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1 as a shield against the plaintiffs that he was supposed to make 
2 restitution for. 
3 
And, certainly, he can take my client's depo. He's 
4 done extensive discovery in the state court case -- very 
5 intrusive, I might add. And we don't care, because we can win 
6 this case with the prosecution agreement or without the 
7 prosecution agreement. We are ready to go forward. 
8 
THE COURT: You're not going to assert to the United 
9 States Government that what he's doing in defending the case is 
10 a violation for which he should be further prosecuted? 
11 
MR. GARCIA: Absolutely not. 
12 
THE COURT: Anyone else for the plaintiffs? 
13 
MR. HOROWITZ: Judge, Adam Horowitz, counsel for 
14 plaintiffs Jane Doe 2 through 7. 
15 
I just wanted to address a point that I think you've 
16 articulated it. I just want to make sure it's crystal clear, 
17 which is that we can't paint a broad brush for all of the 
18 cases. 
19 
The provision relating to Mr. Epstein being unable to 
20i contest liability pertains only to those plaintiffs who have 
21j chosen as their sole remedy the federal statute. My clients, 
ane Due 2 through 7, helve elecued to--bring -additional cause 
23 of action, and it's for that reason we were silent when you 
24i said does anyone here find Mr. Epstein to be in breach of the 
25 non-prosecution agreement. That provision, as we understand 
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1 it, it doesn't relate to our clients. 
2 
THE COURT: Okay. But, again, you're in agreement 
3 with everyone else so far that's spoken on behalf of a 
4 plaintiff that defending the case in the normal course of 
5 conducting discovery and filing motions would not be a breach? 
6 
MR. HOROWITZ: Subject to your rulings, of course, 
7 yes. 
8 
THE COURT: Thank you. 
9 
Anyone else have anything to say from the plaintiffs? 
10 
Ms. Villafana, if you would be so kind as to maybe 
11 help us out. I appreciate the fact that you're here, and I 
12 know you're not a party to these cases and under no obligation 
13 to respond to my inquiries. But as I indicated, it would be 
14 helpful for me to understand the Government's position. 
15 
MS. VILLAFANA: Thank you, Your Honor. And we, of 
16 i, course, are always happy to try to help the Court as much as 
17 possible. But we are not a party to any of these lawsuits, and 
18 in some ways we are at a disadvantage because we don't have 
19 access. My access is limited to what's on Pacer. So I don't 
20 really know what positions Mr. Epstein may have taken either in 
21 correspondence or in discovery responses that aren't filed in 
Labe fale.  
23 
But your first order was really just what do you think 
24 about a stay, and then the second order related to this hearing 
2Sj and asked a much more specific question, which is whether we 
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1 believe that Mr. Epstein's defense was a breach of the 
2 agreement. 
3 
And I've tried to review as many of the pleadings as 
4 possible. As you know, they're extremely voluminous. And I 
5 haven't been through all of them. But we do believe that there 
6 has been a breach in the filing that Mr. Josefsberg referred 
7 to, and contrary to Mr. Critton, we do understand that we have 
8 an obligation to provide notice, and we are providing notice to 
9 Mr. Epstein today. 
10 
The pleading that we found to be in breach -- the 
11 non-prosecution agreement, sought to do one thing, which was to 
12 place the victims in the same position they would have been if 
13 Mr. Epstein had been convicted of the federal offenses for 
14 which he was investigated. 
15 
And that if he had been federally prosecuted and 
16 convicted, the victims would have been entitled to restitution, 
17 regardless of how long ago the crimes were committed, 
18 regardless of how old they were at the time, and how old they 
19 are today, or at the time of the conviction. 
20 
And it also would have made them eligible for damages 
21 under 2255. 
22- 
- And-s 
r-our- hoper Was 
t- we-c 
23 a system that would allow these victims to get that restitution 
24 without having to go through what civil litigation will expose 
25 them to. 
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1 
You have a number of girls who were very hesitant 
2 about even speaking to authorities about this because of the 
3 trauma that they have suffered and about the embarrassment that 
4 they were afraid would be brought upon themselves and upon 
5 their families. 
6 
So we did through the non-prosecution agreement tried 
7 to protect their rights while also protecting their privacy. 
8 So, pursuant to the non-prosecution agreement -- on the other 
9 hand, we weren't trying to hand them a jackpot or a key to a 
10 bank. It was solely to sort of put them in that same position. 
11 
So we developed this language that said if -- that 
12 provided for an attorney to represent them. Most of the 
13 victims, as you know from the pleadings, come from not wealthy 
14 circumstances, may not have known any attorneys who would be in 
15 a position to help them. 
16 
So we went through the Special Master procedure that 
17 resulted in the appointment of Mr. Josefsberg, and the goal was 
18 that they would be able to try to negotiate with Mr. Epstein 
19 for a fair amount of restitution/damages. And if Mr. Epstein 
20 took the position, which apparently he has, which is that the 
21 $50,000 or $150,000 floor under 2255 also would be a cap. That 
22 if they were to proceed to file suit in Federal Court to get 
23 fair damages under 2255, Mr. Epstein would admit liability, but 
24 he, of course, could fight the damages portion, which means 
25 that, of course, he would be entitled to depositions; of 
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1 course, he would be entitled to take discovery, and we don't 
2 believe that any of that violates the non-prosecution 
3 agreement. 
4 
The issue with the pleading that he filed, the motion 
5 to dismiss the case, I believe it's Jane Doe 101, represented 
6 by Mr. Josefsberg, is that that is a case that was filed 
7 exclusively under 18 U.S.C., Section 2255. She met that 
8 requirement. Mr. Epstein is moving to dismiss it, not on the 
9 basis of damages, he is saying that he cannot be held liable 
10 under 2255 because he was not convicted of an offense. 
11 
The reason why he was not convicted of an offense is 
12 because he entered into the non-prosecution agreement. So that 
13 we do believe is a breach. 
14 
The issue really that was raised in the motion to stay 
15 and that I addressed in our response to the motion to stay is 
16 that Mr. Epstein's -- Mr. Epstein wants to stay the litigation 
17 in order to leave, in order to sort of attack the cases of the 
18 victims whether they are fully within the non-prosecution or 
19 not, non-prosecution agreement or not, and leave the Government 
20 without a remedy if he does, in fact, breach those terms. And 
21 that is why we opposed the stay. 
-THE-eOUR-T-r---I-Lnot—sure-what---yotr-mearby-that---lazt---
23 statement. 
24 
MS. VILLAFANA: Well, because this issue related to 
25 the motion to dismiss on Mr. Josefsberg's client came up after 
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we had filed that response. And what we said in the response 
to the motion to stay is that the reason why he wants to stay 
the litigation is so that the non-prosecution agreement 
4 terminates based on a period of time, as he puts it. And then 
5 afterwards he would be able to come in here and make all of 
6 these arguments that clearly violate the non-prosecution 
7 agreement but we would be without remedy. 
8 
THE COURT: But you're not taking the position that 
9 other than possibly doing something in litigation which is a 
10 violation of an express provision of the non-prosecution 
11 agreement, any other discovery, motion practice, investigations 
12 that someone would ordinarily do in the course of defending a 
13 civil case would constitute a violation of the agreement? 
14 
MS. VILLAFANA: No, Your Honor. I mean, civil 
15 litigation is civil litigation, and being able to take 
16 discovery is part of what civil litigation is about. And while 
17 there may be, for example, if someone were to try to subpoena 
18 the Government, we would obviously resist under statutory 
19 reasons, all that sort of stuff. But, no, Mr. Epstein is 
20 entitled to take the deposition of a plaintiff and to subpoena 
21 records, etc. 
-22 
"ME COURT: And even it he seeks dicovery rom a 
23 Government agency, you have the right to resist it under the 
24 rules of procedure but that would not constitute a violation, 
25 again unless there's a provision in the prosecution agreement 
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that says I can't do this? 
MS. VILLAFANA: Correct. 
THE COURT: That's your position? 
4 
MS. VILLAFANA: Yes. 
5 
THE COURT: Thank you. 
6 
MS. VILLAFANA: Thank you, Your Honor. 
7 
THE COURT: Mr. Critton, did you want to add anything? 
8 
MR. CRITTON: Yes, sir. Just a few responses to some 
9 of the issues that have been raised. 
10 
The most glaring, at least from our perspective, is 
11 both Mr. Josefsberg's comments that he believes that there's a 
12 violation of the NPA as well as Ms. Villafana with regard to 
13 Jane Doe 101. 
14 
Mr. Josefsberg, while he was the attorney rep who was 
15 selected by Judge 
to represent a number of individuals, 
16 alleged victims that may have been on the list, he represents 
17 many of them. And the type of response that was filed in 101 
18 would probably be very similar to what we will file if he 
19% files -- and he filed 102 as well. But if he files 103, 104 
20 and 105, or whatever number he files, we may well take that 
21 same legal position in our motions and in our response or in 
rep y. 
23 
And what we've been, in essence, told today is we 
24 consider that to be a violation of the NPA under the 
25 circumstances. 
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1 
102 is a perfect example that he filed is, we have 
2 e-mails going back and forth between the Government and my 
3 clients' attorneys at the time that suggested that 102 probably 
4 doesn't even fit within the statute of limitations. 
5 
So under Mr. Josefsberg's argument is as well, we've 
6 only brought a 2255 claim. We don't care whether she's within 
7 or is outside the statute of limitations. Because she was on 
8 the list and under the circumstances, he has to admit 
9 liability, which we contest is under that set of circumstances 
10 you're stuck with it. You can fight damages if you can, but 
11 she's a real person and you can't raise statute of limitations. 
12 
The other point that kind of strikes out is there's 
13 probably a difference. And I'm happy to provide a copy of the 
14 NPA or a redacted portion of the NPA which deals with the civil 
15 issues, which are paragraphs 7, 8, 9 and 10, and the entire 
16 addenda in camera for the Court to look at, if plaintiff's 
17 counsel and the Government, I guess, really, because they're 
18 not a party, is if they have no objection because they all have 
19 access based on a prior court order to the non-prosecution 
20 agreement. 
21 
So I'm happy to provide that to the Court today and 
effeiWit- to counsel so that the Court can review that. 
23 
But our position with regard to the 2255 claims is 
24 that -- there were two types of claims that could be filed, one 
25 was consensual litigation, the second was contested litigation. 
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1 And under the consensual, in essence, which Mr. Epstein did, is 
2 he's offered $50,000 of the statutory minimum for that time 
3 period to all of those individuals. 
4 
THE COURT: Can I interrupt you a second? 
5 
MR. CRITTON: Yes, sir. 
6 
THE COURT: I'm not here, and I don't believe it's my 
7 role to decide whether or not there is or is not a breach of 
8 the agreement. I'm just trying to understand what the 
9 Government's position is regarding your defending these cases. 
10 
Now, I'm just saying this as an example. If, for 
11 example, in the non-prosecution agreement there was a provision 
12 that said explicitly: Jeffrey Epstein shall not move to 
13 dismiss any claim brought under 2255 by any victim no matter 
14 how long ago the allegations or the acts took place, period. 
15 
If that was in the agreement and you filed a motion to 
16 dismiss by someone who brought a claim, it might sound like it 
17 might be a violation. 
18 
MR. CRITTON: I agree. 
19 
THE COURT: So you would know that when you filed your 
20 motion because it was right there for you to read. 
21 
And so to stay the case because I want to do something 
22 t at t e contract expressly prohibits me from doing, so stay 
23 the case until the agreement expires so then I can do something 
24 that the agreement said I couldn't do so you won't be in fear 
25 of prosecuting, I'm not sure that that is what I'm concerned 
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1 
2 
3 
4I 
5 
6 
7 
about. 
I'm concerned about discovery, investigation, motion 
practice, that's not prohibited by a provision of the 
agreement. If there's something that's prohibited by the 
agreement that you, knowing what the agreement says, go ahead 
and do, anyway, I guess that's a risk you're going to have to 
take. If there's a legitimate dispute about it, I guess some 
8 arbiter is going to decide whether it's a breach or not. 
9 
But, again, that's something you and Mr. Burman, 
10 Mr. Goldberger, and you are all very good lawyers, and he's got 
11 a whole list of lawyers representing him, and you've got the 
12 agreement and you're going to make legal decisions on how to 
13 proceed, and you're going to have to go and make your own 
14 decisions. 
15 
I'm concerned about things that aren't in the 
16 agreement, that aren't covered, that you're going to be accused 
17 of violating because, again, you take depositions, you send out 
18 subpoenas, you file motions that are not prohibited by the 
19 agreement. And that's what I'm concerned about. 
20 
MR. CRITTON: And I understand that, Your Honor. 
21 
But at the same time, it's as if the lawyers and the 
c rents, based upon our interpretation orme agreemen , an• 
23 believe me, we would not have filed 101, the motion to dismiss, 
24 but for believing that there was a good faith basis to do that 
25 under the circumstances. 
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1 
And now, in essence, we're being accused not only by 
2 -- not accused, but it's been suggested that there's a breach 
3 of the NPA, not only by Mr. Josefsberg on behalf of 101, but as 
4 well Ms. Villafana on behalf of the United States. 
5 
That's the perfect example. They're basically saying 
6 we think you violated. We may send you notice under the 
7 circumstances. So does that mean that on 101 we have to back 
8 off of it because we think in good faith that it's a motion and 
9 is that something that this Court ultimately will rule? 
10 
THE COURT: I don't know that I'm the one who is going 
11 to make that decision. Again, that's not the kind of thing 
12 that I was concerned about. I was more concerned about the 
13 normal, ordinary course of conducting and defending a case that 
14 would not otherwise expressly be covered under the agreement, 
15 that you're going to then have someone say, ah, he's sent a 
16 notice of deposition, he's harassing the plaintiffs. I don't 
17 know if there's a no contact provision in the agreement or no 
18 harassment type of provision in the agreement. Ah, this is a 
19 breach because you sent discovery, or he's issuing subpoenas to 
20 third parties trying to find out about these victims' 
21 backgrounds, he's breaching the agreement. 
Those are The kind of things th-a-E 3 was worried about. 
23 
MR. CRITTON: The concern that we have is as part of 
24 doing this general civil litigation, it's not just the 
25 discovery process. And I understand the issues that the Court 
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1 has raised. 
2 
But part of it is that often cases are disposed of 
3 either on a summary basis or certainly legal issues that come 
4 before the Court during the course of the case, just like in a 
5 criminal case. That's clearly part of the, I'd say the defense 
6 of the case under the circumstances; and if, in fact, an 
7 individual can't legally bring a cause of action for certain 
8 reasons, such as has been suggested in 101, and may be 
9 suggested in 102 when that pleading is filed, that certainly is 
10 a position that puts my client at risk. 
11 
As another example that I use with C.M.A., that they 
12 filed this 30-count complaint. Now, they have the state court 
13 claims as well. But they, in essence, have said they filed 
14 another pleading with the Court that says depending on what the 
15 Court rules, in essence, on whether we can file multiple claims 
16 or one cause of action with multiple violations, we may dump 
17 the state court claims and, therefore, we'll just ride along on 
18 that. That's a very different --
19 
Mr. Epstein would never have entered into, nor would 
20 his attorneys have allowed him to enter into that agreement 
21 under those circumstances where he had this unlimited 
lability. Tom£ clearly was never envIslonea- by any of the 
23 defendants -- by the defendant or any of his lawyers under the 
24 circumstances. 
25 
And if that's claimed to be a violation, either by the 
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17 
18 
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21 
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23 
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attorneys; i.e., he's not recapitulating on liability under the 
2255, and that's all we have now. That's our exclusive remedy. 
And the Government says, yeah, that's right, that's a 
violation of the NPA. It again chills us from moving forward, 
filing the necessary motion papers and taking legal positions 
that may put my client at risk for violating the NPA and then 
creating the irreparable harm of, after having been in jail, 
after having pled guilty to the state court counts, after 
registering on release as a sex offender, he's complied and 
done everything, taken extraordinary efforts to comply with the 
NPA, puts him at substantial risk. And that's what our worry 
is moving forward. 
MR. JOSEFSBERG: Your Honor, may I be heard. May I 
make three comments? It will take less than a minute. 
THE COURT: Yes, sir. 
MR. JOSEFSBERG: Mr. Critton refers to the alleged 
victims. I want you to know that our position is that pursuant 
to the NPA they're not alleged victims. They are actual, real 
victims, admitted victims. 
Secondly, he argues about the statute of limitations 
on 102. I know that you don't want to hear about that, and I'm 
not going to comment about it. But please don't take our lack 
of argument about this as being we agree with anything. 
Last and most important, we totally agree with 
Mr. Critton in his suggestion that he hand you a copy of the 
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2 
3 
4 
S 
6 
7 
8 
NPA. I think that many of the questions you asked will be 
answered when you read the NPA, and I think it's very unfair of 
everyone who is sitting in front of you who have the NPA to be 
discussing with you whether it's being breached, whether there 
should be a stay when you're not that familiar with it. 
if we would give you a copy of it, I think it would be 
much more helpful in making your ruling. 
THE COURT: Maybe Judge Colvat will resolve this issue 
9 for me. 
10 
MR. JOSEFSBERG: Even if he doesn't, Your Honor, 
11 believe we are allowed to show it to you. 
12 
THE COURT: I'll tell you what: I'll wait for Judge 
13 Colvat to rule, and then if he rules that it should remain 
14 sealed, then I'll consider whether or not I want to have it 
15 submitted to me in camera. 
16 
Anything else, Mr. Joscfsberg? 
17 
MR. JOSEFEBBRG: No. I thank you on behalf of myself 
18 and the other counsel on the phone for permitting us to appear 
19 by phone. 
20 
THE COURT: All right. Anyone else have anything they 
21 want to add? 
MIUMMITAIMS-: -Brad BeWards on—bEhalt or Jane Doe. 
23 
I only had one issue here, and when I read your motion 
24 that you wanted to hear on the narrow issue of just defense in 
25 the civil actions filed against him violates the 
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1 non-prosecution agreement, I was expecting that we were going 
2 to hear something from the Government similar to the affidavit 
3 that was filed by Mr. Epstein's attorneys wherein he indicates 
4 as of the day of this affidavit attached to the motion to stay, 
5 the U.S. Attorney's Office has taken the position that Epstein 
6 has breached the non-prosecution agreement and it names 
7 specifically investigation by Epstein of this plaintiff and 
8 other plaintiffs, Epstein's contesting damages in this action. 
9 Epstein, or his legal representatives, making statements to the 
101 press. And we didn't hear any of those things. 
11 
So that's what I was expecting that the U.S. 
12 Attorney's Office was going to expound on and say, yea, we've 
13 made some communications to Epstein. He's violating. 
14 
what we're hearing right now, today, just so that I'm 
15 clear, and I think the Court is clear now, is that the 
16 non-prosecution agreement is what it is. There have been no 
17 violations, but for maybe what Mr. Josefsberg brought up. 
18 
But there are very few restrictions on Mr. Epstein. 
19 He went into this eyes wide open. And whether or not I agree 
20 with the agreement, how it came to be in the first place, is 
21 neither here nor there. 
- S-4E—thre have been no violations or bleacheo up to 
23 this point. And his affidavit that was filed, I'm just 
24i troubled by where it even came from. I mean, it's making 
25 specific allegations that the U.S. Attorney's Office is 
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threatening a breach, and this is part of the motion to stay, 
which we're all battling here. 
So I just wanted to indicate to the Court or remind 
the Court that there have been specific allegations made, the 
5 United States Attorney's Office is making these allegations of 
6 breach, which we haven't heard any of the evidence of. 
7 
Thank you. 
8 
THE COURT: All right. 
9 
Ms. villafana, did you want to respond to that 
10 suggestion that there were other allegations of breach besides 
11 the one that you've just mentioned today? 
12 
MS. VILLAFANA: No, Your Honor. 
13 
THE COURT: Thank you. I appreciate your giving me 
14 the information, which I think has been very helpful today, and 
15 I'll try and get an order out as soon as possible. 
16 
(Court adjourned at 11:10 a.m.). 
17 
CERTIFICATE 
18 
I hereby certify that the foregoing is an accurate 
19 transcription of proceedings in the above-entitled matter. 
20 
s/Larry Herr 
21. 
DATE 
LARRY HERR, RPR-CM-RMR-FCRSC 
22 
Official United States Court Reporter 
400 N. Miami Avenue 
23 
Miami, FL 33128 - 305/523-5290 
(Fax) 305/523-5639 
24 
email: [email protected] 
25 
Quality Assurance by Proximity Ungulbase Technologies 
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