EFTA00723941

IN 
THE 
CIRCUIT 
COURT 
OF 
THE 
FIFTEENTH JUDICIAL CIRCUIT IN AND FOR 
PALM BEACH COUNTY, FLORIDA 
B.B., 
Plaintiff, 
v. 
JEFFREY EPSTEIN, 
Defendant. 
CASE NO. 502008CA037319XMCMB AB 
NON-PARTY TOWN OF PALM BEACH POLICE OFFICERS' 
MOTION TO QUASH SUBPOENAS AND/OR MOTION FOR PROTECTIVE ORDER 
Non-parties, former Town of Palm Beach Chief of Police Michael Reiter, Captain 
George Frick, Detective Joseph Recarey, Detective Michael Dawson, Detective 
Michelle Pagan, and the Town of Palm Beach Police Department Record Custodian 
(collectively "Town of Palm Beach Police Officers"), hereby move to quash the 
subpoena or for a protective order pursuant to Florida Rule of Civil Procedure 1.280(c) 
directing that discovery sought by the civil subpoenas for deposition issued by Plaintiff, 
B.B., and the cross-notices with subpoenas for deposition duces tecum issued by 
Defendant, JEFFREY EPSTEIN, in the underlying action, attached as Composite 
Exhibit A, not be had or that the discovery may be had only on specified terms. In 
further support, the Town of Palm Beach Police Officers state as follows: 
SUMMARY OF ARGUMENT 
At issue here is.whether certain documents and associated testimony sought by 
Mr. Epstein, including personal cell phone records, calendars and diaries and 
surveillance information, constitute public records subject to disclosure or are statutorily 
EFTA00723941

protected from disclosure under Florida's Public Records Law, Section 119.071 Fla. 
Stat., and if the documents and testimony sought constitute private records of the 
individual officers not otherwise statutorily protected, whether Mr. Epstein's requests are 
improper as not likely to lead to the discovery of admissible evidence and overly broad. 
The Town of Palm Beach Police Officers respectfully submit that the Epstein 
duces tecum constitutes a fishing expedition into the private and confidential matters of 
these non-parties that do not constitute matters of public record under the Florida Public 
Records Law and bear little relationship to the issues in this civil litigation. The duces 
tecum is intended solely to harass these non-parties in advance of their depositions. As 
set forth in detail below, the Epstein duces tecum seeks a broad range of statutorily 
protected information not just regarding these law enforcement officers and the crime 
victims associated with Mr. Epstein's investigation, but a broad range of protected 
information regarding other crime investigations undertaken by the Town over a 5-year 
period. 
BACKGROUND 
By this and related suits,' an alleged minor victim of lewd acts and/or prostitution 
has filed a civil suit against Mr. Epstein for sexual battery and intentional infliction of 
emotional distress. Mr. Epstein was the subject of an investigation by the Town of Palm 
Beach Police Department in 2005 and 2006, which investigation resulted in the 
issuance of a Probable Cause Affidavit for Mr. Epstein and others in May 2006. 
1 A number of related cases are pending against Mr. Epstein in Florida state and federal courts. In May 
2009, the related federal court cases were consolidated before Judge Kenneth Marra for discovery and 
procedural purposes. Judge Marra directed that witnesses common to the multiple cases would be 
deposed only once. Undersigned counsel understands from conversations with counsel for Mr. Epstein 
and the Plaintiff In this case that counsel in the related state court actions have acted in accordance with 
Judge Marra's order to depose witnesses common to the state and federal cases only once. 
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Following the issuance of the Probable Cause Affidavits, the Town's investigation 
ceased and the matter was referred to the appropriate state and federal law 
enforcement authorities. Mr. Epstein ultimately pled guilty and was sentenced by the 
State Attorney to incarceration for a period of 12 months in county jail and designated a 
sex offender. 
Counsel for Plaintiff first subpoenaed the Town of Palm Beach Police Officers for 
deposition in October 2009. Those subpoenas did not include any duces tecum. 
Thereafter, Epstein's counsel cross-noticed the depositions and served the Town of 
Palm Beach Police Officers with subpoenas duces tecum ("the Epstein duces tecum"). 
With the exception of the Epstein duces tecum issued to the Records Custodian, which 
additionally seeks state grand jury testimony (No. 7) and personnel records of Chief 
Reiter and Detectives Recarey, Pagan and Dawson (No. 19), the Epstein duces tecum 
served on the Town of Palm Beach Police Officers are identical. 
Epstein's extremely broad document requests to the Town of Palm Beach Police 
Officers are detailed in more than twenty (20) separate requests, many with multiple 
subparts. Among other things, the Epstein duces tecum requests the following: 
• 
Video and Physical Surveillance: Any and all logs, pictures, videos, 
digital information, reports, memoranda or notes, and any record of 
expenditure, which relate to video or physical surveillance of Mr. Epstein, 
his residence or his visitors (or, with regard to physical surveillance, any 
individual believed to be a potential witness or co-conspirator) from 
January 1, 2004 to the present (Nos. 11-12); 
• 
Cell Phone Records: All cell phone records, both official cell phone and 
personal cell phone, used by the Police Officers from January 1, 2004 
through the present (No. 15); 
• 
Calendars or Diaries: All calendars or diaries, electronic or hard-copy 
kept from October 1, 2004 through and including today (No. 16). 
3 
EFTA00723943

LEGAL ARGUMENT 
Florida Rule of Civil Procedure 1.280(c) allows a person from whom discovery is 
sought to move for an order to protect that person from annoyance, oppression or 
undue burden by directing "(1) that the discovery not be had; (2) that the discovery may 
be had only on specified terms and conditions .... that certain matters not be inquired 
into, or that the scope of the discovery be limited to certain matters 
 Rule 1.280(b)(1) 
provides that parties "may obtain discovery regarding any matter, not privileged, that is 
relevant to the subject matter of the pending action. . . ." As federal courts have 
observed in construing identical language under the Federal Rules of Civil Procedure, 
"requested information is not relevant to 'subject matter involved' in the pending action if 
the inquiry is based on the party's mere suspicion or speculation." Micro Motion. Inc. v. 
Kane Steel Co.. Inc., 894 F.2d 1318, 1325-26 (Fed. Cir. 1990).3
"A trial court has authority to prevent discovery which it believes is a mere fishing 
expedition calculated for harassment." Sugarrnill Woods Civic Association. Inc. v. 
Southern States Utilities, 687 So. 2d 1346, 1351 (Fla. 1st DCA 1997). Where it has 
been affirmatively established that the discovery sought is neither relevant nor will lead 
to the discovery of relevant information, a trial court has discretion to deny the irrelevant 
discovery. Allstate Insurance Company v. Langston, 655 So. 2d 91, 95 (Fla. 1995); 
Residence Inn by Marriott v. Cecile Resort, Ltd., 822 So. 2d 548, 550 (Fla. 5th DCA 
2002) (agreeing that carte blanche discovery of material is impermissible and noting 
that the record was insufficient regarding the relevancy of the requested documents). 
3 Florida courts look to the federal rules and decisions for guidance in interpreting Florida's civil 
procedure rules* so as to harmonize the Florida and federal rules. Glenesole Ship Momt. v. Leondakos 
602 So.2d 1282, 1283-84 (Fla. 1992). 
4 
EFTA00723944

A. 
Information Regarding Crime Victims; Victims of Sexual Offenses; 
Minor Victims 
As a threshold matter, the Town states that in accordance with its obligations 
under Section 119.07 of the Florida Public Records Law, any documents and testimony 
provided in response to the Epstein duces tecum will be redacted and/or limited to 
protect those matters excepted from disclosure including, but not limited to, the home 
addresses and telephone numbers of the law enforcement personnel and any 
identifying information regarding the victims. Such redaction is necessary because of 
the broad range of criminal intelligence and investigative information regarding minor 
victims of sexual offenses under Florida Statutes Chapter 794 and/or 800 sought by the 
Epstein duces tecum. Such information is carefully protected under the Public Records 
Law. Fla. Stat. § 119.071(2)0) (excepting from disclosure any document that reveals 
the identity, home or employment telephone number, home or employment address, or 
personal assets of the victim of a crime, including the crime of sexual battery, and 
identifies that person as the victim of a crime); Fla. Stat. § 119.071(2)(h)1.b (excepting 
any information which may reveal the identity of a person who is a victim of a sexual 
offense, including a sexual offense proscribed in Chapters 794 and 800). 
Likewise, the Town of Palm Beach Police Officers will not provide testimony or 
documents that reflect their own exempted personal information including their home 
addresses, telephone numbers and social security numbers. Chapter 119.071 of the 
Florida Public Records Law specifically exempts from disclosure personal information 
belonging to law enforcement personnel and their families as well as personal 
information for crime victims, including minor victims and victims of sexual offenses. 
"The home addresses, telephone numbers, social security numbers and photographs of 
5 
EFTA00723945

active or former law enforcement personnel" are exempt from statutory disclosure 
provisions. Fla. Stat. § 119.071(4)(d)1.a; Atty. Gen. Op. 2007-21 (Apr. 25, 2007) (sworn 
officers of a police department fall within this exemption as "law enforcement 
personnel"). Along with the places of employment, the same information is protected 
relative to the spouses and children of such law enforcement personnel. 
B. 
Private or Personal Information Belonging To the Town of Palm 
Beach Police Officers 
The Epstein duces tecum seeks a number of documents including all cell phone 
records, calendars and diaries used or created by the Town of Palm Beach Police 
Officers from January 1, 2004 to the present. These requests clearly encompass 
personal records not covered by the Public Records Law. Moreover, the requests cover 
a five-year time period, are not limited in any way to matters involving Mr. Epstein and 
are therefore overly broad and not likely to lead to the discovery of admissible evidence. 
1. 
Personal Calendars and Diaries (Request No. 16) 
Mr. Epstein is not entitled to obtain "[a]lt calendars or diaries" kept by the Town of 
Palm Beach Police Officers from January 1, 2004 to the present because these 
documents are not public records subject to disclosure and because these records may 
contain statutorily excepted information regarding the law enforcement personnel 
themselves and other criminal investigations. Section 119.011(1), Florida Statutes, 
defines "public records" to include: 
All documents, papers, letters, maps, books, tapes, 
photographs, films, sound recordings, data processing 
software, or other material, regardless of the physical form, 
characteristics, or means of transmission, made or received 
pursuant to law or ordinance or in connection with the 
transaction of official business by any agency. 
(emphasis added) 
6 
EFTA00723946

Documents and other information that is not "made or received" in connection with the 
"transaction of official business" are not public records subject to disclosure. Times 
Publ'q Co. v. City of Clearwater, 830 So. 2d 844, 847 (Fla. 2d DCA 2002) (holding 
private or personal e-mails stores in government computers do not automatically 
become public records). 
Personal calendars and diaries do not constitute public records because they are 
not actions of government, but merely personal notes or work papers created for the 
convenience of the individual keeping the calendar. Florida courts have consistently 
held that under Chapter 119, public employees' notes to themselves and designated for 
their own personal use in remembering certain things do not fall within the definition of 
"public record." The Justice Coalition v. First DCA Nominating Comm'n, 823 So. 2d 
185, 192 (Fla. 1st DCA 2002) (citing Lopez v. State, 696 So. 2d 725 (Fla. 1997); Times 
Pub. Co. v. City of St. Petersburg 558 So. 2d 487, 491-92 (Fla. 2d DCA 1990) (notes 
which "serve no governmental function" but are "merely the personal tools of 
recollection of the writer" are not public records). As one court has observed, 
... the cases consistently hold that personal notes, as well as telephone 
messages and daily appointment calendars are not public records. This is 
because they are generally created solely for the individual's convenience 
or to refresh the writers memory, are maintained in a way indicating a 
private purpose, are not circulated or intended for distribution within 
agency channels, are not under agency control, and may be discarded at 
the writers sole discretion. 
Yacobellis v. City of Bellingham, 780 P,2d 272, 275-76 (Wash. App. 1989) (collecting 
cases). See also Bur. of Nat'l Affairs v. U.S. Dep't. of Justice, 742 F.3d 1484 (D.C. Cir. 
1984) (holding that personal appointment materials, such as calendars and daily 
agendas for the convenience of Assistant Attorney General, are not agency records 
7 
EFTA00723947

under the Freedom of Information Act); Intl Union, United Auto., Aerospace & 
Agricultural Implement Workers of Am. v. Voinovich, 654 N.E.2d 139, 14243 (Ohio 
App. 1995) (holding governor's personal calendars and appointment books were not 
"public records" subject to disclosure under public records statute where calendars and 
appointment books were created and maintained solely for governor's personal 
convenience, were not circulated within office for any official purpose, were not under 
control of governors office, could be discarded at any time, and did not serve to 
document any official activities or functions of governor)• Courier-Journal v. Jones, 895 
S.W.2d 6 (Ky. App. 1995) (same). 
2. 
Cellular Telephone Records (Request No. 15) 
Mr. Epstein's request for "Ia]ll cell phone records" from 2004 to the present Is 
similarly improper as it not only seeks private, non-public records, but statutorily 
protected information regarding the law enforcement officers who made the calls and 
the persons to whom calls were made including, but not limited, to family members, 
crime victims and confidential informants. As with personal or private e-mails stored in 
government computers, private phone calls that were not created or received in 
connection with official business do not become public records simply because they are 
made on a government issued telephone. See Media Gen'l Operation, Inc. v. Feeney, 
849 So. 2d 3 (Fla. 1st DCA 2003) (private or personal cellular telephone calls of five staff 
employees of House of Representatives were not public records); Times Public' Co., 
830 So. 2d at 847. See also State v. Ohio Atty. Gen., 910 N.E.2d 504, 677-78(Ohio Ct. 
App. 2009) (holding cell phone number of state trooper was not a "public record" subject 
to disclosure under public records act); Gannett N.J. Partners v. Ctv. of Middlesex, 877 
8 
EFTA00723948

A.2d 330 (N.J. Super. Ct. App. Div. 2005) (finding news organization not entitled to 
disclosure of the telephone billing records of county officials under the state's open 
public records act, observing that public officials and persons they talk to have a right to 
confidentiality, public records act excepted from "public records" the "unlisted telephone 
number" of any person and there was no practical way to prevent disclosure of such 
numbers, and voluminous request for 12 months worth of records would disrupt agency 
operations). 
C. 
Surveillance Techniques, Procedure or Personnel 
The Town of Palm Beach Police Officers do not dispute that if they possessed 
any surveillance tapes or photographs of Mr. Epstein during the time of the investigation 
in 2005 and 2006, which they do not, that such evidence may be subject to disclosure if 
it did not identify the victims of contain any other statutorily protected information. 
However, Mr. Epstein is not entitled to any testimony or documents regarding the 
techniques, procedure or personnel involved in any video or physical surveillance of Mr. 
Epstein. 
See Epstein duces tecum, Nos. 11-12. 
Any information revealing law 
enforcement surveillance techniques, procedures or personnel is clearly exempt from 
public inspection under the Public Records Law. Fla. Stat. §119.071(2)(d), referring to 
Section 24(a), Art. I, Fla. Const. 
D. 
Epstein's Requests are Unduly Burdensome 
Finally, even if subject to disclosure under the Public Records Law, Mr. Epstein's 
request for "[a]ll cell phone records" and "Nil calendars and diaries", whether in hard-
copy or electronic format, for the Town of Palm Beach Police Officers for a 5-year 
period is not only overly broad and not likely to lead to the discovery of admissible 
9 
EFTA00723949

evidence, it is unduly burdensome. In addition to the time needed to initially gather 
these records, considerable effort would be required to review them to determine 
whether they contain statutorily protected information excepted under Section 119.071 
of the Public Records Law and to thereafter redact that information in order to protect 
the identities of crime victims, undercover personnel, confidential informants, etc. which 
bear absolutely no relation to this case and are entitled to have their privacy protected. 
The Town of Palm Beach Police Officers respectfully request that should the Court 
overruled its other objections to the requested discovery, that they be given the 
opportunity to provide evidence in support of their claim of undue burden. 
WHEREFORE, the Town of Palm Beach Police Officers respectfully request that 
the Court enter an Order pursuant to Florida Rule of Civil Procedure 1.280(c) directing 
that the Epstein duces tecum be quashed as set forth herein and that the Court grant 
the Town of Palm Beach Police Department all other relief deemed just and proper 
under the circumstances. 
10 
EFTA00723950

I HEREBY CERTIFY that a true copy of the foregoing instrument has been 
furnished by facsimile and United States mail to Theodor J. Leopold, Esquire and 
Spencer T. Kuvin, Esquire, Leopold-Kuvin, P.A., 2925 PGA Boulevard, Suite 200, 
Palm Beach Gardens, Florida 33410; Jack Alan Goldberger, Esquire, Atterbury 
Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400, West Palm Beach, 
Florida 33401-5012; and Robert D. Critton, Jr., Esquire, Burman, Critton, Luttier & 
Coleman, LLP, 515 North Flagler Drive, Suite 400, West Palm Beach, Florida 33401, 
this 20th day of November, 2009. 
JONES, FOSTER, JOHNSTON & STUBBS, 
P.A. 
505 South Flagler Drive, Suite 1100 
Post Office Box 3475 
West Palm Beach. Florida 33402-3475 
Telephone* 
Facsimile: 
By 
John C. Randolph 
I ' a Bar 
C:\Documents and Settings)SSM.JEJS_DOMAIMLoc.al Settings\Temporary Internet Files\ OLK3)18V6665-motion 
protective order (2).0OC 
11 
EFTA00723951