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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
CASE No. 08-80736-CIV-MARRA/JOHNSON 
JANE DOE 1 and JANE DOE 2, 
Plaintiffs, 
EXHIBIT A 
UNITED STATES OF AMERICA, 
Defendant. 
INTERVENOR JEFFREY EPSTEIN'S MOTION FOR A PROTECTIVE ORDER 
AND OPPOSITION TO MOTIONS OF JANE DOE I AND JANE DOE 2 FOR 
PRODUCTION, USE, AND DISCLOSURE OF PLEA NEGOTIATIONS 
Pursuant to Federal Rules of Evidence 410 and 501, Federal Rule of Criminal Procedure 11, 
and the Constitutional right to effective assistance of counsel, Jeffrey Epstein opposes the motion 
of Jane Doe 1 and Jane Doe 2 for disclosure of all the plea negotiation letters and cmails between 
his lawyers and federal prosecutors during the criminal investigation [DE 50 at 5]. Mr. Epstein also 
opposes the motion of Jane Doe 1 and Jane Doe 2 to use these plea negotiations as substantive 
evidence in their quest to invalidate the Non-Prosecution Agreement [DE 51], as well as their motion 
to disseminate the plea negotiations to the media [DE 51 at 7]. 
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 Janc Doe 1 and Jane Doe 2 already have 
remain confidential. Mr. Epstein adopts all the arguments advanced by proposed intervenors Black, 
Weinberg, and Lefkowitz in their motion to intervene and attached motion for a protective order [DE 
56], as well as during the August 12, 2011 hearing. 
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In further support of his position, Mr. Epstein submits this motion and memorandum 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 I l(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 II. 
Part II of this memorandum shows that Jane Doe 1 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 I Mezzanatto, 513 U.S. 196, 204 (1995) ("Rules 410 and 11(e)(6) 'creat[e], 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. 
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Finally, in response to the Court's question during the August 12, 2011 hearing, Part III 
establishes that Mr. Epstein has standing under Federal Rule of Criminal Procedure 6(e) to object 
to disclosure of matters occurring before the grand jury. 
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 plaintiffs 
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(f). 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 
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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 
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(e)(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). 
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Even though the plaintiffs claim that they would technically offer the 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 
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 1 I 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." Reistl. Source Interlink Co., 2010 WL 4940096 at *2 (M.D. Fla. Nov. 29, 
2010); Bottarol. 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 
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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 Bottaro sued a number of defendants for securities fraud. One defendant 
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. 
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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 
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 1 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(dX6). 
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 States. 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 Stalest 
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 
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discharge the judicial function of interpreting the Constitution." Id. And this Court has not been 
called upon to interpret the Constitution. 
Even in the case of In re Dean, 527 F.3d 391 (5th Cir. 2008), upon which the plaintiffs rely, 
the district court, after remand from the Fifth Circuit, denied the motion of the victims to invalidate 
the defendant's plea agreement as a remedy for the claimed violation of the Crime Victims' Rights 
Act. The court found that "[t]he purpose of the conferral right is not to give the victims a right to 
approve or disapprove a proposed plea in advance or to participate in plea negotiations." In re Dean 
on remand as United States'. BP Products North America, Inc., 610 F. Supp. 2d 655, 727 (S.D. 
Tex. 2009). Instead, "[tjhe purpose of the reasonable right to confer is for victims to provide 
information to the government, obtain information from the government, and to form and express 
their views to the government and court." Id. The district court concluded that the violations alleged 
by the victims did not provide a basis for rejecting the plea agreement. Id. at 726-27; see In re Acker, 
596 F.3d 370, 373 (6th Cir. 2010) (denying mandamus where petitioners sought to vacate plea 
agreement which made no provision for restitution in deference to pending civil litigation); United 
Stalest Aguirre-Gonzalez, 597 F.3d 46 (1st Cir. 2010) (relying on the "strong interest in the finality 
of criminal sentences" to reject mandamus under the Act where a defendant had pleaded guilty and 
had been sentenced more than two years earlier); see also United States'. Bedonie, 413 F.3d 1126, 
1129-30 (10th Cir. 2005) (district court had no authority under mandatory restitution act to reopen 
restitution proceedings after sentencing). 
More recently in the case of In re Peterson, No. 2:10-CV-298, 2010 WL 5108692 (N.D. Ind. 
Dec. 8, 2010), the district court denied reliefunder the Crime Victims' Rights Act before any charges 
were filed. The court recognized that the Act "guarantees crime victims a range of substantive and 
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participatory rights," but that "[w]hether charges might be filed and proceedings initiated in the 
future is a matter of prosecutorial discretion, and the [Act] expressly provides that [n]othing in this 
chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any office 
under his direction.'" M. at •2 (quoting 18 U.S.C. § 3771(dX6)). 
For these reasons, the Court should deny the motion of Jane Doe I and Jane Doe 2 to 
discover and use the plea negotiation letters as evidence. 
PART 11 
MR. EPSTEIN'S PLEA NEGOTIATIONS ARE PRIVILEGED 
AND NOT DISCOVERABLE UNDER RULE 501 
Jane Doe 1 and Jane Doe 2 are also not entitled to discovery or use of the plea negotiations 
because plea negotiations enjoy an evidentiary privilege, as recognized by the Supreme Court in 
United States'. Mezzanatto, 513 U.S. 196 (1995). 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. That Rule provides, in relevant part: 
Except as otherwise required by the Constitution of the United States or provided by 
Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory 
authority, the privilege of a witness, person, government, State, or political 
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. 
FED. R. EVID. 501. This Court "has the power to recognize new privileges, consistent with Rule 501 
of the Federal Rules of Evidence, in cases arising under federal law." In Re Air Crash Near Cali, 
Colombia, 959 F. Supp. 1529, 1533 (S.D. FL. Feb. 7, 1997). 
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A. 
"REASON AND EXPERIENCE" ARE THE TOUCHSTONES 
FOR ACCEPTING A COMMON LAW PRIVILEGE FOR PLEA NEGOTIATIONS 
Jaffee v. Redmond, 518 U.S. 1 (1996), is perhaps the leading case addressing Rule 501 and 
the common-law principles underlying the recognition of testimonial privileges. The case involved 
a police officer and the extensive counseling she received after a traumatic incident in which she shot 
and killed a man. She was sued by the man's estate, which demanded discovery of the notes taken 
by the clinical social worker who provided therapy. Id. at 5-6. The officer and the therapist objected 
and asserted that their sessions were privileged, but the district court disagreed. 
The Seventh Circuit reversed and concluded that "reason and experience," which are "the 
touchstone for acceptance of a privilege under Federal Rule of Evidence 501r compelled recognition 
of a privilege between patient and psychotherapist. Id. "Reason tells us that psychotherapists and 
patients share a unique relationship, in which the ability to communicate freely without fear of public 
disclosure is the key to successful treatment." Id. The Seventh Circuit also observed that even 
though a number of older federal decisions had previously rejected the privilege, things had changed 
in the intervening years and the "need and demand for counseling" had "skyrocketed during the past 
several years." Id. 
The Supreme Court accepted certiorari to resolve a conflict among the Circuits, and affirmed 
the finding of a privilege. The Court's analysis was grounded "in the light of reason and 
experience," which showed that a therapist's ability to help a patient "is completely dependent" upon 
the patient's "willingness and ability to talk freely." Id. at 10, quoting Advisory Committee's Notes 
to Proposed Rules, 56 F.R.D. 183, 242 (1972). The Court found that the psychotherapist-patient 
privilege is "rooted in the imperative need for confidence and trust" and that "the mere possibility 
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of disclosure may impede the development of the confidential relationship necessary for successful 
treatment." Id. at 10. 
FollowingJaffee, three important sets of decisions have recognized privileges under Rule 501 
to protect information that is exchanged in an environment that encourages candid disclosures, and 
that depends on this open exchange of information to promote significant private and public 
interests. They are: 
the decision of Judge Marcus, before he was appointed to the Eleventh Circuit, 
denying discovery and recognizing a privilege for airline pilots who report incidents 
and violations, In Re Air Crash Near Cali, Colombia, 959 F. Supp. 1529 (S.D. Fla. 
1997); 
the decision of Judge Vinson, now the Chief Judge in the Northern District of 
Florida, denying discovery and recognizing a privilege for a corporation that reports 
contamination and other environmental hazards and violations to the Florida 
Department of Environmental Regulation, Reichhold Chemicals, Inc.'. Textron, Inc., 
157 F.R.D. 522 (N.D. Fla. 1994); and 
a number of district court decisions denying discovery and recognizing a mediation 
privilege where litigants can "rely on the confidential treatment of everything that 
transpires during mediation ... ." Lake Utopia Paper Ltd.l. Connelly Containers, 
Inc., 608 F.2d 928 (2d Cir.1979); Folb I. Motion Picture Ind. Pension & Health 
Plans, 16 F. Supp. 2d 1164, 1173 (C.D.Ca. 1998); Sheldon I. Pennsylvania 
Turnpike Comm 'n, 104 F. Supp. 2d 511, (W.D. Pa. 2000); Microsoft Corporation. 
Suncrest Enterprise, 2006 WL 929257 (N.D. Cal. Jan. 6, 2006). 
1. 
Judge Marcus and The Common Law Privilege Of Pilots Reporting Incidents 
And Violations, In Re Air Crash Near Cali, Colombia, 959 F. Supp. 1529 (S.D. 
Fla. 1997) 
In re Air Crash Near Cali, Colombia involved the crash of an American Airlines plane as 
it arrived in Cali just before Christmas, 1995. The crash killed 159 passengers and crew members. 
One hundred and thirty lawsuits were consolidated before Judge Marcus, and a steering committee 
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was created to represent the plaintiffs. 959 F. Supp. at 1530. 
During discovery, American Airlines refused to produce a number of responsive documents, 
asserting that they were privileged because they were prepared pursuant to the American Airlines 
Safety Action Partnership Program, known as the ASAP program. The program was an initiative 
by the FAA, the Allied Pilots Association, and American Airlines. It was a "voluntary pilot 
self-reporting program designed to encourage pilots to report incidents and violations." Id. at 1531. 
The objectives of the ASAP program were "to identify and to reduce or eliminate possible flight 
safety concerns, as well as to minimize deviations from Federal Aviation Regulations." Id. 
Judge Marcus agreed that American Airlines had made "a • compelling argument for 
recognition of a limited common law privilege for the ASAP materials." Id. at 1533. Relying on 
Jaffee, Judge Marcus found that he had the ability "to recognize new privileges, consistent with Rule 
501 of the Federal Rules of Evidence, in cases arising under federal law." Id. He addressed the 
following four factors: 
First, the "private interests" involved — "in other words, whether dissemination of the 
information will chill the 'frank and complete disclosure of facts' shared in an 'atmosphere of 
confidence and trust."' Id. at 1533. Judge Marcus found that American Airlines, the pilots, and the 
FAA had an interest in air safety and in encouraging the flow of safety information. The FAA, as 
the regulatory body, also had an interest in being made aware of violations. Id. at 1534. 
Second, Judge Marcus considered the "public interests" furthered by the proposed privilege 
and found that there was a compelling public interest in improving the safety of commercial flights. 
Third, the "likely evidentiary benefit that would result from the denial of the privilege." Id. 
Judge Marcus did not find a benefit from denying the privilege. On the contrary, he agreed that 
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violations would be "kept secret if the pilots believed that their reports might be used in litigation 
or otherwise disseminated to the public." Id. Judge Marcus also agreed that failure to recognize the 
privilege would "reduce the willingness of pilots to report incidents" and would "seriously damage 
and probably terminate a uniquely successful safety program ... [which] relies on an assumption of 
strict confidentiality." Id. at 1534. He concluded that "without a privilege, pilots might be hesitant 
to come forward with candid information about in-flight occurrences, and airlines would be 
reluctant, if not altogether unwilling, to investigate and document the kind of incidental violations 
and general flight safety concerns whose disclosure is safeguarded by the ASAP program." Id. 
Finally, Judge Marcus warned that absent a privilege, "the prospect of ASAP reports being used by 
adverse parties in the course of litigation undoubtedly will affect the content, timeliness and candor 
of the reports submitted by its pilots." Id. 
Fourth, whether the privilege had been recognized by the states. Id. The Court was not aware 
of any state or federal court that had recognized the privilege claimed by American Airlines, but that 
did not dissuade him from finding that a privilege existed. 
With all these considerations in mind, Judge Marcus ruled that "[t]here is a genuine risk of 
a meaningful and irreparable chill from the compelled disclosure of ASAP materials in connection 
with the pending litigation." Id. at 1534. Likewise in Mr. Epstein's case, there is a genuine risk of 
a meaningful and irreparable chill from the compelled disclosure of plea negotiations in connection 
with the pending litigation. 
Significant private interests support a plea negotiations privilege. It cannot be denied that 
defendants, prosecutors, the court system, victims, and law enforcement agencies all have a 
legitimate interest that criminal cases or investigations resolve by pleas. Plea negotiations benefit 
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defendants by limiting their exposure to jail or other punishment; they benefit all the parties in the 
system by avoiding the many expenses associated with jury trials; they benefit the court by keeping 
the flow of its dockets and making judges available to handle matters that are proceeding to trial or 
that are contested; and they benefit prosecutors and law enforcement not only by freeing their time 
so that they can focus on contested matters, but also by allowing them to debrief defendants and 
gather information about criminal activity. 
The public interests in criminal cases resolving by way of plea negotiations also cannot be 
denied. The public has an interest in the finality of plea negotiations, in ensuring that the courts, 
prosecutors, and law enforcement agencies are available to dedicate their time to contested matters, 
and in information that may be provided by defendants that will help curb criminal activity in their 
communities. The public, as well as private victims and government entities, all have an interest in 
restitution. 
There are significant evidentiary consequences if the Court denies a privilege to plea 
negotiations. As with air safety violations that would be "kept secret if pilots believed their reports 
might be used in litigation," defendants and people under criminal investigation would not engage 
in plea negotiations and waive their Fifth Amendment rights if they believed that statements made 
during those negotiations could be used against them later in litigation with third parties. Candid 
discussions simply cannot take place if defendants fear that statements made during negotiations can 
be divulged to third parties in other proceedings and used to harm them, send them to prison, or 
invalidate their bargains years after they have served prison sentences and suffered all the 
consequences of their deals. Just as the work-product privilege is created, in part, to encourage 
lawyers to keep notes without fear of disclosure, a privilege for plea communications is necessary 
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to encourage lawyers to communicate, in writing, without fear that their proposals, submissions, 
arguments, analysis of the facts, or legal arguments will become the grist of later civil litigation to 
the potential detriment to the client. 
Few if any lawyers would engage in candid and open discussions with a prosecutor if their 
statements could later be used against their clients. The ethical and constitutional obligations we 
now have to initiate and engage in plea negotiations would be terribly at odds with any rule that 
made those negotiations public and admissible in evidence to be used as ammunition to harm our 
clients. 
2. 
Chief Judge Vinson and the Common Law Privilege Of Reporting 
Environmental Hazards and Violations, Reichhold Chemicals, Inc.'. Textron, 
Inc., 157 F.R.D. 522 (N.D. Ha. 1994) 
Reichhold Chemicals involved a Consent Order between Reichhold and the Florida 
Department of Environmental Regulation. The Order obligated Reichhold "to investigate and 
remediate the contamination of groundwater on and under, and storm water runoff from, an industrial 
plant site it owns in Pensacola, Florida." 157 F.R.D. 523-24. 
Reichhold brought an action against former owners of the plant site, to recover some of the 
cost of remediating the land. The defendants sought reports that Reichhold had prepared describing 
possible environmental violations. Reichhold asserted that these documents were protected by "the 
privilege of self-critical analysis." Id. at 524. This privilege, "also known as the self-evaluative 
privilege," had been adopted in other jurisdictions, but at the time, it presented an issue of first 
impression to Chief Judge Vinson. He ruled in favor of Reichhold and found that the privilege 
allows individuals and companies to candidly assess their compliance with legal requirements 
without creating evidence to be later used against them by their adversaries: 
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The self-critical analysis privilege has been recognized as a qualified privilege which 
protects from discovery certain critical self-appraisals. It allows individuals or 
businesses to candidly assess their compliance wi In regulatory and legal requirements 
without creating evidence that may be used against them by their opponents in future 
litigation. The rationale for the doctrine is that such critical self-evaluation fosters the 
compelling public interest in observance of the law. 
Id. at 524. Judge Vinson agreed with Reichhold that the privilege was necessary to protect an 
organization or individual from the Hobson's choice °feistier undertaking an aggressive investigation 
and correcting dangerous conditions, "thereby creating a self-incriminating record that may be 
evidence of liability," or "deliberately avoiding making a record on the subject (and possibly leaving 
the public exposed to danger) in order to lessen the risk of civil liability." Id. 
In recognizing the privilege, Judge Vinson relied on Bredice'. Doctor's Hospital, Inc., 50 
F.R.D. 249 (D.D.C.1970), the first case to find a common law self-evaluation privilege. There, the 
hospital held staff meetings where the professional staff evaluated the treatment provided to patients. 
In a medical malpractice action, the estate of Bredice sought the minutes of the hospital's staff 
meetings where Bredice's treatment or death were discussed. The court denied the discovery, noting 
that "review of the effectiveness and results of treatments were valuable in improving the quality of 
health care available to the general public," and that "physicians would be unwilling to candidly 
critique the actions of their colleagues if such evaluations were subject to discovery and use as 
evidence in a subsequent malpractice action." Id. at 525. 
3. 
The Common Law Mediation Privilege 
As is true in the case of plea negotiations, it seems self-evident that no system of mediation 
can function if parties fear that statements made and documents submitted in furtherance of 
mediation create a trail of incrimination that cah later be used against them. "[C]ounsel, of necessity, 
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[would] feel constrained to conduct themselves in a cautious, tight-lipped, noncommittal manner 
more suitable to poker players in a high-stakes game than adversaries attempting to arrive at a just 
solution of a civil dispute." Lake Utopia Paper Ltd.'. Connelly Containers, Inc., 608 F.2d 928 (2d 
Cir.1979). 
Lake Utopia involved the Second Circuit's Civil Appeals Management Plan, which called 
for parties to engage in a conference before oral argument, to hopefully settle their dispute. The 
Circuit adopted this mediation program to encourage the parties to settle, and to expedite the 
processing of civil appeals. Id. at 929. 
Counsel for the parties in Lake Utopia met pursuant to the program in an attempt to settle. 
The appellee later disclosed to the Court certain admissions made during the conference which 
showed that the appeal was frivolous. Rather than embrace this information, the Court chastised the 
appellee for disclosing it, holding that the purpose of the conference program was to encourage the 
parties to settle, and that the program would not function if statements made during the conference 
were later used against the parties. "It is essential to the proper functioning of the Civil Appeals 
Management Plan that all matters discussed at these conferences remain confidential. The guarantee 
of confidentiality permits and encourages counsel to discuss matters in an uninhibited fashion often 
leading to settlement . 
." Id. at 930. 
Ten years later, in Folb'. Motion Picture hid. Pension & Health Plans, 16 F. Supp. 2d 1164, 
(C.D.Ca. 1998), the district court in California became the first federal court to adopt the mediation 
privilege as federal common law under Rule 501. Relying on Lake Utopia Paper as well as a 
number of other decisions addressing the confidentiality of settlement negotiations, Folb held that 
"the need for confidentiality and trust between participants in a mediation proceeding is sufficiently 
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imperative to necessitate the creation of some form of privilege." Id. at 1175. The court emphasized 
that the mediation privilege is particularly important because federal courts rely on mediation to 
manage their dockets: "This conclusion takes on added significance when considered in conjunction 
with the fact that many federal district courts rely on the success of ADR proceedings to minimize 
the size of their dockets." Id. 
More recently in Sheldonel. Pennsylvania Turnpike Comm'n, 104 F. Supp. 2d 511, (W.D. 
Pa. 2000), the court relied on Jaffee and on Judge Marcus' decision in In re Air Crash Near Cali, 
Colombia to hold that all mediation documents and mediation communications are privileged and 
not subject to discovery. Mediation "afford[s] to litigants an opportunity to articulate their 
position[s] and to hear, first hand, both their opponent's version of the matters in dispute and a 
neutral assessment of the relative strengths of the opposing positions." Id. at 513. Without a 
mediation privilege, "parties and their counsel would be reluctant to lay their cards on the table so 
that a neutral assessment of the relative strengths and weaknesses of their opposing positions could 
be made." Id. This, of course, assumes that parties "would even agree to participate in the mediation 
process absent confidentiality." Id. Confidentiality is therefore "essential to the mediation process," 
and it is "beyond doubt that the mediation privilege is rooted in the imperative need for confidence 
and trust." Id. at 514. 
No real distinction exists between the need to keep mediation confidential and the need to 
keep plea negotiations confidential. Both processes, and the goals they serve, are essentially 
identical. Both processes aim at encouraging settlement and compromise. Both processes depend 
on parties speaking candidly about the strengths and weaknesses of their positions. And in both 
processes, it would be manifestly unfair to require that parties attempt to settle their disputes in this 
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fashion, only to later allow third parties to use their words as a weapon against them. 
B. 
THE COURT SHOULD RECOGNIZE A PLEA NEGOTIATIONS PRIVILEGE 
The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his 
or her situation in order to explore the possibility of disposing of the case through a consensual 
arrangement." United States'. Herman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived 
from "the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must 
be free to negotiate without fear that his statements will later be used against him." Id. at 796. The 
legislative history, too, "shows that the purpose of Fed.R.Ev. 410 and Fed.R.Crim.P. 1 I (c)(6) is to 
permit the unrestrained candor which produces effective plea discussions between the . . . 
government and the . . . defendant." 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 (February 1978) (emphasis added).' 
For these reasons, criminal defense lawyers negotiate with prosecutors in an environment of 
confidentiality, fostered by the protections of Rules 4 I 0 and I I. These rules encourage a process 
of searching and honest disclosures, and parties expect that their negotiations, and the information 
they exchange, will be protected from future use by an adversary. And because criminal defense 
lawyers arc required, by ethical and constitutional considerations, to engage in plea negotiations to 
discharge their duty to represent the client's best interest, they do so with the well-founded 
expectation that communications made during those negotiations will not later be used to harm the 
client. 
Rule 11(0 was formerly Rule I 1(e)(6), which read almost identical to Rule 410. 
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1. 
The Court Should Recognize A Plea Negotiations Privilege Because Plea 
Negotiations Are Critical To The Criminal Justice System 
The Supreme Court has recognized that "Rules 410 and 11(eX6) 'creat[e], in effect, a 
privilege of the defendant...."' Mezzanatto, 513 U.S. at 204.This privilege encourages disposition 
of criminal cases by plea agreement, which is essential to the administration of justice: 
The disposition of criminal charges by agreement between the prosecutor and the 
accused, sometimes loosely called "plea bargaining," is an essential component of 
the administration of justice. Properly administered, it is to be encouraged. If every 
criminal charge were subjected to a full-scale trial, the states and the federal 
government would need to multiply by many times the number ofjudges and court 
facilities. 
Santobellol. New York, 404 U.S. 257, 260 (1971). "[T]he fact is that the guilty plea and the often 
concomitant plea bargain are important components of this country's criminal justice system. 
Properly administered, they can benefit all concerned." Blackledge I. Allison, 431 U.S. 63, 71 
(1977). 
Those sentiments are just as true today. The Bureau of Justice Statistics of the Department 
of Justice reports that in 2005, 96.1% of federal criminal cases were resolved by way of a plea 
bargain. www.oia.usdoi.gov/bis/pub/htmlifisst/2005/fis05st.htm 
That today's justice system 
depends on plea negotiations is a monumental understatement. 
2. 
The Court Should Recognize A Plea Negotiations I'rivilege Because Plea 
Negotiations Are Critical To The Effective Representation of Counsel 
Whether to negotiate a plea or contest a criminal charge "is ordinarily the most important 
single decision in any criminal case." Borial. Keane, 99 F.3d 492 (2d Cir. 1996). In the age of the 
Sentencing Guidelines, with the draconian sentences called for in federal criminal cases, minimum 
mandatories, and the abolition of parole, engaging in meaningful and effective plea negotiations is 
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