In a Proceeding under the Crime Victims' Rights Act, Abuse Victims Can Discover Plea Agreement Negotiations Between Prosecutor and Abuser

Jane Doe v. United States, No. 13-12923, from SDFla

 Judge Pryor joined by Judge Martin and District Judge Honeywell.

Summary:  The United States Attorney’s Office for the SDFla investigated the sexual abuse of minors by Jeffrey Epstein.  The prosecutor agreed to a non-prosecution agreement with Mr. Epstein, but did not confer with the victims before doing so.  Two victims filed suit under the Crime Victims’ Rights Act, 18 U.S.C. § 3771, seeking to discover correspondence between the prosecutor and Mr. Epstein’s attorney concerning the agreement.  Mr. Epstein (which will be used as shorthand for “Mr. Epstein and his lawyers”) intervened in the suit, claiming that the correspondence was privileged.  The district court overruled the objection and ordered disclosure of the correspondence. 

The panel first concluded that it had jurisdiction over Mr. Epstein’s interlocutory appeal.  There are five exceptions to the rule that discovery orders are not appealable: (1) the Perlman doctrine; (2) the collateral-order doctrine, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); (3) certification by statute, 28 U.S.C. § 1292(b); (4) a petition for a writ of mandamus; and (5) an appeal of a contempt citation.  Perlman allows an intervenor to file an interlocutory appeal of an order denying a motion to quash a grand jury subpoena.  The panel held that the logic of the Perlman doctrine applied to this case: Mr. Epstein could not challenge a final judgment in this proceeding to remedy the disclosure of the plea negotiations.  Moreover, the victims’ petition, like a grand jury proceeding, was ancillary to a criminal investigation.

The panel then concluded that the correspondence was not privileged.  There was no privilege under Rule 410, because that rule governs the admissibility of plea negotiations against a defendant, not their discoverability.  Any work-product privilege was waived when Mr. Epstein voluntarily sent the correspondence to the government during plea negotiations.  There was also no common-law privilege.  The panel accordingly affirmed the district court’s disclosure order and lifted the stay of that order. 

Note: The USAO dropped the ball in this case.  They did not confer with the victims, even though the FBI had issued victim notification letters, and they did not even inform the victims of the non-prosecution agreement for at least nine months. Indeed, after the agreement was entered in September 2007, the USAO asked the victims to explain why federal charges should be brought in June 2008.