Blanche Loses as Judge Denies Stay of Order Requiring Epstein Foreign-Language Docs to Be Produced

0:00Michael Popok:We got a late night order and a breaking development of the Katie Fang case involving the Epstein files. As Judge Sullivan shows, he's not going to be stampeded into a decision given little or no time to make a ruling. And having Todd Blanche, the Department of Justice, breach at least one local rule by not conferring with Katie Fang's lawyers before they even filed the motion for stay. This is all about the foreign language documents. It's foreign language documents, which Katie Fang's lawyers remind the court that the Department of Justice have conceded, already admitted that they are responsive and required to be produced pursuant to the Epstein File Transparency Act.

0:42Michael Popok:It's not that they don't think they're relevant. They say it's just hard for us to review. Well, the judge has already decided that for you. The Epstein Files Transparency Act has already decided that for you. You must produce. This new order that just came out was a denial of Todd Blanche's attempt to have the court stay his decision and not have in the next week or two the Epstein files foreign language documents produced. Donald Trump and Todd Blanche want to continue to hide them. They're playing an elaborate game, an irregular game, as Katie Fang's lawyers say, of hide and seek. And it's not going to work.

1:20Michael Popok:I'm Michael Popok. We're kicking off Tuesday on Legal AF. Take a minute, hit that free subscribe button. Let's get into what just got decided. It was relatively easy for the judge to decide this one because even though there were four independent grounds that Katie Fang's lawyers said justified denying the motion for stay. They say they were trying to get the trial judge to stay his requirement that those documents, foreign language documents, Lord knows what's in it. Whatever is in it, we know that Donald Trump wants to hide them, that they be produced in due course over the next week. And he didn't like that.

1:57Michael Popok:So he wanted to take an appeal. So he asked the judge to temporarily stay his order so he could take his appeal, except he gave nobody any notice for that. And there's other underlying problems procedurally with the motion for stay. And so I think the judge, in pretty short order, took a look at what was argued and said no. Now, he did give Donald Trump two additional days this week, two additional days to go run to the D.C. Court of Appeals, the Federal District Court of Appeals for the District of Columbia, and try to get a stay from them. Now, that's going to depend on who is in the three-judge panel.

2:37Michael Popok:Let's be frank. We've been doing this a long time together here on Legal AF. If it's two Trump-appointed judges like Walker, Rayo, or Katzis, it's going to end up, if it's two of those, they're going to grant the stay. If it's not two of those, if it's one of those or none of those, I don't think the stay gets granted. Seriously, that's how that's going to play out. I'll tell you so once we find out who the panel is. So now they're going to run up and file their, the Trump side filed their motion for stay with the appellate court now that the trial court has refused. Now, let me read to you from Katie Fang's also yesterday late night filing.

3:19Michael Popok:and she gives on page two the four reasons why the court should deny the motion for stay, which they did. So once again, another victory for Katie Fang, an uninterrupted chain of victories in a case that people said she shouldn't file, she couldn't file, she couldn't have it survive a motion to dismiss. They were all wrong. Okay. Now, one of the most on the nose points of her filing, which I think sometimes gets lost in the shuffle of the case, in the fog of the case, is the following line on page one. Defendant conceded by his silence that foreign language documents are not exempt from the Epstein Files Transparency Act disclosure mandate.

4:08Michael Popok:What does that mean? It's because the act of Congress required the production of all of these documents as defined. The Department of Justice found and identified foreign language documents, which they think would have been responsive, didn't object and say these are not required to be produced, just said we can't translate them. I think that's a very good point that sometimes, as I said, gets lost. Here's the four reasons that Katie Fang told the judge that he should deny the motion to stay related to the foreign language documents. First, a local rule, 7M, requires that a party make a good faith effort to confirm before filing that kind of motion.

4:54Michael Popok:And of course, the defendant, Blanche, never did. Second, the defendant seeks to stay the enforcement order pending the appeal, not the underlying preliminary injunction. See, the judge issued a preliminary injunction a couple of months ago in Katie Fang's favor. Preliminary injunction is just one part of the case. Below the surface is the major case, which goes all the way to trial, which has to do with millions and millions of pages of Epstein files and whether a court-appointed monitor should be appointed on top of that production. But the preliminary injunction dealt with five categories. The FBI 302 handwritten notes about a victim who said she was victimized by Donald Trump when she was 13 years old and other categories of documents, including these foreign language documents.

5:43Michael Popok:That's the preliminary injunction. See, they never appealed the preliminary injunction. They never sought a stay related to the preliminary injunction. All they are now seeking a stay of is the judge's follow-on order. Like, hey, you didn't hear me once on the preliminary injunction order. Let me tell you again, this is just a second follow-on order. So they never, the underlying preliminary injunction was never appealed and never, they never sought a stay. So in other words, they're arguing in a way of waiver and acquiescence. They've already, they can't seek a stay of the thing because the underlying preliminary injunction, they never sought a stay of.

6:20Michael Popok:Third, defendant's request for a stay is, he incurred three months ago, is untimely and inappropriate. In other words, same argument. You've had an obligation to produce those documents for over three months, and you waited three months until just in the last couple of days, You've waived it. You're untimely. And fourth, defendants' arguments fail to clear the high bar required to obtain the extraordinary remedy of a stay pending an appeal in the middle of a case. Now, the judge came out with his order. We're going to post all this on Substack today. The order, which came out late last night, says two things.

7:03Michael Popok:One, you didn't confer. You didn't meet and confer. You didn't talk to the other side, Donald Trump. You didn't talk to the Katie Fang side about this to try to resolve it. And on that ground alone, that rule alone of conferral, I'm going to deny your motion. Look, I've been on the receiving end of that before. You know, sometimes I don't think a particular motion under the way the rules are written is covered by the rule to require a meet and confer. And the judge says, no, you're wrong, Mr. Popak. You had a meet and confer. Go meet and confer and refile your motion if you need to. Happens. 35 years of practice, it happens.

7:36Michael Popok:That's what happened here. They didn't meet and confer. And then they try to give the judge some sort of ridiculous, we need to know by five o 'clock on Monday. He said, yeah, I got a better idea. I'll let you know five o 'clock on Monday that you lost. Then the judge says, even if I didn't rule against you because of this violation of the local rule because you didn't meet and confer, I would still rule against you on the merits. So on page four, he says, even if the court did not deny the motion because of the failure to comply with the duty to confer, the court would deny it on its merits, assuming without deciding that the court's order from September 16th is appealable.

8:15Michael Popok:In other words, I'm not even sure what I just ordered is appealable. The court would deny the motion for the reasons set forth in the plaintiff's motion memorandum opinion granting the plaintiff's motion for preliminary injunction. In other words, I've already given you the underlying jurisprudence and rationale and analysis three months ago as to why you need to produce the foreign language documents, and I stand on that ruling. He says, because of the fast approaching deadline for defendant to initiate review and production of the foreign language materials, the court will temporarily stay that portion of its order so that the defendant may file, if they want to, a motion for stay pending appeal with the Court of Appeals for the District of Columbia, the Federal Court of Appeals in D.C.

9:00Michael Popok:So he's staying it two more days until the 24th to allow that to be filed. So once that's filed, he then wants an update. The party shall file a joint motion or notice with recommendations for further proceedings by no later than three days after the D.C. Circuit resolves the defendant's forthcoming motion to stay in that court. So there's still going to be activity in Judge Sullivan's lower court trial court level, but he's waiting to see if there is a stay granted by the appellate court. And if there is, then he wants the parties to tell him what the further proceedings should be. See, there's the underlying merits of the case, the summary judgment, the trial related to the millions of pages and the court appointed monitor that still has to be resolved.

9:51Michael Popok:This issue is not going to delay the progression of the case in the district court level. So it's going to happen in two places. Sullivan's going to continue to progress the case with Katie Fang, and the appellate court's going to decide what to do on the stay. And again, here's the watching guide. If you see two Trump judges, it's going to be a stay. If you don't see two Trump judges, it's not going to be a stay. That's my prediction. Put it in the time capsule. We'll open it in a couple of days or a week or so, and I'll let you know what the developments are there. A programming note. Katie Fang is going to be joining me later tomorrow for a interview, and I'll have it up here on Legal AF very, very quickly, about her string of uninterrupted successes and how I think she's changed the face of litigating and jurisprudence when it comes to bringing a case like this.

10:42Michael Popok:I'm Michael Popak. Take a minute, hit the free subscribe button. You want to read all these papers for yourself? Come over to Legal AF Substack, where we will post it today under Filings AF. Until my next report, I'm Michael Popak. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well.

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