EFTA00178967

Amendment is whether the claimant is confronted by substantial and 'real,' not merely trifling or 
imaginary, hazards of incrimination." Marchetti v. United States, 390 U.S. 39, 53 (1968). 
Furthermore, a witness is not exonerated from answering questions merely because 
he declares that in so doing he would incriminate himself— his say-so does not itself 
establish the hazard of incrimination. It is the role of the court, not the witness, to 
evaluate the witness's claim of incrimination and determine whether it is reasonable. 
In evaluating the validity of a witness's invocation of Fifth Amendment privilege 
against self-incrimination, the court must make a particularized inquiry, in 
connection with each specific area that the questioning party wishes to explore, 
whether or not the privilege is well-founded. Thus, the court must review the 
witness's assertion of the privilege on a question-by-question basis and decide 
whether a witness's silence is justified. 
United States v. Koubriti, 297 F. Supp. 2d 955, 962 (E.D. Mich. 2004) (citing Hoffinan, 341 U.S. 
at 53; United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976); United States v. Rue, 
819 F.2d 1488 (8th Cir. 1987); In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983)). See also 
United States v. Argomaniz, 925 F.2d 1349, 1355 (11th Cir. 1991) (court must review assertions of 
Fifth Amendment privilege on question-by-question basis to provide presiding judge specific 
information needed to determine applicability of privilege). 
Similarly, blanket assertions of the attorney-client privilege are unacceptable. Instead, 
claims of privilege must be made on a document-by-document basis. United States v. Davis, 636 
F.2d 1028, 1038 (5th Cir. 1981);9 In re Grand Juty Subpoena, 831 F.2d 225, 227 (11th Cir. 1987). 
A blanket assertion cannot be used to avoid testifying; instead, a witness' claims of attorney-client 
privilege are tested by refusing to answer specific questions. Davis, 636 F.2d at 1039. See also 
Nguyen v. Excel Corp., 197 F.3d 200 (5th Cir. 1999); Clarke v. American Commerce Nat. Bank, 974 
'In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en bane), the Eleventh 
Circuit adopted as precedent all decisions of the prior Fifth Circuit court of Appeals decided prior 
to October 1, 1981. 
-8-
EFTA00179107

F.2d 127 (9th Cir. 1992); United States v. White, 950 F.2d 426, 430 (7th Cir. 1991). 
In his motion, Epstein has proceeded like the litigants in the case of In re Grand Jury 
Subpoena, 274 F.3d 563 (1st Cir. 2001), generally asserting a blanket attorney-client and work 
product privilege to all documents called for by a subpoena without providing a privilege log or any 
other specific information. Judge Selya strenuously criticized this practice, commenting: 
they do not identify any particular documents as privileged, nor do they specify the 
reasons why certain communications should be considered privileged. Thus, like 
soothsayers scrutinizing the entrails of a goat, we are left to scour the record for 
indications of what these documents might be and what they might contain. 
Id. at 569. The First Circuit affirmed the district court's denial of the litigants' motion to quash 
because of their failure "to present sufficient information with respect to the items to which their 
claim of privilege attaches." Id. at 575. 
A party that fails to submit a privilege log is deemed to waive the underlying 
privilege claim. . . . Although most of the reported cases arise in the context of a 
claim of attorney-client privilege, the "specify or waive" rule applies equally in the 
context of claims of work product privilege. . . . Despite this knowledge, the 
intervenors made no effort to prepare a privilege log. That omission is fatal. 
Id. at 576 (internal citations omitted; emphasis added). See also United States v. Construction 
Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) ("if the party invoking the privilege does not 
provide sufficient detail to demonstrate fulfillment of the legal requirements for application of the 
privilege, his claim will be rejected") (citations omitted); Dorf & Stanton Communications, Inc. v. 
Molson Breweries, 100 F.3d 919 (Fed. Cir. 1996) (a party who fails to submit a privilege log is 
deemed to have waived the underlying privilege claim). 
Epstein's failure to provide a privilege log dooms his motion to quash, as well. As shown 
by his motion, Epstein is represented by extremely competent counsel. In addition to Mr. Black and 
his partners, Epstein has retained at least six other attorneys with extensive experience in federal 
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EFTA00179108

court. Epstein and his counsel have had access to the subpoenaed computers since at least October 
2005, when they were removed from Epstein's home, and they have known about the United States' 
attempts to locate those computers for at least two months, when a subpoena for the same items was 
served upon Paul Lavery, another private investigator who worked with Riley. This is not a 
situation where failure to abide by the Court's rules should be tolerated. 
III. 
IN LIGHT OF THE GRAND JURY'S INVESTIGATORY ROLE, THE FIFTH 
AMENDMENT AND ATTORNEY-CLIENT PRIVILEGES MUST BE 
NARROWLY CONSTRUED. 
Assuming that the Court finds that Epstein has adequately asserted his Fifth Amendment, 
attorney-client, and work product privileges, the Court must construe the privileges narrowly in 
deciding their applicability in light of the important role of the Grand Jury in the investigation of 
these crimes involving the sexual exploitation of minors. 
The Supreme Court has routinely recognized the grand jury's unique role in the United 
States' criminal justice system. The grand jury "belongs to no branch of the institutional 
Government, serving as a kind of buffer or referee between the Government and the people." United 
States v. Williams, 504 U.S. 36, 47 (1992). Thus, the Court's authority over the grand jury's 
subpoena and indictment power is limited. See, e.g., Williams, 504 U.S. at 54-55 (Court cannot 
require prosecutors to present exculpatory evidence to the grand jury); Costello v. United States, 350 
U.S. 359, 363-64 (1956) (Court cannot create rule permitting defendants to challenge grand jury 
indictments because of inadequate or incompetent evidence). Instead, to fulfill its investigatory role, 
the grand jury may "compel the production of evidence or the testimony of witnesses as it considers 
appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary 
rules governing the conduct of criminal trials." United States v. Calandra, 414 U.S. 338, 343 
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EFTA00179109

(1974). Courts are "mindful of the policy that `nowhere is the public's claim to each person's 
evidence stronger than in the context of a valid grand jury subpoena.' In re Grand Jury 
Proceedings, 219 F.3d 175, 186 (2d Cir. 2000) (quoting In re Sealed Case, 676 F.2d 793, 806 (D.C. 
Cir. 1982)). See also In re Grand Jury Subpoena, 223 F.3d 213, 218 (3d Cir. 2000) ("One of the 
most significant, if not the most significant, differences stemming from the investigative role of the 
grand jury is the importance of secrecy, particularly when an investigation is on-going.") (citations 
omitted). 
The grand jury is "a grand inquest, a body with powers of investigation and inquisition, the 
scope of whose inquiries is not to be limited narrowly by questions or propriety or forecasts of the 
probable result of the investigation . ." Blair v. United States, 250 U.S. 273, 282 (1919). A grand 
jury may "inquire into all information that might possibly bear on its investigation until it has 
identified an offense or has satisfied itself that none has occurred. United States v. R. Enterprises, 
Inc., 498 U.S. 292, 297 (1991). "As a necessary consequence of its investigatory function, the grand 
jury paints with a broad brush." Id. Accordingly, it is a well-recognized principle that courts should 
not intervene in the grand jury process absent compelling reason. United States v. Dionisio, 410 
U.S. 1, 16-18 (1973). 
A district court also should be mindful of a target's attempts to "saddle a grand jury with 
mini-trials and preliminary showings [that] would assuredly impede its investigation and frustrate 
the public's interest in the fair and expeditious administration of the criminal laws." Id. at 17. The 
Court must be wary of a motion made by a target that seeks to gather information about the scope 
of the investigation. As the Supreme Court has held, "[r]equiring the Government to explain in too 
much detail the particular reasons underlying a subpoena threatens to compromise 'the indispensable 
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EFTA00179110

secrecy of the grand jury proceedings.' R. Enterprises, 498 U.S. at 299 (quoting United States v. 
Johnson, 319 U.S. 503, 513 (1943)). "The need to preserve the secrecy of an ongoing grand jury 
investigation is of paramount importance." In re Grand Jury Proceedings in Matter of Freeman, 
708 F.2d 1571, 1576 (11th Cir. 1983) (extensive citations omitted). 
A. 
The Fifth Amendment Privilege 
Thus, in Hale v. Henkel, 201 U.S. 43 (1906), the Supreme Court refused a grand jury 
witness' demand that he be advised of the charges that the grand jury was investigating prior to 
giving testimony.10 The Court also limited the assertion of the Fifth Amendment privilege in 
response to questions before the grand jury: the Amendment does "not declare[] that [the witness] 
may not be compelled to testify to facts which may impair his reputation for probity, or even tend 
to disgrace him; but the line is drawn at testimony that may expose him to prosecution." Id. at 66-
67. As explained above, Epstein has attempted to assert a blanket Fifth Amendment privilege 
covering every document contained on the three computers removed from his home and all of the 
billing records requested from Riley. The Supreme Court has rejected this attempt to restrict the 
grand jury's access to information relevant to its investigation. 
B. 
The Attorney-Client Privilege 
In the context of the grand jury, courts have acknowledged that the attorney-client privilege 
"impedes the full and free discovery of the truth." In re Grand Jury Proceedings, 727 F.2d 1352, 
'°The Supreme Court called this "a novelty in criminal procedure with which we are wholly 
unacquainted, and one which might involve a betrayal of the secrets of the grand jury room." Id. 
at 59. Epstein counsel's assertion that he is well acquainted with the subject of the grand jury 
investigation and that, therefore, he purports to inform the Court of the relevance (or irrelevance) 
of the subpoenaed items treads upon the grand jury's investigatory powers as described in Hale. See 
id. at 59-64. 
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EFTA00179111

1355 (4th Cir. 1984) (citation omitted). Thus, the attorney-client privilege should be narrowly 
construed, id., and should be recognized "only to the very limited extent that ... excluding relevant 
evidence has a public good transcending the normally predominant principle of utilizing all rational 
means for ascertaining truth." Trammel v. United States, 445 U.S. 40, 50 (1980) (internal quotation 
omitted). See also In re Grand Jury Subpoena, 274 F.3d 563, 571 (1st Cir. 2001) ("Because [the 
attorney-client privilege] stands in the way of a grand jury's right to every man's evidence, the 
privilege applies only to the extent necessary to achieve its underlying goal of ensuring effective 
representation through open communication between lawyer and client.") (citation omitted). 
In the context of a grand jury subpoena, the Eleventh Circuit explains: 
the [attorney-client] privilege is not all-inclusive and is, as a matter of law, construed 
narrowly so as not to exceed the means necessary to support the policy which it 
promotes. Thus, the argument that any communication between an attorney and 
client is protected by the privilege is overbroad. Merely because a matter which a 
lawyer is asked to reveal might incriminate a client does not make that matter 
privileged. The privilege is not designed to protect revelation of incriminating 
matters, only confidential communications between the attorney and client regarding 
the matter of representation. 
In re Grand Jury Matter No. 91-01386, 969 F.2d 995, 997 (11th Cir. 1992) (citation omitted). 
Mindful of this case law, Epstein's attempt to completely bar the grand jury's access to pre-
existing, voluntarily-created documents cannot stand. 
IV. 
THE COMPUTERS AND THEIR CONTENTS WERE PROPERLY 
SUBPOENAED AND MUST BE PRODUCED. 
A. 
Epstein Has No Fifth Amendment Privilege in the Computers. 
While denying the existence of the subpoenaed computer equipment, Epstein spends several 
pages telling the Court that requiring William Riley and Riley Kiraly to produce items in their 
custody implicates and violates Epstein's Fifth Amendment privilege. Epstein's motion incorrectly 
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EFTA00179112

conflates several concepts involving different privileges that, when dissected, do not apply to the 
subpoenaed items. 
The first issue is whether Epstein's Fifth Amendment privilege applies to Riley's production 
of the computers removed from Epstein's home. The Fifth Amendment privilege "protects a person 
... against being incriminated by his own compelled testimonial communication." Fisher v. United 
States, 425 U.S. 391, 409 (1976). Thus, to receive Fifth Amendment protection, a person's 
statement or act must be: (1) compelled; (2) testimonial; and (3) incriminate that person in a 
criminal proceeding. 
The Fifth Amendment privilege is a personal one which may not be asserted vicariously. 
United States v. Davis, 636 F.2d 1028, 1034 (5th Cir. 1981). Thus, "compelled production of 
documents from an attorney does not implicate whatever Fifth Amendment privilege the taxpayer 
might have enjoyed from being compelled to produce them himself." Fisher v. United States, 425 
U.S. 391, 397 (1976). 
The right of a person under the 5th Amendment to refuse to incriminate himself is 
purely a personal privilege of the witness. It was never intended to permit him to 
plead the fact that some third person might be incriminated by his testimony, even 
though he were the agent of such person. 
Hale v. Henkel, 201 U.S 43, 69-70 (1906). 
In Couch v. United States, 409 U.S. 322 (1973), the Supreme Court rejected a taxpayer's 
assertion of her Fifth Amendment privilege to keep her attorney from turning over documents that 
had been in the custody of her accountant." "In the case before us the ingredient of personal 
compulsion against an accused is lacking. The summons and the order of the District Court 
"The summons had been directed to the accountant but, at the direction of the taxpayer, the 
accountant had turned the documents over to the attorney. 
-14-
EFTA00179113

enforcing it are directed against the accountant. He, not the taxpayer, is the only one compelled to 
do anything. And the accountant makes no claim that he may tend to be incriminated by the 
production." Id. at 329. The Court then explained: 
the Fifth Amendment privilege is a personal privilege; it adheres basically to the 
person, not to information that may incriminate him. As Mr. Justice Holmes put it: 
"A party is privileged from producing the evidence, but not from its production." 
The Constitution explicitly prohibits compelling an accused to bear witness "against 
himself;" it necessarily does not proscribe incriminating statements elicited from 
another. . . . It is extortion of information from the accused himself that offends our 
sense of justice. 
Id. at 328 (quoting Johnson v. United States, 228 U.S. 457, 458 (1913)) (emphasis in original). 
Thus, the Court found that the accountant did not have a Fifth Amendment privilege and could be 
compelled to produce the documents. See also SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742 
(1984) (There is no Fifth Amendment violation against the target of an investigation when a 
subpoena is issued to third party because the target was not compelled to produce materials.) The 
Eleventh Circuit has even authorized the government to demand that a target sign a written 
authorization allowing unidentified third-party banks to produce records within the banks' custody 
that relate to the target. United States v. Ghidoni, 732 F.2d 814 (11th Cir. 1984). 
In this case, the subpoenas are addressed to William Riley and to the Custodian of Records 
of Riley Kiraly. Neither Riley nor his firm has asserted a legitimate fear of incrimination (and of 
course they have none), only Epstein has done so. As such, the Fifth Amendment claim must fail. 
Furthermore, Riley Kiraly is an artificial entity, not a natural person, and therefore has no Fifth 
Amendment privilege at all. See, e.g., Doe v. United States, 487 U.S. 201, 206 (1988); Bellis v. 
United States, 417 U.S. 85, 90 (1974). 
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EFTA00179114

B. 
The Attorney-Client Privilege and the Work Product Doctrine Also Do 
Not Bar the Production of the Computers. 
Despite the fact that Epstein cannot assert his own Fifth Amendment privilege to bar the 
production of documents by Riley, in certain circumstances, an attorney (or his agent) can use the 
attorney-client privilege to assert an act of production immunity on behalf of his client. See, e.g., 
Fisher, 425 U.S. at 402-04. Those circumstances do not apply here. 
In Fisher, the Supreme Court determined that a defendant does not suffer a Fifth Amendment 
violation when his attorney is compelled to produce documents he had received from the defendant 
because the defendant was not compelled to testify against himself. However, the Supreme Court 
went on to decide that the protections of the attorney-client privilege would be eroded if documents 
that a defendant could not be forced to produce due to the defendant's Fifth Amendment privilege 
lost their protection if given to the attorney as part of a confidential communication. The Court thus 
concluded that where a defendant confidentially communicates preexisting documents to an attorney 
for purposes of obtaining legal advice, the attorney-client privilege prevents the government from 
compelling the attorney to produce those items unless the government could have compelled the 
defendant to produce them himself. Id. at 404-05. 
Thus, to succeed in using the attorney-client privilege to vicariously assert the Fifth 
Amendment privilege, Epstein must show that the removal of the computers from his home 
constituted a "confidential communication" where legal advice was sought — i.e., that the attorney-
client privilege applied; and, second, that the government could not have obtained the computers 
directly from Epstein if they had remained in his custody." Epstein has failed to show either. 
1"The Fifth Circuit described Fisher's holding as follows: "preexisting documents 
transferred to an attorney are protected by the attorney-client privilege only if two conditions are 
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EFTA00179115

1. 
Epstein has not shown that the transfer of the computers to Riley 
was done in confidence. 
"The burden of proving that a communication falls under the attorney-client privilege rests 
on the proponent of the privilege." Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) (citation 
omitted). 
The party invoking the attorney-client privilege has the burden of proving that an 
attorney-client relationship existed and that the particular communications were 
confidential. In order to show that communications made to an attorney are within 
the privilege, it must be shown that "the communication was made to him 
confidentially, in his professional capacity, for the purpose of securing legal advice 
or assistance. 
United States v. Sehaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991) (citations omitted). See also 
XYZ Corp. v. United States, 348 F.3d 16, 22 (1st Cir. 2003) ("The privilege protects only those 
communications that are confidential and are made for the purpose of seeking or receiving legal 
advice.") (citations omitted). 
The attorney-client privilege protects only communications between attorney" and client for 
the purpose of seeking legal advice. The "mere fact that an attorney [or in this case, his alleged 
agent] is present at a meeting or is copied on a document does not in and of itself afford privilege 
protection to such a meeting or document. [And,] the mere fact that one is an attorney does not 
render everything he does for or with the client privileged." Gutter v. El. DuPont de Nernours and 
met. First, the usual common-law prerequisites for the privilege must be satisfied: the information 
in the documents must be confidential and the transfer must have been made to obtain legal advice. 
Second, the documents must have been privileged from production in the client's hands, either at 
common law or under the fifth amendment." Davis, 636 F.2d at 1040. 
"For purposes of this discussion, the United States assumes that Riley, a private investigator, 
and his firm were working as agents of Attorney Black. The billing documents subpoenaed by the 
United States would assist the United States in evaluating that claim, but Epstein has objected to the 
production of those documents. 
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EFTA00179116

Co., 1998 WL 2017926, *1 (S.D. Fl. May 18, 1998) (citations omitted). If an attorney (or his agent) 
was doing something other than rendering legal advice, neither the attorney-client nor work product 
privilege applies. Id. 
In this case, Epstein has not carried his burden of proving the application of the privilege to 
the computers. In particular, Epstein has not showed that the "communication" was confidential. 
Even if Riley could stand in the shoes of Attorney Black, Epstein has not shown that the removal 
of the computers from Epstein's home was done in confidence. If others wer present, there was an 
implied waiver of the privilege. See, e.g., XYZ Corp., 348 F.3d at 23 ("The privilege evaporates the 
moment that confidentiality ceases to exist. With isthmian exceptions not pertinent here, the 
presence of third parties is sufficient to undermine the needed confidentiality.") (citation omitted); 
Liggett Group Inc., v. Brown & Williamson Tobacco Corp., 116 F.R.D. 205, 210 (M.D.N.C. 1986) 
(citations omitted) ("For communications between an attorney and client . . . to be privileged, they 
must be confidential. Ordinarily, the presence of a third party destroys the element of confidentiality 
and, therefore, any claim of privilege."). 
2. 
Epstein has failed to establish that the pre-existing documents 
were a privileged "communication" for purposes of seeking legal 
advice. 
In asserting that the contents of the computers are covered by the attorney-client privilege 
or the work product doctrine, Epstein attempts to stretch the privileges beyond their limits. There 
has been no assertion that the computers themselves were communications or that the computers 
contain attorney-client communications, nor were the computers or their contents produced in 
anticipation of litigation. 
In Upjohn v. United States, 449 U.S. 383 (1981), the Supreme Court made clear that an 
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EFTA00179117

attorney cannot create a "zone of silence" over factual matters. The Court wrote: the attorney-client 
"privilege only protects disclosure of communications; it does not protect disclosure of the 
underlying facts by those who communicated with the attorney." Id. at 395. 
The client cannot be compelled to answer the question, "What did you say or write 
to the attorney?" but may not refuse to disclose any relevant fact within his 
knowledge merely because he incorporated a statement of such fact into his 
communication to his attorney. . . . [T]he courts have noted that a party cannot 
conceal a fact merely be revealing it to his lawyer. 
Id. at 396 (internal citations and quotations omitted). 
Likewise, despite a claim of attorney work product, "[w]here relevant and nonprivileged 
facts remain hidden in an attorney's file and where production of those facts is essential to that 
preparation of one's case, discovery may properly be had." Hickman v. Taylor, 329 U.S. 495, 511 
(1947). Furthermore, the "work product rule protects work done by an attorney in anticipation of, 
or during, litigation," In re Grand Jury Subpoena, 274 F.3d at 574, not physical objects, like the 
computers, or the pre-existing records contained therein, which were created by Epstein or third 
parties, not attorneys. Cf In re Grand Jury Matter No. 91-01386, 969 F.2d 995 (11th Cir. 1992) 
(holding that the attorney-client privilege did not bar the disclosure of the names of clients who paid 
their attorneys with counterfeit bills because "[d]isclosure of the clients' identities will link them 
with only the payment of a counterfeit one hundred dollar bill, which is not a communication at all. 
. . . To apply the privilege under these facts would be an affront to that very system, as it would 
effectively insulate discoverable acts merely because they were enacted in the presence of an 
attorney.") (emphasis added). 
Just a month ago, the Second Circuit addressed this issue when a defendant tried to 
disqualify prosecutors who had seen four documents that the defense alleged were privileged. 
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EFTA00179118

United States v. Walker, 2007 WL 1743273 (2d Cir. Jun. 18, 2007). The court wrote: 
Even assuming the documents (or the handful of corrections and clarifications 
handwritten thereon) were work product or were privileged, they contain solely 
factual information about [a] business, and shed no light on [defendant's] 
confidential communications with counsel or defense strategy. Moreover, we agree 
with the district court that these documents were neither work product nor attorney-
client communications. The attorney-client privilege protects from disclosure the 
contents of confidential attorney-client communications, but does not prevent 
disclosure from the client's records the underlying factual information included in 
attorney-client communications. See Upjohn Co. v. United States, 449 U.S. 383, 395 
(1981). For this reason, putting otherwise non-privileged business records ... in the 
hands of an attorney—or printing out such records for an attorney to review—does not 
render the documents privileged or work product. See Ratliff v. Davis Polk & 
Wardwell, 354 F.3d 165, 170-71 (2d Cir. 2003) ("Documents obtain no special 
protection because they are housed in a law firm; any other rule would permit a 
person to prevent disclosure of any of his papers by the simple expedient of keeping 
them in the possession of his attorney.") In re Grand Jury Subpoenas, 318 F.3d 379, 
384 (2d Cir. 2003) (stating that the work product doctrine generally does not shield 
from discovery materials in an attorney's possession that were prepared neither by 
the attorney nor his agents). Moreover, the "selection and compilation of . . . 
documents by counsel transforms that material into attorney work product" only if 
there is "a real, rather than speculative, concern that counsel's thought processes in 
relation to pending or anticipated litigation will be exposed through disclosure of the 
compiled documents." In re Grand Jury Subpoenas, 318 F.3d at 386. 
Id. at *2 (some internal citations and quotations omitted). 
Here, like in Walker, Epstein's counsel contends that the computers-which contain only pre-
existing documents-are privileged and that counsel's decision to have his investigator remove those 
computers from Epstein's home is the "selection and compilation of documents" that would disclose 
his "thought processes." These arguments fail for the same reasons. First, the computers and their 
contents are not "communications," they are pre-existing documents and, as in Ratlifir, putting them 
into the hands of an attorney (or his investigator) does not convert them into "privileged" 
communications. Second, the removal of the three computers from Epstein's home is not the 
"selection and compilation of documents by counsel." As Epstein himself argues, each computer 
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EFTA00179119

can hold literally thousands of documents. Removing all of the file cabinets in an entire home is not 
the strategic "selection and compilation" of documents, it is simply the wholesale removal of 
potentially incriminating evidence. Taking Epstein's argument to its logical conclusion, sending an 
investigator to a client's home to remove a murder weapon would make that physical item privileged 
or "work product" because its removal shows the attorney's "thought process" that the murder 
weapon would incriminate his client!' CI In re Grand Jury Subpoena, 204 F.3d 516, 523 (4th Cir. 
"Although unpublished, the case of United States v. Hunter, 1995 WL 12513 (N.D. III. Jan. 
6, 1995), contains facts similar to the ones at bar and gives a detailed analysis of the applicability 
of the attorney-client privilege to physical items. In Hunter, a defendant, subsequent to his arrest, 
informed his attorney of the existence of currency and ammunition in his home. The attorney went 
to his client's home; opened two boxes that contained $30,000 to $50,000; and removed them from 
the home. The boxes were thereafter kept in the attorney's custody or control. The attorney later 
revealed the existence of and whereabouts of the boxes and a search warrant was obtained and 
executed. The defendant moved to bar the introduction of the boxes of cash against him at trial, 
asserting the attorney-client and work product privileges. 
The district court began its analysis by noting that "the boxes themselves do not fall within 
the protection of the attorney-client privilege, since their existence is a fact and not a 
'communication.'" Id. at *2 (citing Upjohn, 449 U.S. at 391). The District Court noted that if the 
boxes had never been removed from the home and the government had learned of their existence 
only through the use of a protected communication, then the defendant may have had an argument 
against their admission. Id. However, "these are not the facts of this case. Here, defendants' 
attorneys removed the evidence from [the defendant's] house, thereby preventing police from 
recovering the boxes at a later date. At this point, [the attorneys] may have violated their ethical 
obligation not to 'unlawfully obstruct another party's access to evidence.' Indeed, it is this alteration 
of criminal evidence that forecloses [the defendant's] attorney-client privilege argument . . ." Id. 
The district court addressed the cases of Clutchette v. Rushen, 770 F.2d 1469 (9th Cir. 1985), and 
People v. Meredith, 631 P.2d 46 (Cal. 1981). In Clutchette, the defendant's attorney had sent an 
investigator to collect incriminating evidence from a shopkeeper, and the trial court had allowed that 
evidence to be admitted at trial over the defendant's assertion of the attorney-client privilege. The 
Ninth Circuit wrote that once the attorney made the strategic choice to take possession of the 
evidence—a step which was not necessary to evaluate the significance of the [evidence] for the 
defendant's case—he was legally and ethically obligated to turn it over to the prosecution. Therefore, 
introduction of the evidence did not implicate the privilege. Hunter at *2 (citing Clutchette at 1472). 
In Meredith, a murder suspect informed his attorney that the murder victim's wallet was in 
the garbage can behind the suspect's house and the attorney sent a private investigator to retrieve 
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EFTA00179120

2000) ("The attorney-client privilege is not intended to permit an attorney to conduct his client's 
business affairs in secret. . . . A client may not `buy' a privilege by retaining an attorney to do 
something that a non-lawyer could do just as well.") (internal quotations omitted)). 
3. 
Even if the transfer fo the computers was a privileged 
communication, Epstein cannot show that the computers were 
privileged in his hands. 
Even if the Court finds that the transfer of the computers to Riley was covered by the 
attorney-client privilege, "documents created outside the attorney-client relationship should not be 
held privileged in the hands of the attorney unless otherwise privileged in the hands of the client, 
it. After reviewing the wallet, the attorney gave it to law enforcement. The prosecution then 
introduced the wallet at trial, as well as testimony from the investigator that he recovered the wallet 
from behind the defendant's home over the defendant's assertion of the attorney-client privilege. 
The California Supreme Court held that the introduction of the wallet and the investigator's 
testimony was proper because "whenever defense counsel removes or alters evidence, the [attorney-
client] privilege does not bar revelation of the original location or conduction of the evidence in 
question." Hunter at *3 (quoting Meredith at 54). While the investigator could not testify about the 
substance of any communications with the attorney, he had to tell the jury where the wallet was 
found. The California Supreme Court stated that, to hold otherwise, "permits the defense in effect 
to 'destroy' critical information; it is as if . . . the wallet in this case bore a tag bearing the words 
'located in the trash can by [defendant's] residence,' and the defense, by taking the wallet, destroyed 
this tag." Hunter at n.5 (quoting Meredith at 53). 
It should be noted that removal of the computers was not necessary to the ability of Epstein's 
counsel to evaluate their significance; copies of the hard drives could have been made. Of course, 
unlike counsel in Clutchette and Meredith, Epstein's counsel never provided the evidence to law 
enforcement and, instead, tries to aver that the items may not exist. If that is so, then not only did 
the investigator working for Epstein's counsel remove the evidence, he also destroyed it. 
Lastly, the defendant asserted that defense counsel's search of the defendant's home "was 
part of the preparation of the defense case, and therefore 'the basis for conducting such an 
investigation is attorney-work product because it reflects the thought processes and strategies, if not 
actual privileged communications.'" Hunter at *4. The district court rejected this argument: 
"[t]aking possession of the boxes did not somehow transform them into 'materials prepared in 
anticipation of litigation,' which would subsequently be undiscoverable." Id. Epstein makes the 
identical arguments and those arguments should be rejected for the same reasons. 
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lest the client immunize incriminating evidence merely by depositing it with his attorney." Davis, 
636 F.2d at 1041. Thus, the Court must determine whether Epstein has shown that he would have 
had a Fifth Amendment privilege against producing the computers if they had remained in his 
custody. The computers are not testimonial communications, so Epstein would not. 
The computers themselves are not protected by the Fifth Amendment because they are 
physical evidence—they are not testimonial. "[T]he distinction to be drawn under the Fifth 
Amendment privilege against self-incrimination is one between an accused's 'communications,' in 
whatever form, vocal or physical, [which violates the privilege], and 'compulsion which makes a 
suspect or accused the source of 'real or physical evidence' [which does not].'" United States v. 
Wade, 388 U.S. 218, 223 (1967) (quoting Schmerber v. State of California, 384 U.S. 757, 764 
(1966)). And the contents of the computers are not protected because the creation of the contents 
was not compelled, instead, the contents were voluntarily created by the persons who used them.15
See, e.g., United States v. Doe, 465 U.S. 605, 612 (1984); In re Grand Jury Proceedings, 393 F.3d 
905, 909 (9th Cir. 2004); In re Foster, 188 F.3d 1259, 1269 (10th Cir. 1999). This reasoning applies 
even when the documents or information are classified as "personal papers" rather than business 
documents. See United States v. Feldman, 83 F.3d 9, 14 (1st Cir. 1996) (defendant's letters of 
apology not protected because voluntarily prepared); In re Grand Jury Subpoena Duces Tecutn, 1 
F.3d 87, 90 (2d Cir. 1993) (defendant's personal calendar not protected because voluntarily 
prepared); Barrett v. Acevedo, 169 F.3d 1155, 1168 (8th Cir. 1999) (defendant's journal not 
protected because voluntarily written); United States v. Wuykowski, 929 F.2d 981, 983 (4th Cir. 
"It should be noted that Epstein has failed to allege that he is the person who prepared the 
contents of the computers. As stated above, one of the computers was removed from an area used 
by 
not Epstein. 
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1991) (Fifth Amendment does not protect the contents of voluntarily prepared documents, whether 
business or personal); United States v. Hubbell, 167 F.3d 552, 567 (D.C. Cir. 1999) (same), aff'd 
on other grounds, 530 U.S. 27 (2000); In re Grand Jury Proceedings, 759 F.2d 1418, 1419 (9th Cir. 
1985) (same). 
At the very end of his motion, Epstein urges the Court to resurrect United States v. Boyd, 
arguing that the subpoena seeks "purely private papers," and that a subpoena demanding those 
papers violates Epstein's Fifth Amendment rights, pursuant to Boyd,116 U.S. 616 (1886). Epstein's 
counsel correctly notes that Boyd's analysis has been severely limited, but asserts that the "purely 
private paper" doctrine is still alive and applies to the contents of Epstein's computers. 
Boyd's statement that "purely private papers" cannot be obtained through compulsory 
process from a target/defendant has been eroded to the point where it no longer has any force or 
effect. The Supreme Court has written, as early as 1976, that "the continued validity of the broad 
statements contained in some of the Court's earlier cases [referring to Boyd], have been discredited 
by later opinions." Andresen v. Maryland, 427 U.S. 463, 472 (1976). In 1984, Justice O'Connor 
wrote a concurring opinion in United States v. Doe, 465 U.S. 605 (1984), 
just to make explicit what is implicit in the analysis of that opinion; that the Fifth 
Amendment provides absolutely no protection for the contents of private papers of 
any kind. The notion that the Fifth Amendment protects the privacy of papers 
originated in Boyd v. United States, . . . but our decision in Fisher v. United States, 
. . . sounded the death knell for Boyd. Several of Boyd's express or implicit 
declarations [had] not stood the test of time, ... and its privacy of papers concept had 
long been a rule searching for a rationale . . . Today's decision puts a long overdue 
end to that fruitless search. 
Id. at 618 (internal citations and quotations omitted). The full Court wrote that it is well-settled that 
"if the party asserting the Fifth Amendment privilege has voluntarily compiled [a] document, no 
compulsion in present and the contents of the document are not privileged." Id. at 612 n.10. See 
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also United States v. Hubbell, 530 U.S. 27, 35-36 (2000) (It is a "settled proposition that a person 
may be required to produce specific documents even though they contain incriminating assertions 
of fact or belief because the creation of those documents was not `compelled' within the meaning 
of the privilege. . . [Where] papers had been voluntarily prepared prior to the issuance of the 
summonses, they could not be 'said to contain compelled testimonial evidence, either of the [target] 
or of anyone else.' Accordingly, the [target] could not 'avoid compliance with the subpoena merely 
by asserting that the item of evidence which he is required to produce contains incriminating writing, 
whether his own or that of someone else. It is clear, therefore, that respondent Hubbell could not 
avoid compliance with the subpoena served on him merely because the demanded documents 
contained incriminating evidence, whether written by others or voluntarily prepared by himself.") 
(quoting Fisher v. United States, 425 U.S. 391, 409-10 (1976); and citing United States v. Doe, 465 
U.S. 605 (1984)); In re Grand Jury Subpoena Duces Teem, 1 F.3d 87, 90 (2d Cir. 1993) ("While 
we have previously left undecided the question of whether the Fifth Amendment protects the 
contents of private papers that are not business documents, we now rule that it does not." (internal 
citation and quotations omitted)); United States v. Wujkowski, 929 F.2d 981 (4th Cir. 1991); In re 
Sealed Case, 877 F.2d 83, 84 (D.C. Cir. 1989) (Fifth Amendment privilege "does not cover the 
contents of any voluntarily prepared records, including personal ones"); In re Grand Jury 
Proceedings, 759 F.2d 1418, 1419 (9th Cir. 1985); 
United States v. Bedell & Co., 2006 WL 
3813792, *1 (E.D.N.Y Oct. 30, 2006) ("It is well settled that the Fifth Amendment 'does not protect 
the contents of voluntarily prepared documents, whether business or personal."' (quoting In re Hyde, 
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235 B.R. 539, 543 (S.D.N.Y. 1999) (emphasis in Bede11)).16
Even if the Boyd analysis was still good law, it would only apply to Epstein's private papers. 
There has been no showing by Epstein that all of the documents contained on the three computers 
were his private papers. As set forth in the 
Declaration, one of the computers was in an area 
that appears to be the office of 
and another was in the pool cabana. 
4. 
The act of production doctrine would not have protected Epstein 
from producing the computers if they had remained in his 
custody. 
Even if Epstein could successfully show that the transfer of the computers to Riley were 
covered by the attorney-client privilege, such that Riley could assert the act of production privilege 
on behalf of Epstein, the production of the computers would not tend to incriminate Epstein. 
Under the act of production doctrine, even if documents responsive to a subpoena are not 
themselves covered by the Fifth Amendment, "the act of production itself may implicitly 
communicate statements of fact. By producing documents in compliance with a subpoena, the 
witness would admit that the papers existed, were in his possession or control, and were authentic." 
United States v. Hubbell, 530 U.S. 27, 36 (2000) (internal quotations and extensive citations 
'Epstein's Fourth Amendment claim also fails under the post-Boyd case law. Andresen v. 
Maryland, supra, addressed a claim of a Fourth Amendment violation when a search warrant 
authorized the seizure of papers that the defendant asserted were "personal." The Andresen Court 
rejected the claim, announcing the "general rule: `There is no special sanctity in papers, as 
distinguished from other forms of property, to render them immune from search and seizure, if only 
they fall within the scope of the principles of the cases in which other property may be seized, and 
if they be adequately described in the affidavit and warrant."' Andresen, 427 U.S. at 474 (quoting 
Graded v. United States, 255 U.S. 298, 309 (1921)). 
it should be noted that a search warrant for Epstein's house was obtained, which included 
the authority to seize the computers that are the
 this motion, but Epstein had already 
removed the computers from the home. (See 
Declaration.) 
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omitted). 
However, the act of production privilege applies only if the production would be 
"testimonial" and "incriminating." Butcher v. Bailey, 753 F.2d 465, 469 (6th Cir 1985) (citing 
United States v. Doe, 465 U.S. 605, 612-13 (1984)). 
Production of documents may be testimonial in any of three ways: 
by 
acknowledging that the documents exist; by acknowledging that they are in control 
of the person producing them; or by acknowledging that the person producing them 
believes they are the documents requested and thereby authenticating them for 
purposes of Fed. R. Evid. 901. . . . Production of documents is not considered 
testimonial if each of these consideration is a "foregone conclusion." 
Id. (citing Doe, 465 U.S. at 613, n.11, n.13). Accordingly, where the government already knows 
about the existence of the documents, their whereabouts, and has an independent basis for 
authentication, a party can be compelled to produce the documents. See, e.g., Hubbell at 44-45; see 
also In re Grand Jury Subpoena Duces Tecum, I F.3d 87, 93 (2d Cir. 1993) ("Production may not 
be refused if the government can demonstrate with reasonable particularity that it knows of the 
existence and location of subpoenaed documents.") (citation omitted). In this case, as set forth in 
the 
Affidavit and the two Ex Parte Affidavits, the government already knows that: (1) the 
computers exist; (2) they are in the custody or control of Riley; and (3) there is an independent basis 
to authenticate them. Thus, Riley's "compliance with the subpoena would require mere 'surrender' 
of the [computers]," not a "testimonial communication" for purposes of Doe, and, thus, the 
subpoenas are enforceable (regardless of the computers' contents). Id. at 93-94 (citation omitted)." 
"As explained in the Ex Parte Affidavits, the United States has established that it can 
authenticate the computers without Riley's testimony. Even if it could not, however, that is not a 
basis for refusing to produce the items. In United States v. Koubriti, 297 F. Supp. 2d 955, 969-70 
(E.D. Mich. 2004), the court ordered the production of the defendant's handwritten notes that were 
in the possession of defense counsel where the United States knew of the existence and location of 
the notes. 
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