Jane Doe 3 v. Indyke et al

Filing 21

MEMO ENDORSEMENT on re: 20 Letter Response terminating 19 Letter Motion for Discovery. ENDORSEMENT: Plaintiffs represent that they are only seeking responses and objections to subpoenas, not production of documents. The recipients need not produce documents until further order. The Court expects that the experienced counsel on this case can work together to resolve their remaining issues. But if they can't, they can seek the Court's guidance. The Clerk of Court is directed to terminate the motion at Dkt. 54. SO ORDERED. (Signed by Judge Arun Subramanian on 5/9/2024) (vfr)

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in the class action against Indyke and Kahn in their individual capacities. Per that order, the parties
were to “negotiate an ESI order as appropriate, serve discovery demands, negotiate search terms
and custodians, and collect documents for production.” Instead of complying with the Court’s
order, however, Defendants have (i) failed to agree to draft ESI and confidentiality orders sent to
them on April 22, see Ex. A; (ii) delayed identifying a date for which they are available to negotiate
search terms and custodians, id.; and (iii) as explained below, are attempting to evade their
obligation to collect documents for production. Defendants now seek to impede discovery even
further by filing the instant motion to quash on the implausible (and unsupported) argument that
serving responses and objections to Rule 45 subpoenas is unduly burdensome.
Defendants Asserted that Richard Kahn’s Documents Are Only Within HBRK’s Control.
Quashing the HBRK subpoenas would completely cut off discovery into Richard Kahn’s
documents. In an email sent on March 9, 2023, concerning a Rule 45 subpoena served on Kahn,
his counsel (who is also his counsel in these cases) asserted that “Mr. Kahn does not have any
documents relating to his work for Jeffrey Epstein or entities owned by Epstein in his personal
capacity. Accordingly, all of his relevant documents are properly considered HBRK documents
and will be produced by HBRK.” Ex. C (excerpt of email chain between counsel in Jane Doe v.
JP Morgan Chase, 22 Civ. 10019 (JSR)). Because these cases concern Defendants’ (including
Kahn’s) participation in Jeffrey Epstein’s sex-trafficking enterprise, their refusal to begin
discovery into HBRK’s documents effectively overrules this Court’s order to “negotiate search
terms and custodians, and collect documents for production” for one of the two named Defendants.
Plaintiffs do not accept the proposition that Kahn and Indyke do not have the requisite
possession, custody, or control over documents they sent, received, or had access to while working
for the many Epstein-related entities they were involved with. But to even begin pealing back the
layers of Defendants’ corporate entity shell game (as applied to civil discovery), Plaintiffs need
formal written responses and the ability to confer over those responses and objections.
Defendants’ Burden Arguments Are Unsubstantiated and Lack Credibility.
Defendants assert that “non-parties should not be required to bear the costs and burden of
responding” because quashing the subpoenas “would potentially spare them unnecessary and
costly document reviews and productions.” Bensky Dkt. 54 at 2; Jane Doe 3 Dkt. 19 at 2. But any
argument concerning the “costs and burden” of “documents reviews or production” is overstated
given that Plaintiffs have made clear that they are only seeking written responses at this time. See
Ex. B at 1. Defendants’ argument that third parties should not be subjected to the burden of merely
responding to the subpoenas is wholly conclusory and falls far short of meeting their burden on a
motion to quash. Bamonte v. Charatan, 2023 WL 4201416, at *2 (S.D.N.Y. June 27, 2023) (“The
movant bears the burden of establishing undue burden.”). Serving responses and objections to
written discovery is routine and unlikely to generate significant costs. This is especially true here,
where each of the third parties received (and responded to) similar subpoenas just over a year ago.
Defendants’ counsel responded to subpoenas on behalf of the Epstein Estate, HBRK, Kahn,
and Indyke (as well as other Epstein-related corporate entities) during the class action cases
brought before Judge Rakoff against JP Morgan and Deutsche Bank. See Ex. C. At no point in
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those cases did counsel claim that merely responding to subpoenas would be unduly burdensome.
Given the substantial amount of work that Defendants’ counsel have already done on behalf of
Defendants and Epstein-related entities throughout the years, the assertion that it is unduly
burdensome to respond to written discovery is implausible and greatly exaggerated.
Any argument concerning burden with respect to the Bella Klein subpoenas is even less
credible and should be made by her instead of by Defendants based on speculation alone. On
March 1, 2023, Bella Klein (through the same counsel she retained here) also responded to
subpoenas seeking similar documents to those sought in these cases. See Composite Ex. D (Mar.
1, 2023, subpoena responses in JP Morgan and Deutsche Bank cases). She was fully able then to
respond to two separate subpoenas within the fourteen days Rule 45 provides. There is also no
reason to believe her responses would be burdensome at all given that in response to the prior
subpoenas she merely invoked her rights under the Fifth Amendment and the Act of Production
Privilege using the exact same wording in response to each request. Id.
For the foregoing reasons, the Court should deny Defendants’ motion to quash.

Sincerely,
/s/ Sigrid S. McCawley
Sigrid McCawley
Boies Schiller Flexner LLP
401 E. Las Olas Blvd. Suite 1200
Fort Lauderdale, FL 33316
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Counsel for Plaintiffs

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