending motions, is they've said is, well, 
16 we think C.M.A. cases is a good example, they've pled 30 
17 separate counts of 2255 alleged violations. And they're saying 
18 under the circumstances is, therefore, we have 2255 violations, 
19 there's 30 of them, so 30 times 150, or should be, or whether 
20 it's 150, that's the amount of money that we want, so maybe $15 
21 million, or whatever the number is. 
22 
Some of the other plaintiffs' lawyers have been even 
23 more creative. They've said is, well, we'll agree that it's 
24 only one cause of action but that each number of violations; 
25 that is, if 20 alleged incidents occurred, that we would 
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1 consider to be, or that we will argue are violations, then we 
2 can take 20 times the 50, or the 150, depending on which 
3 statute is applicable. 
4 
So the Government under that set of circumstance could 
5 say, and, again, this is one of the reasons that we raised it, 
6 they could say, look, our deal with you was that you couldn't 
7 contest liability, that you were waiving liability, or your 
8 ability to contest an enumerated offense under 2255. 
9 
Again, part of the deal was as to an enumerated 
10 offense. Okay. Well, what's that mean? What did he plead to? 
11 Well, he really didn't plead to anything, which is another 
12 issue associated with the 2255. But if the Government comes in 
13 and says, no, wait a minute, our position was, is that you're 
14 stuck with 2255 and the language within the NPA. And, 
15 therefore, whether it's an offense or whether it's multiple 
16 offenses or violations or each one represents an individual 
17 cause of action, if the Government takes the position that's 
18 adverse to what we think the clear reading of the agreement was 
19 under those circumstances, they could claim a violation. 
20 
And as a result -- and that's one of the reasons we 
21 put -- that was the most glaring one to us, so we raised that 
22 issue. And then when the Government's response came with 
23 regard to, is we can just proceed to indict if we think that 
24 there's been a breach of the agreement. 
25 
That puts us at substantial risk and chills our 
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1 ability to move forward. Thank you, Your Honor. 
2 
THE COURT: Thank you. Who wants to be heard from the 
3 plaintiffs first? 
4 
Is there any plaintiff's attorney who is contending 
5 that the defense of these civil actions by Mr. Epstein is going 
6 to constitute a breach of the non-prosecution agreement? 
7 
MR. JOSEFSBERG: Your Honor, this is Bob Josefsberg. 
8 May I speak? 
9 
THE COURT: Yes, sir. 
10 
MR. JOSEFSBERG: We're not quite confident that any 
11 breaches of any agreement, which were third-party 
12 beneficiaries, should be resolved by you. We're not saying it 
13 shouldn't. But we have not raised any breach of agreement. We 
14 think that is between the United States and Mr. Epstein. 
15 
What I find incredulous and disingenuous is that 
16 Mr. Epstein is saying that he wants a stay because he may be 
17 forced into taking actions in the defense of this case that 
18 would violate the agreement. 
19 
And let me make our position clear on that. If he 
20 wants to move to take depositions, interrogatories, production, 
21 and they are according to your rulings appropriate, not 
22 invasive of the privacy of someone, and they are relevant, then 
23 I don't know how those could in any way be violations of the 
24 agreement. 
25 
What I find hypocritical is that there are two parts 
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1 to the agreement that I am a beneficiary of. One of them is 
2 that he has agreed that on any action brought in the 2255, he 
3 will admit to liability. 
4 
And I received on May 26 a motion to dismiss, which 
5 we're prepared to respond to and disagree with, but totally 
6 contesting liability, saying that the statute doesn't apply 
7 because the girls are no longer minors and saying, and this is 
8 the great one, saying that the predicate of the conviction 
9 under 2255 has not been satisfied. 
10 
Now, the understanding that I have is the agreement 
11 between the Government and Mr. Epstein was that the Government 
12 desired to see these victims made whole, and wanted them to be 
13 in the same position as if Mr. Epstein had been prosecuted and 
14 pled or convicted. And they would be able to have the 
15 predicate of that criminal conviction, which just as a matter 
16 of liability would just be introduced as proof that he's done 
17 this. 
18 
They, under the agreement, are supposed to admit to 
19 liability on limited something that's under 2255. He has 
20 filed, but since there is no conviction, there can be no civil 
21 suit under 2255, with which we disagree. But it is totally in 
22 opposite of the NPA. 
23 
The second part is there are many young ladies, and 
24 this perhaps he can use this to his great advantage, who are 
25 humiliated about this entire situation. Some of them won't 
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1 come forward. 
2 
we were appointed by Judge Davis as a Special Master 
3 to represent these young ladies. And some of them don't even 
4 want to file suit. They don't even want to be known as Jane 
5 Doe 103. They don't want any of the risks for these motions 
6 that are pending. 
7 
And part of the agreement was that if we represented 
8 them and they settle, Mr. Epstein would pay our fees. And he 
9 has written us as of yesterday that he is under no obligation 
10 to pay our fees on settling cases. 
11 
Now, those two matters, I believe, may be breaches. 
12 But I am not asking this Court at this time to do anything 
13 about them. Nor am I telling the Government, I'm not running 
14 to the Government and saying indict him because I want you to 
15 pressure him to do what he agreed to. 
16 
I'm a third-party beneficiary for that agreement, and 
17 I may move to enforce certain parts of it. But as far as the 
18 issue of staying the litigation, that is the exact opposite of 
19 the intent and the letter of the NPA. The purpose of the NPA 
20 was so that these 34 young ladies, these victims who have been 
21 severely traumatized, may move on with their lives. 
22 
And to stay this action would be the exact opposite of 
23 the purpose of that agreement and would be horrible 
24 psychologically for all of my clients. 
25 
THE COURT: Mr. Josefsberg, I understand your 
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1 position. And I don't want to argue the merits of whether a 
2 stay should or should not be granted. 
3 
I'm just trying to understand what the ground rules 
4 are going to be if I grant a stay or if I deny a stay. And 
5 I've already denied a stay once. I have to decide this current 
6 motion, and I just want to know what is going to happen if I 
7 deny the stay in terms of Mr. Epstein's exposure under the 
8 non-prosecution agreement. That's my concern. 
9 
So if you're telling me that you're not going to urge 
10 the United States, on behalf of any of your clients, to take 
11 the position that he's breached the agreement because he's 
12 taking depositions, because he's pursuing discovery, because 
13 he's conducting investigations that anyone in any other type of 
14 civil litigation might conduct with respect to plaintiffs that 
15 are pursuing claims against a defendant, that those typical 
16 types of actions, in your judgment, are not breaches of the 
17 agreement and that he can go forward and defend the case as any 
18 other defendant could defend, and you're not going to run to 
19 the United States and say, hey, he's breaching the agreement by 
20 taking depositions and he's breaching the agreement by issuing 
21 subpoenas to third parties in order to gather information 
22 necessary to defend, then I don't have a problem. But if he's 
23 going to be accused of breaching the agreement because he sends 
24 out a notice of deposition of one of your clients, how is he 
25 supposed to defend the case? 
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1 
MR. JOSEFSBERG: Your Honor, you're totally correct. 
2 He can depose my client. That's not a problem. But the 
3 problem is that these are not typical clients and this is not a 
4 typical case. He has written in his pleadings that he wants to 
5 publish the names of these girls in the newspapers so that 
6 other people may come forward to discuss their sexual 
7 activities with these different plaintiffs. That's not your 
8 typical case. But are rulings that you'll make in this case, 
9 and they're not part of the NPA. 
10 
As far as my going to the Government is concerned, I 
11 find it very uncomfortable for me to use the Government to try 
12 to pursue my financial interest in litigation. And I know that 
13 Mr. Epstein and his counsel will make much ado about it. So I 
14 am not going to be running there. 
15 
However, if they start taking depositions regarding 
16 liability, I will consider that to be a breach because they're 
17 supposed to have admitted liability. 
18 
THE COURT: But, again, I don't have the agreement and 
19 I don't remember reading the agreement. But what I'm being 
20 told is the part of the agreement that admits liability is only 
21 as to a 2255 claim, and there are numerous other personal 
22 injury tort claims other than 2255 claims. 
23 
And there's a limit of damages on the 2255 claim, as I 
24 understand it, but I presume that all the plaintiffs are going 
25 to seek more than the limited or capped amount of damages in 
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1 the non-prosecution agreement as to the other claims. 
2 
And so why aren't they entitled to defend and limit 
3 the amount of damages that your client is seeking on the 
4 non-2255 tort claims? 
5 
MR. JOSEFSBERG: Your Honor, you are correct. On 
6 non-2255 tort claims, they are permitted to do the defense, 
7 whatever is appropriate. 
8 
My cases are pure 2255 on which liability under the 
9 agreement is supposed to be admitted. Now, as to the amount of 
10 damages, there are legal issues that will be before you and 
11 under the C.M.A. cases that are getting before you, as to 
12 whether it is 50 or 150. That has nothing to do with the NPA. 
13 
There are legal issues that are before you as to 
14 whether it is per statute, per count. or per incident or per 
15 plaintiff. Those have nothing to do with the NPA. There is no 
16 amount in NPA. Those will be resolved. 
17 
Anyone who has brought a case that is outside of 2255, 
18 the defense is permitted to contest liability under the NPA. 
19 That's no violation. 
20 
Under the NPA if someone brought a case under just 
21 2255, Mr. Epstein, if he is to keep his word, cannot contest 
22 liability. And there would no need to stay this. Because it 
23 is a self-fulfilling agreement. He can contest liability. And 
24 as far as the amount of damages, anyone that wants to go over 
25 the statutory minimums, of course, he can contest that in any 
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1 way that is proper under the Rules of Evidence and your 
2 rulings. The NPA has no limitation on his contesting damages 
3 above the minimum statutory amount. 
4 
The only thing that he has done is in his actions of 
5 refusing to pay for settling defendants, and in his saying that 
6 he has no liability under 2255, those appear to be contrary to 
7 what's in the NPA. 
8 
But I'm not in any position right now to claim a 
9 breach, and I don't know whether I'd be claiming a breach or 
10 enforcing it in front of you, suing him for fees, asking you to 
11 have him admit liability, or complaining to the Government. 
12 And that's why I'm not that helpful in this situation because I 
13 think it's the Government's role. 
14 
But I do not waive the right to be a third-party 
15 beneficiary because pursuant to my appointment, which was 
16 agreed to by Mr. Epstein, I and my clients have certain rights, 
17 and we want to enforce them. 
18 
But his defending this lawsuit will not in any way be 
19 a violation. His getting this lawsuit stayed would be a 
20 violation of the spirit of taking care of these girls, and 
21 there would be other issues. Like if there is a stay, Your 
22 Honor, would he be posting a bond? 
23 
THE COURT: We don't need to talk about those issues. 
24 That's not my concern. 
25 
MR. JOSEFSBERG: I agree, Your Honor, we don't. 
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1 
THE COURT: That's not my concern. So, again, I just 
2 want to make sure that if the cases go forward and if 
3 Mr. Epstein defends the case as someone ordinarily would defend 
4 a case that's being prosecuted against him or her, that that in 
5 and of itself is not going to cause him to be subject to 
6 criminal prosecution. 
7 
MR. JOSEFSBERG: I agree, Your Honor. 
THE COURT: Any other plaintiff's counsel want to 
9 chime in? 
10 
MR. WILLITS: Richard Willits on behalf of C.M.A.. I 
11 would join, to weigh in on what Mr. Josefsberg said. 
12 
MR. JOSEFSBERG: Your Honor, I could not hear. 
13 
THE COURT: We'll get him to a microphone. 
14 Mr. Willits is speaking. 
15 
MR. WILLITS: On behalf of my client, C.M.A., we join 
16 in what Mr. Josefsberg said, and we also want to point out 
17 something to the Court. 
18 
First, we want to make a representation to the Court, 
19 we have no intention of complaining to the U.S. Attorney's 
20 Office, never had that intention, don't have that intention in 
21 the future, but, of course, subject to what occurs in the 
22 future. 
23 
I want to point out to the Court that Mr. Epstein went 
24 into this situation with his eyes wide open, represented by 
25 counsel, knowing that civil suits had to be coming. If he 
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didn't know it, his lawyers knew it. 
He appears to be having second thoughts now about he 
could have negotiated this way or he could have negotiated that 
way with the U.S. Attorney's Office. And they want to impose 
their second thoughts on the innocent plaintiffs. We don't 
think that's fair. We think it's in the nature of invited 
error, if there was any error whatsoever. 
Thank you. 
THE COURT: You agree he should be able to take the 
ordinary steps that a defendant in a civil action can take and 
not be concerned about having to be prosecuted? 
MR. WILLITS: Of course. And we say the same thing 
Mr. Josefsberg said. It's all subject to your rulings and the 
direction of this Court as to what is proper and what is not 
proper. And we're prepared to abide by the rulings of this 
Court, and we have no intention of running to the State's 
Attorney. 
THE COURT: The U.S. Attorney? 
MR. WILLITS: I'm sorry. The U.S. Attorney. 
THE COURT: Mr. Garcia. 
MR. GARCIA: Thank you, Your Honor. 
If I may briefly, I think perhaps defense counsel 
forgot about this, but on pages 17 and 19 of my memorandum of 
law in opposition to the motion to dismiss, I did make 
reference to the non-prosecution agreement, and I did say that 
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Case 9:08-cv-80119-KAM 
Document 180 
Entered on FLSD Docket 06/24/2009 
Page 28 of 51 28 
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the contesting of the jurisdiction of this Court was a 
potential breach of the non-prosecution agreement. 
So my client happens to have, and they have filed with 
the Court a copy of her state court complaint, given the fact 
that the non-prosecution agreement limits the non-contesting of 
jurisdiction to claims exclusively brought under the federal 
statute. 
I'm going to go ahead and withdraw those contentions 
on pages 17 and 19 of my memo of law because it doesn't apply 
to my case. So to the extent that I raised this issue with 
defense counsel and the Court, I'm going to withdraw that 
aspect of it. 
THE COURT: Can you file something in writing on that 
point with the Court? 
MR. GARCIA: Yes. 
THE COURT: What do you say about this issue that 
we're here on today? 
MR. GARCIA: I think that the problem that I have with 
it is that this non-prosecution agreement is being used by 
defense counsel for the exact opposite purpose that it was 
intended. My perception of this thing, and I wasn't around, is 
that Mr. Epstein essentially bought his way out of a criminal 
prosecution, which is wonderful for the victims in a way, and 
wonderful for him, too. 
Now he's trying to use the non-prosecution agreement 
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Case 9:08-cv-80119-KAM 
Document 180 
Entered on FLSD Docket 06/24/2009 
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as a shield against the plaintiffs that he was supposed to make 
restitution for. 
And, certainly, he can take my client's depo. He's 
done extensive discovery in the state court case -- very 
intrusive, I might add. And we don't care, because we can win 
this case with the prosecution agreement or without the 
prosecution agreement. We are ready to go forward. 
THE COURT: You're not going to assert to the United 
States Government that what he's doing in defending the case is 
a violation for which he should be further prosecuted? 
MR. GARCIA: Absolutely not. 
THE COURT: Anyone else for the plaintiffs? 
MR. HOROWITZ: Judge, Adam Horowitz, counsel for 
plaintiffs Jane Doe 2 through 7. 
I just wanted to address a point that I think you've 
articulated it. I just want to make sure it's crystal clear, 
which is that we can't paint a broad brush for all of the 
cases. 
The provision relating to Mr. Epstein being unable to 
contest liability pertains only to those plaintiffs who have 
chosen as their sole remedy the federal statute. My clients, 
Jane Doe 2 through 7, have elected to bring additional causes 
of action, and it's for that reason we were silent when you 
said does anyone here find Mr. Epstein to be in breach of the 
non-prosecution agreement. That provision, as we understand 
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