EFTA00231917

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it wasn't like we were coming into court on 
that day and asking to seal something, so 
it would have been presumptuous of me to 
file something to request to have something 
sealed when it came up during the course of 
the proceeding, and, in fact, the committee 
notes on the rule of judicial 
administration talk about that and say 
matters come up all the time during the 
10 
course of hearings and the fact that 
11 
something is not filed in advance does not 
12 
necessarily taint the entire process, so we 
13 . 
agreed to come forward and file our motion 
14 
to seal after the fact, because we didn't 
15 
know this matter would be coming up. 
16 
But having said that, Judge, this 
17 
confidential agreement was not part of any 
18 
state plea agreement, it's not part of the 
19 
proceedings, it was ancillary to the state 
20 
proceedings and it had nothing to do with 
21 
the state proceedings. As an accommodation 
22 
to Judge Puccillo, we filed it in the court 
23 
file. Quite frankly, it's unnecessary, it 
24 
doesn't need to be there, and the simplest 
25 
approach would be to simply remove it from 
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the court file at this point. We didn't 
2 
have for it to be there. It's not part of 
3 
the plea, it's not part of the state 
4 
resolution of the case, and that would be 
5 
the simple logical approach to that. 
6 
If the Court is inclined not do that 
7 
or if the parties object to that, then I 
8 
think we move onto some other very, very 
9 
important issues in this case and for both 
10 
the intervenors in this case as well as the 
11 
Palm Beach Post motion for access to this 
12 
proceeding for really two very, very 
13 
significant reasons, they are in the wrong 
14 
place and they're attempting to march up 
15 
the wrong hill here, your Honor. 
16 
This matter needs to -- has to be 
17 
litigated in federal court before 
18 
Judge Marra who has already heard hearings 
19 
on this matter. Now, at our last 
20 
abbreviated hearing two weeks ago, I told 
21 
you for the first time that there have been 
22 
two hearings in front of Judge Marra on 
23 
this very issue, whether this 
24 
nonprosecution agreement and that's the 
25 
matter that is sealed in your court file, 
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whether this nonprosecution agreement 
2 
should be released to the plaintiffs for 
3 
their use. 
4 
Judge Marra heard two hearings on 
5 
this matter and the court has those orders. 
6 
And in the first hearing Judge Marra very, 
7 
very, carefully balanced the 
8 
confidentiality issues of the 
9 
nonprosecution agreement, the intent of the 
10 
parties as well of the rules of criminal 
11 
procedure that I will talk about in a 
12 
moment, with the plaintiff's right to know 
13 
what's going on and to have access to this 
14 
agreement. And Judge Marra crafted an 
15 
order and in the nature of a protective 
16 
order and said, plaintiffs, you can have 
17 
this nonprosecution agreement, you can use 
18 
it, you can review it, you cannot give it 
19 
to anyone else other than your clients, and 
20 
if you want to use it or you want to give 
21 
it to your clients, you need to tell them 
22 
about this order that is not to be 
23 
disclosed to anybody else. And these 
24 
plaintiffs that are sitting here will tell 
25 
you that from day one they have had this 
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nonprosecution agreement, they have it for 
their use, they know every clause that's in 
that nonprosecution agreement, and I 
suggest to the Court as to their motions 
why are we here; they have an agreement 
already. 
They went back to Judge Marra 
sometime thereafter 
expand their use of 
agreement, and they 
and asked the Court to 
the nonprosecution 
said, Judge Marra, we 
have the nonprosecution agreement but we 
would like to be able to disclose that 
agreement to other sides, and Judge Marra 
in another carefully crafted order said, 
nuh-uh, no, you have not satisfied your 
burden, you cannot disseminate this to 
anyone else, and the order that I have 
entered remains in place, but most 
significantly he said, you know what, this 
is without prejudice. 
If you have some basis, you have some 
need that you have not briefed, you have 
not litigated with me yet concerning 
dissemination of nonprosecution agreement, 
come back to me and I'll review it for you. 
SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER 
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And they have every right to do so, and 
2 
they have not done so, and it is this 
3 
motion to intervene that they filed in this 
4 
court is simply an effort to skirt and to 
S 
avoid and to go behind the order of 
6 
Judge Marra that dealt with this issue 
7 
already. 
8 
And I think just for the purpose of 
9 
our hearing, we need to have the two orders 
10 
of Judge Marra entered into the record of 
11 
this proceeding. I know I gave copies to 
12 
the Court, but I have additional copies. 
13 
MR. GOLDBERGER: Your Honor, I 
14 
believe there is no objection from either 
15 
of the parties. 
16 
THE COURT: Thank you so much. Let's 
17 
go ahead and mark these as Defendant's 
18 
Exhibits No. 1 and 2 for identification 
19 
purposes. Anybody object to me taking 
20 
judicial notice of Judge Marra's order? By 
21 
hearing no objection, I'll go ahead and 
22 
take judicial notice of it. 
23 
MR. GOLDBERGER: So, your Honor, 
24 
Judge Marra has dealt with this issue 
25 
squarely, there's a procedure in place and 
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these matters should be litigated in front 
2 
of the district court judge that has 
3 
already heard these matters. 
4 
THE COURT: Well, let's say that may 
5 
be true as it relates to these individual 
6 
plaintiffs in the federal litigation, what 
7 
about the Post's and the press's -- the 
8 
media's right to take a look at these 
9 
things? 
10 
MR. GOLDBERGER: Your Honor, and this 
11 
is the second reason why not only the 
12 
plaintiffs but the Post appear to be 
13 
marching up the wrong hill here. The Palm 
14 
Beach Post has filed a motion for access to 
15 
these documents and they certainly do have 
16 
first amendment rights and no one would 
17 
dispute that they have first amendment 
18 
rights to access to public records, 
19 
however, most significantly in this case is 
20 
that the nonprosecution agreement which we 
21 
gave the court permission to review two 
22 
weeks ago and presumably the Court has had 
23 
an opportunity to take a look at it, the 
24 
nonprosecution agreement talks about and 
25 
relates to a grand jury matter that is 
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1 
absolutely 100 percent protected from 
2 
disclosure by Federal Rule of Criminal 
3 
Procedure Six. I have a copy of that rule 
4 
for the Court. 
5 
THE COURT: Let me take a look of 
6 
that, please. 
7 
MR. GOLDBERGER: Give us one moment, 
8 
your Honor, we have it here somewhere. 
9 
MR. KUVIN: Your Honor, just briefly 
10 
while they're looking on behalf of the 
11 
plaintiff EB, I just wanted to point out on 
12 
my client motion to intervene, we are not 
13 
party to the federal action. She only has 
14 
a state court claim. She's not bound by 
15 
any federal court order, she is not with 
16 
the federal court on their claim, so as to 
17 
that issue, my client stands here 
18 
synonymous with the Post. 
19 
THE COURT: Thank you for pointing 
20 
that out to me. 
21 
MR. GOLDBERGER: We'll have it for 
22 
you in one moment, your Honor. 
23 
Your Honor, Federal Rule of Criminal 
24 
Procedure Six is a rule that deals with 
25 
grand jury proceedings, and it confers in 
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the federal system secrecy of all grand 
2 
jury matters and it's pretty clear in this 
3 
case that the nonprosecution agreement 
4 
specifically talks about a grand jury 
5 
investigation of Mr. Epstein, there's 
6 
specific reference to a grand jury 
7 
investigation in the nonprosecution 
8 
agreement. 
9 
The rule does not prevent us from 
10 
telling the Court that there was a grand 
11 
jury investigation of Mr. Epstein, but what 
12 
it prevents us from doing, what it prevents 
13 
this Court from doing, I believe, is 
14 
disclosing the content of the grand jury 
15 
investigation, and the agreement itself is 
16 
very specific as to the grand jury 
17 
investigation of Mr. Epstein. 
18 
However, all is not lost for the Palm 
19 
Beach Post and the intervenors, for that 
20 
matter. The rule has a specific procedure 
21 
that allows you to go to the district court 
22 
where the grand jury is convened, in this 
23 
case it would be in the Southern District 
24 
of Florida before Judge Marra and that is 
25 
under Rule 6E, your Honor, I think it's 6E 
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3E actually. It says: In limited 
2 
circumstances the Court may authorize 
3 
disclosure of grand jury matters under 
4 
request made in connection with the 
5 
judicial proceeding, so -- and the rule 
6 
goes onto clearly say, that request must be 
7 
filed in the district where the grand jury 
8 
is proceeding. 
9 
So the first -- you know the Palm 
10 
Beach Post may have first amendment rights 
11 
to access but those first amendment rights 
12 
cannot circumvent the federally protected 
13 
secrecy of grand jury proceedings and 
14 
that's what the Post is doing by making 
15 
this request before this Court. 
16 
This matter has been sealed for 
17 
almost a year now, 11 months and some days 
18 
and the Palm Beach Post has not filed 
19 
anything in this matter until most 
20 
recently, and their remedy is to go into 
21 
the federal court and invoke the process of 
22 
Rule Six and asked Judge Marra to make a 
23 
limited disclosure of the nonprosecution 
24 
agreement and the grand jury matters that 
25 
are contained therein. Who knows whether 
SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER 
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he will 
do it, 
but 
that's 
wh_ ere 
thi 
 
 
2 
need to be fought. 
3 
As a matter 
of 
comity, 
your 
t2
 
c=w- n 
4 
this 
Court should 
defer 
to j udge 
Ma 
sr 
a
5 
because, 
A, he has already 
ruled 
on 
t.k
-
6 
disclosure 
of the 
nonpros 
ag reement. 
7 
even more importantly, 
the 
s -upremac 
8 
requires 
you to defer 
to the 
f ede re. 
fl
r_
1. 
9 
of criminal 
procedure 
that 
say 
thee 
e 
10 
matters 
should 
be protected 
and 
sho 
Zo 
11 
be disclosed 
unless 
the 
dists
-ict 
12 
so. 
13 
If 
the Court 
is 
going 
to 
9O Il=='" 
14 
wants to go to the 
issues 
that 
wo u 1 or  -
15 
contained 
if 
it 
were not dealing 
" 
170.
16 
grand 
jury 
proceeding, 
obviously 
th 
 
 
e
17 
test 
that 
the Court 
must then 
use 
u s. 
a 
aLe 
18 
Rules of Judicial 
Administration 
ana. 
19 
says matters 
can be sealed 
but 
they 
s
 
h
20 
be sealed 
if 
there's 
a 
compel Ling 
21 
government 
interest 
or 
if 
the 
g 
22 
important 
to the 
administration
 of 
u 
s 
23 
There's 
a couple 
other 
criteria. 
but= 
24 
ones obviously 
that 
would app 1 Y in 
C._ 
Th. 
j. 
25 
case are 
the 
compelling 
government 
SUSAN WIGGINS, 
R.P.R. AND OFFICIAL COURT R
IDORTEI
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he will do it, but that's where this battle 
2 
need to be fought. 
3 
As a matter of comity, your Honor, 
4 
this Court should defer to Judge Marra 
5 
because, A, he has already ruled on the 
6 
disclosure of the nonpros agreement, but 
7 
even more importantly, the supremacy clause 
8 
requires you to defer to the federal laws 
9 
of criminal procedure that say these 
10 
matters should be protected and should not 
11 
be disclosed unless the district court says 
12 
so. 
13 
If the Court is going to go on and 
14 
wants to go to the issues that would be 
15 
contained if it were not dealing with a 
16 
grand jury proceeding, obviously there's a 
17 
test that the Court must then use under the 
18 
Rules of Judicial Administration and it 
19 
says matters can be sealed but they should 
20 
be sealed if there's a compelling 
21 
government interest or if the sealing is 
22 
important to the administration of justice. 
23 
There's a couple other criteria, but the 
24 
ones obviously that would apply in this 
25 
case are the compelling government 
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interest, and the importance to the 
2 
administration of justice. 
3 
Again, we are dealing with a secret 
4 
grand jury matter. We cannot circumvent 
5 
that secrecy by asking the Court to invoke 
6 
its unsealing power. 
7 
THE COURT: Thank you. 
8 
MR. GOLDBERGER: Thank you, your 
9 
Honor. 
10 
THE COURT: Let me go over to the 
11 
other parties and we'll get back to 
12 
Mr. Goldberger and his client. Post, who 
13 
wants to go first? 
14 
MS. SHULLMAN: Mr. Edwards. 
15 
THE COURT: Mr. Edwards. 
16 
MR. EDWARDS: Your Honor, inasmuch as 
17 
Mr. Epstein is relying on Judge Marra's 
18 
order to support the argument that the 
19 
nonprosecution agreement needs to remain 
20 
sealed, I'd like to address that if you are 
21 
inclined to be persuaded by that argument 
22 
at all. 
23 
The orders that have now been moved 
24 
into evidence are in case No. 80736, and 
25 
just to put that order in context in 
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actuality, the order says -- specifically 
2 
puts it back on this Court and confers 
3 
authority on this Court over this 
4 
particular document, when in the second 
5 
page of the February 12th, 2009 order, it's 
6 
misdated 2009 but it's a 2009 order, and 
7 
the last two sentences read: If and when 
8 
petitioners have a specific tangible need 
9 
to be relieved of the restrictions, they 
10 
should file an appropriate motion, which we 
11 
believe we have done in this case, if a 
12 
specific tangle need arises in the civil 
13 
cases, which are in circuit court in Palm 
14 
Beach County, then relief should be sought 
15 
there and notice to all parties, so to give 
16 
the Court context for that order, there was 
17 
a state court plea taken June 30th, 2008, 
18 
where Mr. Epstein pled guilty to the state 
19 
court cases as it related to two victims. 
20 
Now, parallel to that, there was an 
21 
investigation in federal court where the 
22 
United States attorney's office and the FBI 
23 
had more than 30 victims of sex abuse of 
24 
Mr. Epstein's and they were working with 
25 
these girls and their cases. Now, several 
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of those girls came to me and said, hey, 
2 
we're worried that there's a secret deal 
3 
going on between Epstein and the U.S. 
4 
attorney's office, so I filed an emergency 
5 
petition against the U.S. attorney's office 
6 
asking the federal court to intervene and 
7 
get in the middle of this and not let this 
8 
deal go forward without meaningfully 
9 
conferring with these girls because I was 
10 
alleging it violated the Crimes Victim's 
11 
Rights Act; these girls have a right to be 
12 
heard. That emergency motion was filed 
13 
July 7th, 2008, and I have that for the 
14 
Court, and I'd like to enter that into 
15 
evidence as well. 
16 
THE COURT: We'll mark that as ■'s 
17 
Exhibit No. 1. 
18 
MR. EDWARDS: And an emergency 
19 
hearing was held four days later in front 
20 
of Judge Marra, who was randomly assigned 
21 
to this case at the time the plea was taken 
22 
and the prosecution agreement was sealed. 
23 
Judge Marra had nothing to do with the 
24 
agreement, with Epstein, he didn't know 
25 
anything about it. 
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So four days later now we're in front 
2 
of him and the United States attorney's 
3 
office says for the first time, sorry, 
4 
girls, you are too late, the deal has 
5 
already been done as to all of your federal 
6 
cases and it resulted in the nonprosecution 
7 
agreement that is attached in the state 
8 
court case. Judge Marra turned to us and 
9 
said, what is your remedy. 
10 
At that point in time I said we don't 
11 
know because we don't know what protections 
12 
are inside that agreement, so we want you 
13 
to unseal it, that's where the motion for 
14 
protective order came about where he gave 
15 
us the agreement so we can look at it and 
16 
determine what remedy, if any, was 
17 
available. Once we had that agreement 
18 
under the caveat that we were not able to 
19 
disseminate to third parties and reviewed 
20 
it and saw there is very little protection 
21 
for the girls, we asked to unseal it 
22 
completely, so that we can talk to third 
23 
parties, to victim's rights groups and get 
24 
some insight as to what our possible remedy 
25 
would be. 
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1 
And so our reason for wanting him to 
2 
unseal it at that time was we want to be 
3 
able to talk to other people, and that's 
4 
where this order from February 12th, 2009, 
5 
came in, and he denied that motion to 
6 
unseal it for three reasons. 
7 
First and foremost, this 
8 
nonprosecution agreement was not sealed in 
9 
my Court, you are talking to the wrong 
10 
judge, you need to go back, so we're 
11 
getting the back and forth here and it's 
12 
not in my court, I can't mess with some 
13 
other judge's order. Obviously, there was 
14 
a hearing held and that document was sealed 
15 
for a reason, I'm not privy for those 
16 
reasons, so I'm not going to override 
17 
whatever that judge was thinking when they 
18 
sealed that document. 
19 
Second, your reason is you just want 
20 
to talk to other people about them, and if 
21 
I'm going to override some other judge's 
22 
order, I need to have a more compelling 
23 
reason than you just want to talk to people 
24 
about. 
25 
Third, if and when a specific need 
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1 
arises in any of the civil cases, which by 
2 
the time this order was coming about they 
3 
were stacking up in state and federal court 
4 
against Mr. Epstein, petition that court, 
5 
petition the appropriate court, and he 
6 
implies that appropriate court is this 
7 
court where it was initially sealed, which 
8 
we've done in this case. 
9 
This court has none of the problems 
10 
that Judge Marra had in that it was sealed 
11 
in this courtroom. 
We have noticed 
12 
Mr. Epstein to be heard at this hearing, 
13 
which is one of the requirements that 
14 
Judge Marra placed on us, and a specific 
15 
need has arisen. It has been sealed for 
16 
over a year now, correct, Mr. Goldberger is 
17 
correct, but the specific need is arising 
18 
because we are in the middle of discovery. 
19 
And this document is, as Mr. Goldberger 
20 
said, a great inducement to Mr. Epstein 
21 
pleaing guilty to sex crimes in state 
22 
court, and to ultimately being labeled a 
23 
sex offender, and the only document that 
24 
pertains to my clients, my client as a 
25 
victim of Mr. Epstein's sex crime, so at 
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1 
the very least, we should be allowed to ask 
2 
people in deposition and do discovery about 
3 
how this document came about. There is a 
4 
need here. 
5 
THE COURT: I don't quite get -- I 
6 
don't think it's relevant to what my task 
7 
is here, but I don't get how it's relevant 
8 
in the civil cases what the federal 
9 
government did or didn't do with regard to 
10 
prosecuting Mr. Epstein. I don't get that, 
11 
but I don't know that I need to. 
12 
MR. EDWARDS: The standard for 
13 
discovery is just reasonably calculated to 
14 
lead to discovery of admissible evidence 
15 
and without going in depth we do have 
16 
intention --
17 
MR. GERBER: Your Honor, can i 
18 
MR. EDWARDS: And with respect to the 
19 
grand jury argument, you've seen the 
20 
document, it's only page five and six that 
21 
it's even referred to. 
22 
THE COURT: All right. Let me turn 
23 
it over to -- does the Post want to speak? 
24 
MS. SHULLMAN: I do, but I think he 
25 
wants to go first so whenever. 
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1 
THE COURT: I haven't considered your 
2 
motion to intervene yet. 
3 
MR. KUVIN: I don't believe it was an 
4 
objection. When it was filed, there was no 
5 
objection by Mr. Goldberger or Mr. Critton. 
6 
THE COURT: Are you going to advocate 
7 
by motion to intervene or are you going to 
8 
be jumping into the merits of the sealing? 
9 
MR. KUVIN: I'll jump right into the 
10 
merits, I'm not going to duplicate anything 
11 
that was just raised or anything that the 
12 
press is going to raise, I have an 
13 
individual interest. 
14 
THE COURT: All right. Go ahead 
15 
Mr. Kuvin. 
16 
MR. KUVIN: Very briefly, your Honor. 
17 
I represent II who has filed only a state 
18 
court action, she is not under the federal 
19 
jurisdiction of Judge Marra, she does not 
20 
subject herself to the federal jurisdiction 
21 
of Judge Marra, she was never provided an 
22 
opportunity to brief any issues before 
23 
Judge Marra with respect to that order that 
24 
was entered by Judge Marra or either order. 
25 
In addition, what's also very important is 
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1 
she has never seen this document, so she 
2 
does not know what is in the contents of 
3 
the order, so the issue is raised by 
4 
Mr. Goldberger about the girls are able to 
5 
see the document and evaluate how they 
6 
might need to evaluate this document does 
7 
not apply to my client because she has 
8 
never seen it and, frankly, without 
9 
subjecting herself voluntarily to the 
,10 
jurisdiction of Judge Marra, which she 
11 
chooses not to do, then she cannot get this 
12 
document, otherwise she would have to go to 
13 
federal court, submit herself to the 
14 
jurisdiction of the federal court to then 
15 
see a state court document, which does not 
16 
make any sense because if it is a state 
17 
court document in state court, as 
18 
previously stated under Judge Marra's 
19 
order, it is within your purview and your 
20 
jurisdiction to rule on a state court 
21 
document. 
22 
Finally, with respect to why the 
23 
document may be relevant, the contents of 
24 
that document speak to the issues of 
25 
whether or not Mr. Epstein can or cannot 
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