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suit sought both injunctive and monetary 
relief. After it was served, Under Armour 
put CNA on notice of the suit and reques-
ted that CNA undertake its defense, and in-
demnify it in the event that it was found li-
able. 
CNA assigned Under Armour's cover-
age claim to James J. Hoefer, a claims con-
sultant, Aft of James Hoefer, Ex. B, fl
3-4, Pls.' Resp. to Def.'s Mot., Paper No. 
28 (hereinafter "Hoefer Aff. at 
'), who 
coordinated with in-house clait
counsel, 
(referred to in CNA's claims file as "CLEM 
counsel") and outside coverage counsel. As 
he worked on the coverage issues, Hoefer 
posted claims notes memorializing his ac-
tions, including summaries and copies of 
communications with CLEM counsel and 
coverage counsel, on a website, cnacent-
ral.com, a web-based program designed to 
permit independent insurance brokers who 
sell CNA products to quote and request is-
suance of policies for their clients, and 
thereafter to track claims for coverage once 
the insurance has been issued.*764 Aff. of 
Nancy Stoecker, Ex. A. 11 4-5, 13, Pls.' 
Resp. to Def's Mot., Paper No. 28 
(hereinafter "Stoecker Aff. at 
"). 
Under Armour purchased the policies 
from CNA by using such an independent 
insurance broker, Frenkel and Co. When 
the Topolewski suit was filed, Michael 
Peace, a senior claims consultant at Fren-
kel was assigned to monitor the suit and 
CNA's response to Under Armour's cover-
age claim. CNA had provided Frenkel with 
access to its cnacentral.com website, issu-
ing it a password, account number and lo-
gin ID to facilitate its monitoring the 
claims notes posted on the website pertain-
ing to the Under Armour coverage claim. 
Aff. of Michael Peace, 11 5-11, attached to 
Under Armour's Mem. in Supp. of its Mot. 
for a Ruling on the Use of the Claims 
Notes, Paper No. 27 (hereinafter "Peace 
Aff. at 
"). Prior to receiving this access, 
Frenkeiliened a Terms of Service Agree-
ment with CNA in which it agreed, inter 
alia, to "visit, view and to retain a single 
copy of pages of this Site solely for [its] ... 
own individual use". Ex. C, Paper No. 28, 
CNA's Resp. to Under Armour's Mot. 
To monitor the handling of Under Ar-
mour's coverage claim, Peace accessed the 
cnacentral.com 
website 
and 
reviewed 
claims notes posted by Hoefer. In Decem-
ber 2006, when he received notice from 
CNA that it had determined to deny Under 
Armour a defense and file a declaratory 
judgment action, he exchanged email with 
Hoefer in which he referenced the earlier 
claims notes he had read, and questioned 
why CNA had decided to disclaim cover-
age when it previously had been proceed-
ing in the direction of providing Under Ar-
mour with a defense, under a reservation of 
rights. Peace Aft at 1 16-17. Unbeknownst 
to Peace, Hoefer was supposed to have des-
ignated privileged and protected commu-
nications from counsel as confidential be-
fore he posted them on the cnacentral.com 
website, by selecting a "button" on the 
computer that would not post them to the 
portion of the site to which Peace had ac-
cess, but rather to a restricted portion of the 
website. Hoefer Aff. at 11 9-11, Stocker 
Aff. at 11 14-16. Hoefer inadvertently neg-
lected to designate the privileged and pro-
tected material as confidential when he 
posted it to cnacentral.com. 
With regard to the specific claims 
entries that are the subject of the pending 
motion, Hoefer summarized communica-
tions he had with CLEM and coverage 
counsel in his cnacentral.com claim notes, 
and also attached copies of email commu-
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nications from them as well. Hoefer posted 
a minimum of eight potentially privileged 
and protected entnes on the website on Au-
gust 17, 2006 (multiple postings), Septem-
ber 12, 2006, November 17, 2006, and 
November 22, 2006 (multiple postings). 
PM When Hoefer notified Peace that CNA 
had disclaimed coverage and decided to 
file a declaratory judgment action, Peace 
prepared a .pdf file containing the above 
referenced postings, and provided them to 
Under Armour. Peace Aft at ¶ 12. Under 
Armour, in turn, provided the .pdf to the at-
torneys representing it in this action. When 
they reviewed the file and determined that 
it appeared to contain entries that could be 
privileged or protected, they ceased read-
ing further, and notified counsel for CNA 
on July 10, 2007. Ex. D, Paper No. 28, 
CNA Resp. to Under Armour's Mot. In re-
sponse, on July 11, 2007, counsel for CNA 
replied, asserting that the claims notes in-
cluded attorney client privileged and work 
product protected communications, and 
denying that these *765 protections had 
been waived. Ex. E. Paper No. 28, CNA 
Resp. to Under Armour's Mourn This 
motion followed. 
FNI. Because the exhibits to the 
motions papers remain sealed until 
the final resolution of the pending 
motion, including any objections 
filed to the rulings by the under-
signed, this memorandum will de-
scribe them only in general terms. 
FN2. As noted during the hearing, 
when dealing with each other in 
connection with this sensitive and 
important issue, counsel for both 
Under Armour and CNA acted with 
the 
utmost 
professionalism 
and 
courtesy in their correspondence 
and their court filings. Disputes 
such as these can tend to bring out 
the worst in counsel, prompting ac-
cusations of unethical and unprofes-
sional behavior, and counter allega-
tions of incompetence or careless-
ness. Such behavior was entirely 
absent here, where the disagree-
ments were on the merits, and not 
ad hominem. 
Discussion 
I. Waiver of the Attorney Client Privilege 
by Inadvertent Disclosure 
As noted, CNA argues that the entries 
at issue are attorney client privileged and 
work product protected, and that Hoefer's 
inadvertent posting of them on the cnacent-
ral.com website did not waive either pro-
tection, inasmuch as CNA took prompt ac-
tion to assert the privilege and protection 
as soon as it learned of the inadvertent 
postings. Under Armour disputes the ap-
plicability of either the privilege or work 
product protection, but argues, alternat-
ively, that even if privileged and protected 
when created, these protections were 
waived. Of the two issues, the privilege 
one is the more easily resolved, and will be 
addressed fast. 
[1][2] Although this is a declaratory 
judgment action filed pursuant to 28 U.S.C. 
§ 2201 (2000), this court's underlying 
1 
juris-
diction lies in diversity of citizenshi , pur-
suant to 28 U.S.C. & 1332 (2 
, See 
Volvo Const. Equip NAm., Inc. 
CLM 
Equip. Co., 386 F.3d 581, 5 
(4th 
Cir.2004) (holding "a federal court may 
properly exercise jurisdiction in a declarat-
ory judgment proceeding when three essen-
tials are met: (1) the complaint alleges an 
'actual controversy' between the parties 'of 
sufficient immediacy and reality to warrant 
issuance of a declaratory judgment;' (2) the 
court possesses an independent basis for 
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jurisdiction over the parties (e.g., federal 
question or diversity jurisdiction); and (3) 
the court does not abuse its discretion in its 
exercise of jurisdiction."). As noted, coun-
sel have stipulated that in this diversity of 
citizenship declaratory judgment action 
seeking an interpretation of four insurance 
policies, Maryland law governs. Paper No. 
37. Further, Fed. R. of Evid. 501 states: 
Except as otherwise required by the Con-
stitution of the United States or provided 
by Act of Congress or in rules prescribed 
by the Supreme Court pursuant to stat-
utory authority, the privilege of a wit-
ness, person, government, State, or polit-
ical subdivision thereof shall be governed 
by the principles of the common law as 
they may be interpreted by the courts of 
the United States in the light of reason 
and experience. However, in civil actions 
and proceedings, with respect to an ele-
ment of a claim or defense as to which 
State law supplies the rule of decision, 
the privilege of a witness, person, gov-
ernment, State, or political subdivision 
thereof shall be determined in accord-
ance with State law. 
(emphasis added). Accordingly, Mary-
land 
law governing applicability and 
waiver of the attorney client privilege sul 
plies the rule of decision. F.H. Chase 
Clark/Gilford, 341 F.Supp.2d 562, 5 
(D.Md.2004) (fmding that Maryland law 
governed whether inadvertent production 
waived attorney client privilege in a di-
versity breach of contract case) "s. In 
Elkton *767 are Center Associates, Ltd 
Partnership I Quality Care Management, 
145 Md.App. 532, 805 A.2d 1177 (2002), 
the Maryland Court of Special Appeals sur-
veyed the law relating to inadvertent 
waiver of the attorney client privilege, not-
ing that three distinct approaches had been 
followed by courts within the United 
States: a strict waiver approach, fmding 
waiver whenever a non-privileged disclos-
ure occurs; a lenient approach: finding 
waiver only in the instance of an mtention-
al waiver by the holder of the privilege; 
and an intermediate approach, which con-
siders multiple factors to determine wheth-
er a waiver should be found. Elkton Care, 
145 Md.App. at 544-45, 805 A.2d 1177. 
The court adopted the intermediate ap-
proach, which requires a court to consider: 
" `(1) the reasonableness of the precautions 
taken to prevent inadvertent disclosure in 
view of the extent of the ... production; (2) 
the number of inadvertent disclosures,• (3) 
the extent of the disclosure; (4) any delay 
and measures taken to rectify the disclos-
ure; and (5) whether the overriding in-
terests of justice would or would not be 
served by relieving a party of its error.' " 
Id. Applying these factors to the present 
case compels the conclusion that the priv-
ilege has been waived by the inadvertent 
posting of the privileged communications 
on cnacentral.com. First, CNA failed to 
take sufficient precautions to prevent the 
inadvertent disclosure of the pnvileged in-
formation. Despite the existence of a re-
cognized procedure to mark such commu-
nications "confidential"-with 
a 
simple 
"mouse click"-at the time of their creation, 
Mr. Hoefer, an experienced claims consult-
ant, repeatedly posted email from CLEM 
and coverage counsel containing their ana-
lysis of the coverage issues, as well as 
posting entries paraphrasing their views. 
There were multiple postings over an ex-
tended period of time-from August 18, 
2006 through November 22, 2006. The re-
petitive failure to adhere to the established 
policy demonstrates that reasonable pre-
cautions were not taken. Second, there 
were a minimum of eight privileged com-
munications posted, during this extended 
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period, hardly a one-time occurrence. 
Third, the disclosure was extensive, out-
lining the very rationale for abandoning 
what appeared to be the initial decision to 
provide Under Armour with a defense un-
der a reservation of rights, in favor of a de-
cision to deny any coverage-defense or in-
demnification-and file a declaratory judg-
ment action. Fourth, while counsel for 
CNA responded immediately after notifica-
tion by counsel for Under Armour that it 
had received the .pdf file and that it ap-
peared to contain privileged communica-
tions, this does not vitiate the fact that this 
action took place in July, 2007. The post-
ings on the website remained there from 
their 
inception 
between 
August 
and 
November, 2006, despite the fact that Mr. 
Hoefer must have reviewed the website 
many times during that period, yet evid-
ently never realized what should have been 
immediately apparent-he had forgotten to 
designate the information as confidential 
and posted it where it could be read by 
third parties, including Under Armour's in-
surance broker. Finally, the record is 
devoid of any facts that would indicate that 
there is any overriding interest of justice 
that would be served by relieving CNA of 
the consequences of its error. The disclos-
ure was a result of the voluntary, albeit in-
advertent, acts by Mr. Hoefer, and not be-
cause *768 of any wrongdoing by Under 
Armour, or its insurance broker, Nfr. Peace 
of Frenkel and Co. 
FN3. 
The 
application 
of 
Fed.R.Evid. 501 in civil cases can 
be tricky. It is easiest to do where it 
is clear that either federal or state 
law governs the privilege determin-
ation. Where both federal and state 
substantive law is applicable, such 
as a federal question case with sup-
plemental state law claims, Rule 
501 would seem to require that fed-
eral privilege law control the feder-
al claims, and state privilege law 
control the supplemental state law 
claims. Of course, in instances 
where both the federal and state 
privilege law is the same, there is 
no practical difficulty. However, 
sometimes the federal and state law 
is different. An example of this lies 
in the issue presented in this case. 
As discussed above, Maryland has 
adopted the intermediate of the 
three approaches to determining the 
result of an inadvertent disclosure 
of attorney client information. E/-
ton Care Cm Assocs. Ltd. P'ship I. 
Quality Care Mgmt, 145 Md.App. 
532, 543-45, 805 A.2d 1177 (2002). 
However, the Fourth Circuit Court 
of Appeals has not yet ruled on 
which of the 
three approaches 
should be followed. There are dis-
trict court cases within the Fourth 
Circuit that have adopted the same 
intermediate approach as the Mary-
land Court of Special 
ppeals, see 
e. . McCafferty's, Inc. 
The Bank 
o Glen Burnie, 179 
.R.D. 163 
.Md.I998) (adopting the interme-
iate approach, and citing other dis-
trict court cases within the Fourth 
Circuit 
that 
have 
done 
so). 
However, other district courts have 
questioned whether the Fourth Cir-
cuit, if called upon to address this 
issue, would adopt the intermedi 
test, see, e.g., F.C. Cycles Int'l 
Fila Sport, 184 F.R.D. 64, 
(1998), and a recent examination of 
Fourth Circuit law regarding waiver 
of the attorney client privilege con-
cluded that, based on its past de-
cisions, the circuit was closely 
aligned with decisions from other 
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jurisdictions that have adopted the 
harshest of the three approaches to 
inadvertent disclosure of privileged 
information-namely that such dis-
closure waive, the privilege. See, 
Obi
e.g. Hopson 
Mayor and 
Council of Ba timore, 232 F.R.D. 
228, 237-38, (D.Md.2005) (noting 
that Fourth Circuit cases appear to 
interpret the attorney client priv-
ilege very strictly and appear to fa-
vor the "strict liability" approach to 
inadvertent disclosure of priyileged 
information, under which waiver is 
the consequence of such disclos-
ure). If a civil case in federal court 
contains claims governed by both 
federal and state substantive law, 
what law should the court apply 
when the federal privilege law is 
different from the state privilege 
law? This is a complex question, 
but it appears that the majority of 
courts that have faced it have held 
that federal privilege law trumps 
state law, because were it other-
wise, the jury would be faced with a 
hopelessly confusing task. See, e.g., 
Hancock 
Hobbs, 967 F.2d 462, 
466-67 ( lth Cir.1992) (applying 
federal rule of privilege to both fed-
eral and state claims and finding 
that "it also would be impractical to 
apply two different rules of priv-
ilege to the same evideny before a 
single jury."); Hancock . Dodson, 
958 F.2d 1367, 1373 (6 
Cir.1992) 
(holding that the existence of pen-
dent state claim did not relieve the 
Court of its obligation to apply the 
federal law of Tivilege); Wm. 7'. 
Thompson Co. 
Gen. Nutrition 
Corp., 671 F.2 
100, 104 (3d 
Cir.1982) (holding "that when there 
are federal law claims in a case also 
presenting state law claims, the fed-
eral rule favoring admissibility ...I 
the controlling rule."); von Bulow 
von Bulow, 811 F.2d 136, 141 ( d 
Cir.I987) (holding that federal law 
controlled 
question 
of 
privilege 
where federal civil RICO claims 
were joined with state law claim ; 
Andritz 
Sprout-Bauer, 
Inc.
Beazer East, Inc., 174 F.R.D. 6
632 (M.D.Pa.1997) ("In a federal 
question case with supplemental 
state law claims, the federal law of 
privileges 
governs 
the 
entire 
case."); In re Combustion, Inc., 161 
F.R.D. 
51, 
54 
(W.D.La.1995) 
(holding that "the federal law of 
privilege provides the rule of de-
cision with respect to privilege is-
sues affecting the discoverability of 
evidence in this federal question 
case involving pendent state law 
claims."; this result is consistent 
with "the general policies of the 
federal rules favoring fiformity 
and simplicity"); Tucker 
United 
States, 143 F.Supp.2d 61 , 622-25 
(S.D.W.Va.2001) (finding 
federal 
privilege law, not state privilege 
law, applied to both FTCA and pen-
dent state law claims ing6medical 
malpractice case); Syposs . United 
States, 
179 
F.R.D. 
4 , 
411 
(W.D.N.Y.1998) (finding medical 
malpractice claim under the FTCA 
is a federal question case and there-
fore the federal common law of 
ivileges applies). But see Sprague 
Thorn Americas, Inc., 129 F.3d 
355, 
1368-69 
(10th 
Cir.1997) 
(suggesting that in case involving 
both federal claims and pendent 
state claims, "both bodies" of priv-
ilege law should be considered); 
Motley 1. Marathon Oil Co., 71 
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F.3d 1547, 1551 (10th Cir.1995) 
(case involving federal and state 
claims; suggesting that for state 
claims, state -kw of privilege should 
apply); Ellis I. United States, 922 
F.Supp. 539, 540 (D.Utah 1996) 
(finding the case does not involve a 
federal question and that Utah law, 
not federal law, "determines the ap-
plicable 
clergy 
privilege."), 
2 
Stephen A. Saltzburg, Michael M. 
Martin & Daniel J. Capra, Federal 
Rules of Evidence Manual 501-9 
(8th ed. 2002) ("We note that most 
Courts, when confronted with this 
question, have held that the federal 
law of privilege applies to both the 
federal claim and to the pendent 
state claim."). In this case, the un-
derlying jurisdiction of this court is 
diversity of citizenship, and the 
parties have agreed that Maryland 
substantive law is controlling. Ac-
cordingly, 
because 
this 
case 
presents only state law claims, fed-
eral privilege law is inapplicable, 
and the Court is not called upon to 
select between potentially compet-
ing versions of the law of privilege. 
In this regard, CNA argues that Peace 
violated the Terms of Service agreement 
for use of the cnacentral.com website, be-
cause that agreement restricted access to 
the site "solely for [Frenkel's] ... own indi-
vidual use", and prohibited him from du-
plicatingt downloading, publishing, or oth-
erwise distributing any material on the site 
for "any, purpose other than for [Frenkel's] 
... own mdividual use". See Ex. C, Paper 
No. 28 CNA's Resp. to Under Armour's 
Mot. This argument is unpersuasive. First, 
the Terms of Service agreement, which 
CNA drafted, does not define "own indi-
vidual use", and it must be read in the con-
text of the entire agreement, and given a 
reasonable interpretation. As the Stoecker 
and Peace affidavits show, CNA permits 
independent insurance brokers access to 
the cnacentral.com website to enable them 
to determine premium costs and underwrite 
CNA insurance policies, and, once issued, 
to monitor claims relating to policies that 
have been issued to their clients by CNA. 
Peace's access to the website was entirely 
consistent with that permitted purpose. 
Further, it is clear that Frenkel and Co., as 
an independent insurance broker, owed a 
duty towards its client, which was Under 
Armour, not CNA. Indeed, Frenkel's web-
site, http:// www. frenkel. corn the con-
tents of which this court judicially noticed 
pursuant to Fed.R.Evid. 201, make it clear 
that as part of their services to their clients 
they "meet regularly with the insurance 
companies that assume your specific busi-
ness risks, and navigate a claims process 
that can be tedious in hard and soft mar-
kets alike". See Frenkel & Co, Inc., httpi/ 
www. cosmetic insurance. com, (last vis-
ited Feb. 12, 2008) (emphasis added). 
Moreover, the courts of Maryland long 
have held that an insurance broker is an 
agent of its principal the entity that is seek-
ing insurance, not the company isfing the 
policy. Am. Cas. Co. of Reading 
Ricas, 
179 Md. 627, 631, 22 A.2d 484 1941) ( 
"Ordinarily, the relation between the in-
sured and the broker is that between prin-
cipal and agent. An insurance broker is or-
dinarily employed by a person seeking in-
surance, and when so employed, is to be 
distinguished from [the] ordinary insurance 
agent, who is employed by insurance com-
panies to solicit and write iir
ce by, 
in
and 
the company."); Cooper . Berkshire 
Life Ins. Co., 148 Md.App. 
, 83, 810 
A.2d 1045 (2002) ("[I]nsurance agents and 
brokers clearly owe a professionals duty to 
the insured. 'An agent, employed to effect 
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537 F.Supp.2d 761 
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insurance, must exercise such reasonable 
skill and ordinary diligence as may fairly 
be expected from a person in his profession 
or situation, in doing what is necessary to 
effect a policy, in seeing that it effectually 
covers the property to be insured, in select-
ing the insurer and so on'.... The failure to 
meet that duty allows a recovery in tort.") 
(internal citations omitted). It would be 
disingenuous of CNA to suggest that Fren-
kel had any need for "individual use" of 
the cnacenttral.com website claims notes 
relating to the suit filed against Under Ar-
mour by Topolewski America Inc. for any 
purpose other than to learn information re-
garding the status of Under Armour's de-
mand for coverage from CNA, which it had 
a legal duty to report to Under Armour. 
Any other reading of the language of the 
agreement would produce an absurd result. 
Similarly, the Terms of Service agreement 
permitted Frenkel to 'download, publish, 
modify or otherwise distribute any material 
on [the cnacentral.com] Site" for the same 
"individual use", which by necessity per-
mitted its disclosure to Under Armour. Ac-
cordingly, I find no merit in CNA's argu-
ment that Peace's downloading to a .pdf 
file the contents of the cnacentral.com 
claims file relating to Under Armour's 
*769 claim and thereafter providing it to 
Under Armour, its principal, was in viola-
tion of the Terms of Service Agreement. 
Accordingly, I find that the attorney client 
privilege has been waived as to the materi-
als posted on cnacentral.com. 1" /
FN4. Under Armour's motion only 
seeks a ruling by the Court regard-
ing what use, if any, it may make of 
the privileged and protected inform-
ation posted on cnacentral.com. It 
has neither argued nor briefed the 
issue of whether the disclosure 
amounted to subject matter waiver 
of the attorney client privilege. Be-
cause this issue is not before the 
Court, this ruling addresses only the 
privileged materials actually posted 
and nothing more. 
2. Waiver of Work Product Protection By 
Disclosure to An Adverse Party 
[3][4] The conclusion that the attorney 
client privilege has been waived as to the 
claims notes as a result of their inadvertent 
disclosure to Frenkel and Under Armour 
does not concomitantly compel the conclu-
sion that they also have lost work product 
immunity. PM This is because: 
FNS. As I did with the attorney cli-
ent 
analysis, 
I 
have 
assumed, 
without deciding, that the claims 
notes at issue would qualify as at-
torney opinion work product. 
[t]he fora communication 
of the
ui attorney-client 
does not 
priv-
ilege
auto-
matically waive whatever work-product 
immunity that communication may also 
enjoy, as the two are independent and 
grounded on different policies. Waiver of 
the privilege should always be analyzed 
distinctly from waiver of work product, 
since the privilege is that of the client and 
the work product essentially protects the 
attorney's work and mental impressions 
from adversaries and third parties even 
when communicated to the client. 
Edna S. Epstein, The Attorney-Client 
Privilege and the Work-Product Doctrine 
i
608 (4th ed.2001). Because the work 
product doctrine is not a privilege, but 
rather a qualified immunity from discov-
ery'" Fed.R.Evid. 501 is inapplicable, 
and Maryland law does not govern this 
waiver issue. Rather, federal law does, 
even though jurisdiction in this case is 
bottomed on di rsity of citizenship. 
United Coal Cos. I. Powell Constr., 839 
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537 F.Supp.2d 761 
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F.2d 958, 966 (3d Cir.1988) (unlike the 
attorney 
client 
privilege, 
the 
work 
product doctrine is governed, even in di-
versity r, 
by 
federal 
law); 
Coregis
Ins. Co. 
Law Offices of Carole F. Ka-
frissen, 
.C. 57 F'ed.Appx. 58, 60 (3d 
Cir.2003) (federal-not state-standard ap-
plied in determining scope of work 
product privilege in diversity case); In re 
Powerhouse Licensing LLC, 441 F.3d 
467, 472 (6th Cir.2006) ("In a diversity 
case, the court applies federal law to re-
solve work product claims and state law 
to 
relive 
attorney-client 
claims."); 
Baker . Gen. Motors Corp., 209 F.3d 
1051, 
53 (8th Cir.2000) (federal courts 
apply state law to resolve attorney client 
pnvilege issues and federal law to re-
solve work product issues,
 diversity 
cases); Frontier Ref. Inc. 
. Gorman-
Rupp Co., 136 F.3d 695, 70 n. 10 (10th 
Cir.1998) ("[u]nlike the attorney client 
privilege, the work product [doctrine] is 
governed., even in diversity cases, by a 
uniform federal standard embodied in 
26(7(3).1 
N.
; Allied fish 
Banks 
Bank oaf America, 
A., 240 
F.R.D. 6, 105 ( .D.N.Y.2007) ("While 
state law governs the question of attor-
ney-client privilege in a diversity action 
federal law governs the applicability
the work product doctrine.' ; Schipp 
Gen. Motors *770 Corp., 45 F. Supp d 
917, 923 (E.D.Ark.2006) ("In a diversity 
case, the Court applies federal law to re-
solve work product claims."); Bank of the 
West 
Valley Nat. Bank of Ariz., 132 
F.R.D. 250 (N.D.Ca1.1990) (in diversity 
action, California law would govern res-
olution of issues arising out of plaintiffs 
invocation of attorney client privile e 
whereas work product issues would 
resolved under federal law); Nicholas 
Bituminous Cas. Corp., 235 F.R.D. 32 , 
329 n. 2 (N.D.W.Va.2006) ("In a di-
versity case, federal courts apply federal 
law to resolve work-product privilege 
y
claims and state law to resolve alto ey-cli-
ent privilege claims."); Maertin . Arm-
strong World Industries, Inc., 17 F.R.D. 
143, 147 (D.N.J.1997) ("[T]he work 
product privilege is governed, even in di-
versity cases, by 
iform federal law..."); 
S.D. Warren Co. I. E. Elect. Corp.,
dc  201 
F.R.D. 280, 281 (D.Me.2001) federal 
courts apply federal law when ad ressing 
the work product doctrine, even in di-
versity cases lacking any federal ques-
tion); 8 Wright, Miller & Marcus, Feder-
al Practice and Procedure: Civil 2d. § 
2023 (2d ed. 1994) ("At least since the 
adoption of Rule 26(13)(3) in 1970, it has 
been clear that in federal court the ques-
tion whether material is protected as 
work product is governed by federal law 
even if the case is in court solely on 
grounds of diversity of citizenship.") J. 
FN6. Musselman I 
Phillips, 176 
F.R.D. 194, 195 n. 1 (D.Md.1997) 
(collecting 
luthority); 
Nutramax 
Labs., Inc. 
. Twin Laboratories 
Inc., 183 F. .D. 458, 463, n. 8 
(D.Md.1998); 
8 
Charles 
Alan 
Wright, Arthur R. Miller & Richard 
L. Marcus, Federal Practice and 
Procedure: Civil 2d § 2023 at 335 
(2d ed.1994)(work product materi-
als are not beyond the scope of dis-
covery on grounds of "privilege"). 
FN7. However, the result almost 
certainly would be the same even if 
Maryland law controlled. In Mary-
land, the work product doctrine has 
been codified at Maryland Rule 
2-402(d), the text of which is sub-
stantially identical to Fed.R.Civ.P. 
26(bX3). 
Moreover, 
Maryland 
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Page 12 
537 F.Supp.2d 761 
(Cite as: 537 F.Supp.2d 761) 
courts long have cited federal cases 
when ruling on issues involving the 
work product doctrine 
in step 
cases. See, e.g. Balt. Transit Co. 
Mezzanotti, 227 Md. 8, 14.p. 2, 174
A.2d 768 (citing Hickman I Taylor, 
329 U.S. 495, 67 S.Ct. 385, 91 
L.Ed. 451 (1947) as authority in in-
terpreting the workproduct doctrine 
i
under Maryland law • E.I.du Pont 
de Nemours & Co. 
Forma-Pack 
Inc., 351 Md. 396, 07, 718 A.2d 
1129 (1998) (citing federal law in 
interpreting work product doctri
under Maryland law); Gallagher 
Office of the Airy Gen., 
1 
Ivid.App. 664, 677, 787 A.2d 777 
(2001) (citing federal cases in eval-
uating whether, under 
Maryland 
law, work product protection had 
been waived); Elkton Care, 145 
Md.App. at 543, 805 A.2d 1177 
(citing federal case law in determin-
ing whether, under Maryland law, 
work product protegtion had been 
waived); DeVetter I. Alex. Brown 
Mgmt. 
Svcs., 
Inc., 
No. 
24-C-03-007514, 
2006 
WL 
1314014, 
at 
* 
11 
(Md.Cir.Ct. 
Mar.22, 2006) (citing federal case 
law in deciding issue of whether 
work 
product 
protection 
was 
waived, under Maryland law). 
CNA cotitePtig that under Fp urth Cir-
• 
such 
as the email froms&yeragesci CLEM
_ 
counsel and Hoefer's chatacterizatimilt 
1 anal  sis, is afforded 
 
 
immune" or "nearly a' so utely 
4mmune
frel11-61164"
*uamel- 
ert zwal°—anICSA
wah this point, ut it is irre event. 
under Armour does not seek discovery 
pursuant to Fed.R.Civ.P. 34 of the claims 
notes that Hoefer posted on cnacent-
ral.com. They were obtained by Under Ar-
mour from its insurance broker, Frenkel, 
entirely outside of the discovery process. 
The issue presented in this case is not 
whether the opinion work product con-
tained in the claims notes can be dis-
covered, but whether its inadvertent post-
ing prior to the filing of this lawsuit on a 
website to which CNA's adversary, Under 
Armour, had been given access, waives 
work product protection. And, as will be 
*771 seen, the Fourth Circuit clearly has 
recognized that opinion work product pro-
tection, however exalted and immune from 
discovery, may nonetheless be waived. 
8. See, e.g. In re Allen, 106 F.3d 
582, 607 (4th Cir.1997) (opinion 
work product enjoys "nearly abso-
lute" immunity 
from discovery); 
Nat'l Union Fire Ins. Co.
. Murray 
Sheet Metal Co., 967 F.2
980, 984 
(4th 
Cir.1992) 
(opinion 
work 
product "absolutely immune" fro 
discovery); Nutramax Labs., Inc. r 
Twin Labs., Inc. 183 F.R.D. 45 , 
462 (D.Md.1998) (under Fourth 
Circuit case law opinion work 
product has [been] characterized 
variously as "absolutely immune" 
or "nearly absolutely immune" from 
discovery, collecting cases). 
In Duplan Corp.'. Deering Milliken 
Inc., 540 F.2d 1215 (4th Cir.1976), the 
Fourth Circuit held that work product pro-
tected information that had been produced 
either voluntarily or inadvertently to an ad-
versary did not result in subject matter 
waiver, as would be the case for attorney 
client privileged materials. The court sum-
marized its holding as follows: 
Thus, to the extent that a concept of sub-
ject matter waiver is applicable to Rule 
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Page 13 
537 F.Supp.2d 761 
(Cite as: 537 F.Supp.2d 761) 
26(bX3) under the rationale of the Nobles 
F149 case which held that testimonial use 
of work product constituted waiver, we 
are of [the] opinion it does not extend to 
a case such as this where there has been 
only inadvertent or partial disclosure in 
response to specific inquires, and in 
which no testimonial use has been made 
of the work product. 
FN9. Referring to United States 
S.C.
I
Nobles, 422 U.S. 225, 95 
. 
2160, 45 L.Ed.2d 141 (1975). 
Duplan, 540 F.2d at 1223. Of course, 
the subject of the Duplan case was the ex-
tent to which the inadvertent or partial pro-
duction constituted a waiver, and if so, 
whether additional discovery of protected 
materials was warranted. It did not attempt 
a comprehensive analysis of the underlying 
circumstances that would trigger a waiver 
in the first instance. Implicit m the conclu-
sion that broad subject matter waiver did 
not apply to opinion work product is an ac-
knowledgment that the inadvertent produc-
tion of opinion work product could result 
in more limited waiver, as to the materials 
actually produced. This concept was clari-
fied further y the Court in Martin Mari-
etta Corp. . Pollard, 856 F.2d 619, 626 
i 
(4th Cir.19 ), where it stated: 
irst and most generally, opinion work 
product is to be accorded great protection 
by the courts. While certainly actual dis-
closure of pure mental impressions may 
be deemed waiver, and while conceivably 
there may be indirect waiver in extreme 
I circumstances  we think generally such 
work product is not subject to discovery. 
(emphasis added). The Fourth Circuit 
more comprehensively addressed the cir-
cumstances that could result in the waiver 
if 
Uonite
ppinion swtaotrk 
p
, 662 F. 
2rr
d 
iciiio3n 
( 
t
, 1081 
h Cir. 1981), where it ruled: 
Recent decisions considering [ waiver 
of work product protection] ... have fo-
cused on a concern inherent in the 
work product rule: that since an attor-
ney's work is for his client's advantage, 
opposing counsel or adverse parties 
should not gain the use of that work 
through discovery. The attorney and 
client can forfeit this advantage, but 
their actions effecting the forfeiture or 
waiver must be consistent with a con-
scious disregard of the advantage that 
is otherwise protected by the work 
product rule. Disclosure to a person 
with an interest common to that of the 
attorney or the client normally is not 
inconsistent with an intent to invoke 
the work product doctrine's protection 
and would not amount to such a waiver 
. However, when an attorney freely 
and voluntarily discloses the contents 
of otherwise protected work product to 
someone with interests adverse to his 
or those of the client, knowingly in-
creasing the possibility that an oppon-
ent will obtain and use the material, he 
may be deemed to have waived work 
product protection .... Additionally, re-
lease of otherwise protected
withott 
intent to limit its future dis-
position_ might forfeit work product 
*772 kroteetion, regardless  of the rela-
tiotillup between the Attorney 
nd 
the-recipient of the material. Ia oilier 
words, to effect a_farfeatur-E4Ttirark 
product protection by waiver disclosure 
must occur in circuitillances-zWlilikh 
the attorney cannot reasonably_expect to 
„ limit the future use of the othemisipro-
tected material 
(emphasis added). 
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Page 14 
537 F.Supp.2d 761 
(Cite as: 537 F.Supp.2d 761) 
[5] The notion that disclosure of work 
product protected material in a manner that 
creates a substantial risk that it will be re-
ceived by an adversary waives the protec-
tion because it  cannot be expect& thatrthe 
ited-trg
nrnon sense proposition tit lf glas 
future use of
 information-caul
been-retbrnila by other co H 
and—Com-
cmentatorrfor the simple reason that once 
an-adversary has become aware of the con-
teitt—orThe information disclosed it cannot 
ptynE3it rom_its rniiid:-This principle las 
been stated authoritatively as follows: 
"Work-product immunity is waived if the 
client, the client's lawyer, or another au-
thorized agent of the client: ... (4) discloses 
the material to third persons m earcuin. 
stames in which there is a si tticant like-
liheod--that an adversary or potential a - 
it'._ Restatement (Third) of the Law 
ov-
ening Lawyers § 91 (2000). The notion is 
that failure to take adequate precautions to 
prevent an adversary from obtaining work 
product information warrants waiver be-
cause "Wndifference to such a con-
sequence indicates that protection of the 
immunity was not important to the person 
claiming the protection." § 91 cmt. b. Fur-
ther, as long as the disclosure was volun-
tary, waiver results, even if it was not con-
sensual. § 91, cmt. a ("Most decided cases 
of waiver involve actions of the attorney or 
client that are voluntary, but not eiplicitly 
consensual."). See, e.g GAF Corp. t. East-
man Kodak Co., 83 F.R.D. 46, 51-52 
(D.C.N.Y.1979), 
abrogated 
on 
other 
grounds by In re Steinhardt Partners, 9 
F.3d 230, 233 (2d Cir.1993) ("The majority 
rule provides that disclosure of the priv-
ileged information by the party asserting 
the attorney work product privilege to a 
third-party does not constitute waiver un-
less such disclosure, under the circum-
stances, is inconsistent with the mainten-
ance of secrecy from the disclosing party's 
adversary. Therefore, only if such disclos-
ure substantially increases the possibility 
that an opposing party could obtain the in-
formation disclosed will the disclosing 
party's work product privilege be deemed 
waived. This majority rule reflects the pur-
pose of the work product privilege which is 
to prevent an opposing party from securing 
the protected information rather than to 
prevent the outside world generally from 
obtaining the information.") (internal cita-
tions 
mined);
o
 Niagara Mohawk Power 
Corgi. Stone & Webster Eng'g Corp., 125 
F.R.D. 578, 587 (N.D.N.Y.1989) ("Mork 
product protection is waived when protec-
ted materials are disclosed in a manner 
which `substantially increases the oppor-
tunity for potential adverse•s to obtain 
the information' ".); Carter
Gibbs, 909 
F.2d 
1450, 
1451 
(Fed.Cir.1990) 
(Fed.Cir.1990) (en bane), superseded in 
non-relevant part. Pub.L. No. 103-424, § 
9(c). 108el at. 4361 (1994), as recogniz 
in Mudge . United States, 308 F.3d 1220, 
1223 (F .Cir.2002) ("Assuming the mo-
tion to strike asserts the work product as 
well as the attorney-client privilege, we be-
lieve the government has waived the 
former by voluntarily attaching a copy of 
the offending memorandum to appellants' 
copy of the motion for an extension of 
time. It is irrelevant whether the attachment 
was inadvertent, as the government alleges. 
Voluntary disclosure of attorney work 
product to an adversary in the litigation for 
which the attorney produced that informa-
tion
)3
defeats the policy underlying *7 
the 
privilege."); Frank Betz Assocs., Inc. . Jim 
Walter Homes, Inc., 226 F.R.D. 53 , 535 
(D.S.C.2005) (finding that "courts gener-
ally find a waiver of the work product priv-
ilege only if the disclosure substantially in-
creases the opportunity for potential ad-
versaries to obtain the information.") 
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Page 15 
537 F.Supp.2d 761 
(Cite as: 537 F.Supp.2d 761) 
(quoting 
nig251i71 (z DG.NrarNiflo itz, q5n6telrnFaiSu
quo-
tations omitted); 8 Wright, Miller & Niar-
cus, Federal Practice and Procedure; Civil 
2d § 2024 at 369 (2d ed. 1994) ("Mts, the 
result should_ be that disclosure of a docu-
ment to third persons_does not waive—ffe 
work-pmdiietimmuniV unless it hes sub-
stanti 
eased—the opportunities
ir 
tent 
ies to obtain the informa-
l; 6 James Wm. Moore, et 
Moore's Federal Practice § 26.70[6][c] (3d 
ed.2004) at 26-167 ("Because the work 
product privilege is intended to protect the 
adversary process, some cases draw a dis-
tinction between disclosures made to non-
adversaries and disclosures made to ad-
versaries. While disclosures made to non-
adversaries do not necessarily waive the 
work product privilege, a disclosure only to 
one adversary waives the privilege as 
against all other adversaries. F rthermore 
a party may not avoid waiver 
asse p 
"fh
ete ip:inof--th 
- 
material to 
ventry."). 
[6][7] In this case, CNA's disclosi 
of the opinion work product of its CI 
and coverage counsel was made to Mir 
Peace of Frenkel and Co, who was 
Armour's agent. Disclosure to an agf 
tantamount to disclosure to the pnr 
196
See MW. Life Ins. Co. of New Y 
Hilton-Green, 241 U.S. 613, 622, 3i 
rule which imputes an aen s 
to the principal is well established. 
deriving reason for it is that an 
thira party may properly presume 
will perform his duty and report 
which affect the principal's inter 
statement (Second) of Agency 2 
(1958) ("The principal is affected by the 
knowledge which the agent has when act-
676, 60 L.Ed. 1202 (1916) c'The 
19-a/
 knr 
Qt 
el 
al., 
ing for him or, if it is the duty of the agent 
to communicate the information and not 
otherwise to act, the principal is affected 
after the lapse of' such time as is reasonable 
for its communication."). Accordingly, by 
disclosing the content of protected opinion 
work product to its adversfiry-Under Ar-
mour-CNA cannot now maintain that the 
protection continues to exist. As a matter 
of law the protection has been waived. As a 
practical matter, no other result makes 
sense. CNA cannot expect to limit the fu-
ture use by Under Armour of the protected 
material it disclosed. Neither Under Ar-
mour nor its counsel can purge from their 
consciousness this information that they re-
reivecl not through any wrongdoing of their 
• rather, as a result of the volun-
aIction ofr CNA.
J4.17 7;10 1C 
t;ton ey-cLI
)-3 
.\Atex 
pkir: 
-,Pep 
F-No 
4A-f! 
)-tyg 9 t )%fm
g) 
/Wu.-
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537 F.Supp.2d 761 
(Cite as: 537 F.Supp.2d 761) 
26.70[6][c] (3d ed.2004) at 26-467 CA 
waiver of work-product protection encom-
msses only the items actually disclosed. 
Thus, disclosure of some documents does 
not imply that work product protection has 
been destroyed for other documents of the 
same character."). 
Having found that both the attorney cli-
ent privilege and work product protection 
have been waived as to the claims notes 
posted by Mr. Hoefer on cnacentral.com, 
CNA is at liberty to use those materials, to 
the extent that they are relevant and other-
wise admissible in the pending lawsuit. 
D.Md.,2008. 
Continental Cas. Co. I. Under Armour, Inc. 
537 F.Supp.2d 761 
END OF DOCUMENT 
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Case 9:08-cv-80736-KAM Document 94 
Entered on FLSD Docket 09/02/2011 Page 1 of 23 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
CASE No. 08-80736-CIV-MARRA/JOHNSON 
JANE DOE I and JANE DOE 2, 
Plaintiffs, 
1. 
UNITED STATES OF AMERICA, 
Defendant. 
SUPPLEMENTAL BRIEFING IN SUPPORT OF 
MOTION TO INTERVENE OF ROY BLACK, 
MARTIN WEINBERG, AND JAY LEFKOWITZ 
During the hearing on August 12, 2011, the Court directed the proposed intervenors to file 
additional briefing on their argument that plea negotiations arc privileged and not subject to 
discovery or use as evidence in these proceedings. Proposed intervenors submit the following 
memorandum of law, which is identical to Parts 1 and II of the memorandum of law submitted by 
proposed intervenor Jeffrey Epstein in support of his motion for a protective order and his opposition 
to the motions of the plaintiffs for production, use, and disclosure of his plea negotiations. If 
allowed to intervene, the lawyers would incorporate these arguments into their motion for a 
protective order, which was attached to their initial motion to intervene. 
Established case law as well as sound and substantial policy considerations prohibit 
disclosure of the letters and emails prepared by Mr. Epstein's lawyers during plea negotiations with 
the government, and require that the letters and emails that Jane Doe I and Jane Doe 2 already have 
remain confidential. In support of their position, proposed intervenors submit this memorandum 
EFTA00177940

Case 9:08-cv-80736-KAM Document 94 
Entered on FLSD Docket 09/02/2011 Page 2 of 23 
of law. 
Part I shows that the Court should deny disclosure and use of the plea negotiations by simple 
reference to Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f), without having to 
reach the other issues raised by the parties and the proposed intervenors. This is because during the 
hearing on August 12, 2011, Jane Doe 1 and Jane Doe 2 admitted that they intend to use the plea 
negotiation letters and emails as substantive evidence at a "remedies hearing" where they will seek 
invalidation of Mr. Epstein's Non-Prosecution Agreement. Using this correspondence as evidence 
against Mr. Epstein is plainly prohibited by Evidence Rule 410 and Criminal Rule 11. 
Part II of this memorandum shows that Jane Doe I and Jane Doe 2 are not entitled to 
discovery or use of the plea negotiations not only because of the reach of Rules 410 and 11, but also 
because plea negotiations enjoy an evidentiary privilege as recognized by the Supreme Court in 
United States' Mezzanatto, 513 U.S. 196, 204 (1995) ("Rules 410 and 11(eX6) sewage], in effect, 
a privilege of the defendant,' and, like other evidentiary privileges, this one may be waived or varied 
at the defendant's request"). Additionally, because plea negotiations are "rooted in the imperative 
need for confidence and trust," and because their confidentiality serves significant public and private 
ends, they are properly subject to a common law privilege under Federal Rule•of Evidence 501. 
Similar privileges, which are "rooted in the imperative need for confidence and trust" and which 
serve significant public and private ends, have been recognized by Judge Marcus in the case of In 
Re Air Crash Near Cali, Colombia, 959 F. Supp. 1529 (S.D. Fla. 1997); by Chief Judge Vinson of 
the Northern District of Florida in Reichhold Chemicals, Inc.. Textron, Inc., 157 F.R.D. 522 (N.D. 
Fla. 1994); and by a number of district courts recognizing a mediation privilege which shields from 
disclosure and use mediation documents, letters, and communications. 
2 
EFTA00177941

Case 9:08-cv-80736-KAM Document 94 
Entered on FLSD Docket 09/02/2011 Page 3 of 23 
PART I 
A. 
PLEA NEGOTIATIONS MAY NOT BE USED AGAINST MR. EPSTEIN 
UNDER THE PLAIN LANGUAGE OF THE FEDERAL RULES 
The Court should deny disclosure and use of the plea negotiations by simple reference to 
Rule of Evidence 410 and Rule of Criminal Procedure 11(f), without having to reach the other issues 
raised by the parties and the proposed intervenors. During the August 12, 2011 hearing, the plainti ffs 
admitted that they seek the defense letters and emails to offer them as evidence to support their 
request that the Court invalidate Mr. Epstein's Non-Prosecution Agreement. According to the 
plaintiffs, the plea negotiations will show that Mr. Epstein supposedly "engineered" and 
"orchestrated" the claimed Crime Victims' Rights Acts violations and that therefore the plaintiffs 
are entitled to negate Mr. Epstein's interest in the protections and finality of the Non-Prosecution 
Agreement. [August 12, 2011 Trans. at 33-34, 61, 107-09]. 
The letters and cmails exchanged between the government and defense counsel during plea 
negotiations are classic settlement discussions, written with the intention that they remain 
confidential. As such, they are protected by the constitutional right to effective assistance of counsel 
and the express language of Rule 410 and Federal Rule of Criminal Procedure 11(0. FED. R. EvID. 
410 (discussions made during plea negotiations are "not, in any civil or criminal proceeding, 
admissible against the defendant who .. . was a participant in the plea discussions"); FED. R. CRIM. 
P. 11(0 ("the admissibility or inadmissibility of . . . a plea discussion and any related statement is 
governed by Federal Rule of Evidence 410"). 
Obviously, the plaintiffs intend to use the plea negotiation letters "against" Mr. Epstein. 
They protested during the August 12 hearing that the letters would be offered "against the 
3 
EFTA00177942

Cse 9:08-cv-80736-KAM Document 94 Entered on FLSD Docket 09/02/2011 Page 4 of 23 
government" and "not against Mr. Epstein," but this is disingenuous given their emphatic and 
categorical representations to the contrary. [Compare Trans. at 29-30 with Trans. at 33-34, 61, 107-
09]. The plaintiffs' arguments and accusations throughout this litigation, including the various 
conspiracy allegations leveled against Mr. Epstein during the August 12 hearing, establish that the 
plaintiffs' true purpose is to use the plea negotiations against Mr. Epstein in the current proceeding. 
The prohibition on admission of plea negotiation communications clearly extends to the 
current proceeding, whether it is denominated a quasi-criminal or a civil proceeding. The committee 
notes to former Rule 11(0)(6), which read almost identical to Rule 410, specifically state that the 
words "not . . . admissible against the defendant' refer to "the purpose for which [the evidence] is 
offered" and not "to the kind of proceeding in which the evidence is offered." FED. R. CRIM. PRO. 
11 advisory committee note 1979 amendment (emphasis added). Rule 11 was amended in 1979 
specifically to avoid confusion or misunderstanding regarding this phrase, and to emphasize that 
"against the defendant" means "the purpose" for which the evidence is being used: 
The phrase "in any civil or criminal proceeding" has been moved from its present 
position, following the word "against," for purposes of clarity. An ambiguity 
presently exists because the word "against" may be read as referring either to the kind 
of proceeding in which the evidence is offered or the purpose for which is offered. 
The change makes it clear that the latter construction is correct. 
Committee on Rules of Practice And Procedure of The Judicial Conference of The United States, 
Standing Committee On Rules of Practice And Procedure, 77 F.R.D. 507, 538 (February 1978) 
(emphasis added). 
Even though the plaintiffs claim that they would technically offerthe plea negotiation letters 
against the government because the government is its opponent, their real and express purpose is to 
offer the plea negotiations against Mr. Epstein to prove his supposed culpability in encouraging the 
4 
EFTA00177943

se 9:08-cv-80736-KAM Document 94 Entered on FLSD Docket 09/02/2011 Page 5 of 23 
government to breach what the plaintiffs contend is their statutory right to consultation, and to then 
seek the unprecedented and unconstitutional remedy of invalidation of the Non-Prosecution 
Agreement despite the fact that Mr. Epstein has already suffered all of its penal and adverse 
collateral consequences: jail, community custody, payment of substantial legal fees to an attorney 
representative for his accusers, payment of substantial civil settlements driven by waivers negotiated 
by the government to facilitate its witnesses bringing successful civil lawsuits, and registration 
requirements. 
Rules 410 and 11 plainly prohibit admission of the plea communications. 
B. 
BECAUSE PLEA NEGOTIATIONS ARE INADMISSIBLE, THE PLAINTIFFS 
BEAR THE BURDEN OF PARTICULARIZING A PROPER BASIS FOR DISCOVERY 
When a discovery request seeks "information subject to exclusion under the Federal Rules 
of Evidence, such as settlement information, ... many courts shift the burden to the requesting party, 
requiring them to make a particularized showing that the inadmissible evidence is likely to lead to 
admissible evidence." Reisti Source Interlink Co., 2010 WL 4940096 at *2 (M.D. Fla. Nov. 29, 
2010); Bottum. Hatton Assocs., 96 F.R.D. 158, 159-60 (E.D.N.Y. 1982) ("the object of the inquiry 
must have some evidentiary value before an order to compel disclosure of otherwise inadmissible 
material will issue"). Such a burden-shifting analysis is particularly important where the discovery 
is protected by a rule of inadmissibility, where the plaintiffs have not identified any principled basis 
for discovery other than to seek to admit the plea communications in evidence, and where the 
policies behind the rule of inadmissibility would be compromised by any disclosure, regardless of 
whether the communications are later excluded as evidence in proceedings in this case. 
The plaintiffs in Bottum sued a number of defendants for securities fraud. One defendant 
5 
EFTA00177944

Case 9:08-cv-80736-KAM Document 94 Entered on FLSD Docket 09/02/2011 Page 6 of 23 
settled and was dismissed from the lawsuit. The remaining defendants later moved to compel 
disclosure of the settlement agreement. In denying the motion to compel, the Court recognized the 
strong public policy favoring settlements, and the need to encourage settlements by ensuring against 
"unnecessary intrusion" into "the bargaining table." Id. at 160. For this reason, the Court held, 
parties seeking discovery of inadmissible settlement negotiations must first make a "particularized 
showing of a likelihood that admissible evidence will be generated" by their discovery request: 
Given the strong public policy of favoring settlements and the congressional intent 
to further that policy by insulating the bargaining table from unnecessary intrusions, 
we think the better rule is to require some particularized showing of a likelihood that 
admissible evidence will be generated by the dissemination of the terms of a 
settlement agreement. Since the terms of settlement do not appear to be reasonably 
calculated to lead to discovery of admissible evidence and the defendants have not 
made any showing to the contrary, this justification for [discovery] must fail. 
Id.; accord Reist, 2010 WL 4940096 at *2 (recognizing the "chilling effect" that discovery can have 
on the willingness of parties to enter into settlement negotiations). 
Other than their conclusory statement during the August 12 hearing that the plea negotiations 
would be used against the government and not Mr. Epstein, the plaintiffs have not made any 
particularized showing to convince this Court that any admissible evidence would result from their 
discovery of the plea negotiations. Accordingly, their request for discovery of clearly inadmissible 
evidence should be denied. 
C. 
THE PLEA NEGOTIATIONS ARE IRRELEVANT BECAUSE THE PLAINTIFFS 
ARE NOT ENTITLED To INVALIDATE THE NON-PROSECUTION AGREEMENT 
Additionally, the purpose for which the plaintiffs seek the plea negotiation letters — to set 
aside the Non-Prosecution Agreement — is a remedy that, if granted, would violate the Constitution 
and the statutory rights of both the government and Mr. Epstein. It would also be extraordinarily 
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inequitable given that while the plaintiffs failed to urge that this Court resolve their Complaint as 
an exigent or emergency matter, Mr. Epstein served the entirety of a prison sentence that resulted 
from obligations imposed upon him by the Non-Prosecution Agreement. He also served the entire 
community control consecutive sentence, and pursuant to the Non-Prosecution Agreement, he made 
payments of huge sums of money to the attorney representative of certain claimants. Finally, Mr. 
Epstein settled cases because of waivers within the Non-Prosecution Agreement. 
Under the Crime Victims' Rights Act, neither Jane Doe I nor Jane Doe 2 can invalidate the 
Non-Prosecution Agreement. The Act expressly prohibits it: "Nothing in this chapter shall be 
construed to impair the prosecutorial discretion of the Attorney General or any officer under his 
direction." 18 U.S.C. § 3771(d)(6). 
Under the Crime Victims' Rights Act, neither Jane Doe I nor Jane Doe 2 can invalidate the 
Non-Prosecution Agreement. The Act expressly prohibits it: "Nothing in this chapter shall be 
construed to impair the prosecutorial discretion of the Attorney General or any officer under his 
direction." 18 U.S.C. § 3771(d)(6). 
The Act codifies the long-standing principle that "[t]he Attorney General and United States 
Attorneys retain broad discretion to enforce the Nation's criminal laws." United Stalest Armstrong, 
517 U.S. 456, 464 (1996). This is due in large part to the separation of powers doctrine. Id.; U.S. 
CONST. art. II, § 3. Whether to investigate possible criminal conduct, grant immunity, negotiate a 
plea, or dismiss charges, are all central to the prosecutor's executive function. United States'. 
Smith, 231 F.3d 800, 807 .(11th Cir. 2000). "The judiciary cannot interfere with a prosecutor's 
charging discretion, except in narrow circumstances where it is necessary to do so in order to 
discharge the judicial function of interpreting the Constitution." Id. And this Court has not been 
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