DS9 Document EFTA00787717

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA IN RE: CASE NO. 09-34791-RBR ROTHSTEIN ROSENFELDT ADLER, PA, Debtor. ECF # 6325, 6326, 6344, 6345, April 13, 2018 The above-entitled cause came on for hearing before the Honorable RAYMOND B. RAY, one of the Judges in the UNITED STATES BANKRUPTCY COURT, in and for the SOUTHERN DISTRICT OF FLORIDA, at 299 E. Broward Blvd., Fort Lauderdale, Broward County, Florida on April 13, 2018, commencing at or about 1:30 p.m., and the following proceedings were had. Transcribed from a digital recording by: Cheryl L. Jenkins, RPR, RMR OUELLETTE & MAULDIN COURT REPORTERS. INC. EFTA00787717 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 l' ,,e. 2 APPEARANCES: SEARCY DENNY SCAROLA BARNHART & SHIPLEY, by JACK SCAROLA, Esquire On behalf of Bradley J. Edwards EDWARDS POTTINGER, by BRADLEY J. EDWARDS, Esquire BRITTANY N. HENDERSON, Esquire On behalf of Farmer Jaffe SCOTT LINK, Esquire and RICE PUGATCH ROBINSON STORFER & COHEN, by CHAD P. PUGATCH, Esquire On behalf of Jeffrey Epstein CARLTON FIELDS, BY NIALL McLAUCHLAN, Esquire JOSEPH IANNO, Esquire On behalf of Fowler White AKERMAN, LLP, by JOAN LEVIT, Esquire On behalf of Michael Goldberg PAUL G. CASSELL, Esquire (via telephone) On behalf of LM, EW and Jane Doe ALSO PRESENT EDWARD BRISCO ECRO - Electronic Court Reporting Operator OUELLETTE & MAULDIN COURT REPORTERS. INC. EFTA00787718 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 ECRO: All rise. THE COURT: Good afternoon. Please be seated. MR. SCAROLA: Good afternoon. MR. EDWARDS: Good afternoon, your Honor. THE COURT: All right. Court calls the matter of Rothstein Rosenfeldt & Adler. May I have appearances for the record? MR. SCAROLA: Good afternoon, your Honor. My name -- excuse me. THE COURT: We have an antiquated sound system in this courtroom. MR. SCAROLA: And I have a booming voice, sir, so I don't think it will be a problem, but my name is Jack Scarola. I am counsel on behalf of Bradley Edwards. Mr. Edwards is here in a dual capacity. He has joined in the motion on behalf of his law firm, Farmer Jaffe, and is also representing Farmer Jaffe. With us also at counsel table is Brittany Henderson, and we are the moving parties in this matter, your Honor. THE COURT: All right. MR. SCAROLA: And I'm just reminded by the sign that I'm supposed to -- I don't need to spell my first and last name. Okay. Thank you. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787719 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 THE COURT: Step aside so the other parties can come up to the mic. MR. SCAROLA: Yes, excuse me. MR. EDWARDS: I was just introduced by Mr. Scarola. Brad Edwards on behalf of Farmer Jaffe. MR. McLAUCHLAN: Good afternoon, your Honor. Niall McLauchlan on behalf of Fowler White. I'm here with my partner, Joseph Ianno, at the table, and Ed Brisco, who is a managing partner of Fowler White. He's here because of his obvious concern about the allegations in the motion. MR. PUGATCH: Good afternoon, your Honor. Chad Pugatch, P-u-g-a-t-c-h, here as co-counsel for Jeffrey Epstein, along with Mr. Scott Link, who will introduce himself. MR. LINK: Good morning, Judge. Do you need me to spell -- L-i-n-k, first name is Scott, S-c-o-t-t. Thank you, ma'am. Thank you, Judge. MS. LEVIT: Good afternoon, your Honor. Joan Levit for the liquidating trustee, Michael Goldberg. We are not participating in this disagreement. However, we just wanted -- the liquidating trustee just wanted to state on the record that there is no longer a bankruptcy case, as your Honor is aware. The case has been confirmed, and there is a liquidating trust, OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787720 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 which we are resolving, and that this Court is aware that its authority is based on what powers were granted in the liquidating plan. So, we're just monitoring the hearing, and unless your Honor needs us, we're going to be quiet for the rest of the case. THE COURT: Thank you. Thank you. All right. We have three matters on the Court's calendar today, motion for order to show cause and the responses thereto, joinder, filed by interested party Bradley Edwards, motion to intervene, motion for joinder. Turning to the motion to intervene, is Peter Shapiro present in the courtroom? MR. EDWARDS: Your Honor, I was informed that Mr. Paul Cassell was to call into this hearing on behalf of L.M., E.W. and S.R. THE COURT: I don't MR. EDWARDS: I don't know what arrangements he made. THE COURT: No such arrangements were made. So, we'll just -- on the motion to intervene, that will be continued. It won't be heard. MR. EDWARDS: Thank you, your Honor. ECRO: (Inaudible) -- an e-mail. He was right. Let's call CourtCall. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787721 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 THE CLERK: Okay. ECRO: Do you want me to print you a calendar that shows his name? THE COURT: Can you print it here? ECRO: I can. (Thereupon, CourtCall was connected.) RECORDING: Thank you for making a telephonic court appearance. Your CourtCall or Court Conference operator will be with you momentarily. OPERATOR: Thank you for standing by. May I have the name of your Court, please? ECRO: U.S. Bankruptcy Court, Judge Raymond B. Ray. OPERATOR: Thank you. One moment and your operator will be right with you. ECRO: Thank you. OPERATOR: Good afternoon. My name is Karina with CourtCall. I'll be assisting you today. ECRO: Thank you. We are ready for the call. OPERATOR: Thank you, ma'am. I'll go ahead and join counsel through. THE COURT: Mr. Cassell, are you on the phone? MR. CASSELL: Yes. Hi, this is OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787722 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 Paul Cassell. THE COURT: Spell your last name for the court reporter. MR. CASSELL: Cassell is C-a-s-s-e-1-1. THE COURT: And who are you representing in this matter? MR. CASSELL: I represent putative intervenors L.M., E.W. and Jane Doe, who have a pending motion for leave to intervene. THE COURT: All right. Let me ask, is there any opposition to the motion to intervene? MR. SCAROLA: Not on behalf of the moving party, your Honor. MR. McLAUCHLAN: Judge, we do have some opposition. It appears that E.W. and Jane Doe weren't even clients, weren't even part of the litigation for which the subpoena was issued. So I think the motion to intervene as to those two parties should be denied. The only one, even according to the victim's reply, they say the client refers to L.M. So that's only one of the three putative intervenors. For that reason I think the motion should be denied as to E.W. and Jane Doe. MR. PUGATCH: Your Honor, on behalf of Mr. Epstein, we would join in that objection, that limited OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787723 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 objection. THE COURT: Mr. Cassell. MR. CASSELL: Yes. L.M., it appears, has not been contested. With regard to E.W. and Jane Doe, the e-mails in question pertain to all three victims. Therefore, all three victims should be allowed to intervene. Mr. Epstein had an opportunity to file a written response where we could have provided a reply in more detail. He did not do so. Fowler White filed a response, and only dropped a footnote raising a different kind of argument in opposition. So these are new arguments that are being advanced. I think it's quite clear that the victims have significant and compelling interest at stake, and they should be allowed to intervene. THE COURT: Is there any dispute that the e-mails in question refer to L.M. and E.W.? MR. SCAROLA: Your Honor, our position is that the e-mails refer to all three of the putative intervenors. MR. MCLAUCHLAN: And, Judge, just for the record, Fowler White, we haven't seen the CD, so we don't know who is on there, but I do note that Mr. Cassell is technically wrong, because Mr. Epstein, in his response, OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787724 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 9 specifically said on Page 3 of his response, that two of the three intervenors, E.W. and Jane Doe, were not parties during the litigation and the 2010 order. MR. LINK: Your Honor, may I be heard? THE COURT: Yes. MR. LINK: (Inaudible) -- objection. The three -- oh, sorry. Those three intervenors who are seeking to intervene in this Court have been allowed to intervene without objection in the state court proceeding, so that they can protect their attorney/client privileges if such exist. So as far as their being able to protect the e-mails, and whether they're going to be admissible, and whether they're confidential, the state court judge has that issue, and they are participating in that proceeding, Judge. THE COURT: So I'll grant that motion. Mr. Cassell, see to the order. MR. CASSELL: Thank you. THE COURT: All right. Let's describe, before we get started, just what we're talking about. Is it one disk, two disks? Is it boxes of goods? MR. SCAROLA: Your Honor, the --- THE COURT: I just want the record to be OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787725 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 clear. MR. SCAROLA: Yes, sir. The origin of the information in dispute, we understand is a single compact disk that contains a very large number of e-mails. THE COURT: And is that the disk that was referred to as -- it was in one of the pleadings, was found in a box? MR. SCAROLA: That's what we have been told, your Honor. We don't have, obviously, direct information of that, but we have been informed that that disk was included in one of 36 boxes that were reviewed by the law firm of Link & Sartory, obtained from the Fowler White law firm, who were predecessor counsel to Mr. Epstein, and were the direct object of this Court's order prohibiting retention of that specific information. MR. LINK: So the record is clear, it's Link & Rockenbach. MR. SCAROLA: Link & Rockenbach, not Link & Sartory, excuse me, old firm name. MR. McLAUCHLAN: Judge, yes, the motion alleges that there was a single -- I'm sorry? ECRO: If you're going to speak from there --- MR. McLAUCHLAN: Judge, the motion refers to OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787726 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Pagell the single CD that was supposedly in Fowler White's files, that's correct. There was originally, my understanding is, two CDs that were delivered to Fowler White for printing. Those documents were then put onto one CD, with Bates numbers, and the documents were printed. So we now have a single CD, that's correct. THE COURT: And is the information contained on this disputed CD anywhere else in the state court file? MR. McLAUCHLAN: I'm not aware of the state court file. MR. SCAROLA: Your Honor, the information contained on the compact disk included both privileged and non-privileged information. THE COURT: But it wasn't subject to disclosure, so it didn't go to the special master and privilege log? MR. SCAROLA: If I could, perhaps it would be helpful if I briefly trace the history for the Court. THE COURT: Okay. MR. SCAROLA: Your Honor may recall that the law firm of Rothstein Rosenfeldt & Adler imploded as a consequence of Scott Rothstein's involvement in a massive Ponzi scheme. That firm became the subject of bankruptcy proceedings. A special master was appointed. The special OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787727 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 12 master took control of the records of the law firm, including the law firm's electronic records. At the time that that occurred, litigation was pending between Mr. Epstein and Bradley Edwards. Mr. Epstein issued a subpoena in that state court proceeding seeking information from the electronic files of the bankrupt law firm, and the determination was made that in order to deal with privilege assertions of all of the e-mail records of the law firm, that, over Mr. Edwards' objection, and the objection of the law firm, the electronic documents were to be turned over to Fowler White so that Fowler White could print out a hard copy of Bates stamped, numbered e-mails extracted from those multiple compact disks. This Court entered an order on November 30, 2010, recognizing the fact that Fowler White was at that time representing Mr. Epstein, an adversary of Mr. Edwards in the state court proceeding, and that order expressly prohibited Fowler White from retaining any copy, electronic or otherwise, of the information that was turned over to them solely for purposes of performing the administrative task of Bates stamping and printing out copies, one to be delivered to Judge Carney, serving as Special Master on behalf of the bankruptcy trustee, and a second copy to go to the Farmer Jaffe law firm, so that a OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 13 privilege log could be prepared. All of that related to the subpoena that was issued in the state court proceedings. Your Honor's order reads, in relevant part, Fowler White will not retain any copies of the documents contained on the disks provided to it, nor shall any imagines or copies of said documents be retained in the memory of Fowler White's copiers. Should it be determined that Fowler White or Epstein retained images or copies of the subject documents on its computer or otherwise, the Court retains jurisdiction to award sanctions in favor of Farmer, Brad Edwards, or his client. That order was entered in November of 2010. As far as any of the interested, protected parties, that is Farmer Jaffe, Brad Edwards and his clients were concerned, that order was complied with. We did not learn otherwise until on the eve of the trial of the circuit court case that has been pending since before 2010, just a matter of a few weeks ago. A supplemental exhibit list was filed by the law firm of Link & Rockenbach listing documents on the privilege log that was constructed by the Farmer Jaffe law firm in accordance with this Court's order, listing documents and identifying them by the same Bates stamp OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 14 numbers that had been placed on those documents by Fowler White. THE COURT: And submitted to the Special Master -- MR. SCAROLA: And sub --- THE COURT: -- and to Farmer Jaffe. MR. SCAROLA: That's correct, sir. One copy went to Farmer Jaffe, one copy went to the Special Master. The --- THE COURT: And apparently one copy was retained. MR. SCAROLA: The electronic records were supposed to have been destroyed. All that was to remain were the hard copies, with the electronic disks having been returned to Farmer Jaffe. So, there should have been no retention of anything by Fowler White. Mr. Link, in representations to the state trial court, after issues were raised with regard to how he came to be in possession of documents that he clearly was not supposed to have, represented to the trial court that he had obtained the disk containing the information that was listed as potential trial exhibits from the Fowler White law firm inside one of 36 boxes that he has told the Court he recently obtained possession of from Fowler White. We have no direct OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787730 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 15 knowledge with regard to those matters, but that's what the representation is that has been made. One thing that is absolutely clear, no one, other than Judge Carney and Farmer Jaffe is supposed to have any copy of that privileged material. It was specifically prohibited from being retained by the Fowler White law firm. It contains both attorney work product and attorney/client privileged information, and we are here today to ask your Honor to do five things. We would like a rule to show cause issued so that a determination can be made as to the full circumstances under which this Court's clear and unambiguous order has most obviously been violated. We would like a direction from this Court that Fowler White, Jeffrey Epstein, and Link & Rockenbach will submit to deposition so that sworn testimony with regard to the clear violation of the Court's order can be taken. We would like a final hearing scheduled on the order to show cause. We would like this Court, in the interim, to prohibit any further dissemination of any information derived from that improperly possessed privileged information, and we would like Link & Rockenbach directed to withdraw all filings that have been made in any court OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787731 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 16 referencing the contents of these documents. So those are the five things that we would hope to accomplish. I recognize the fact that at least on the Court's calendar, we were informed this was to be a 10-minute hearing. We thank your Honor for allowing us any time on short notice, and we need some guidance from your Honor as to the extent to which you want us to get into any further detail beyond that which I have presented to the Court, and we're fully prepared to do that, but those are the five things we hope to see accomplished, and we hope to see accomplished expeditiously, issuance of the order to show cause, a direction with regard to pre-hearing discovery, the scheduling of a final hearing, a prohibition against further dissemination in violation of this Court's order, and the withdrawal of all references in previously filed documents to this unlawfully possessed information. THE COURT: All right. MR. SCAROLA: And I'm happy to answer any other questions your Honor may have. I hope I have, although I've probably taken more time than you've wanted me to, responded to the inquiry the Court had. THE COURT: No, so Farmer Jaffe and Bradley Edwards want to take the deposition of Fowler OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787732 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 17 White, Epstein and Link? MR. SCAROLA: That's correct, your Honor. MR. LINK: Yes, your Honor. MR. SCAROLA: And with regard -- with regard to Fowler White, it would be the corporate representative with the most knowledge with regard to these matters, the same with regard to Link & Rockenbach, and as far as Jeffrey Epstein is concerned, obviously he was personally prohibited by the express language of the Court's order from possessing or accessing any of this information, and we would certainly want to take Mr. Epstein's deposition. While representations have been made with regard to the extent that Mr. Epstein has been in possession of, or had access to this privileged information, the record is completely devoid of any sworn representation by Mr. Epstein, and clearly that is essential in terms of this Court fashioning, or first of all determining who is responsible for these very serious violations, and in fashioning an appropriate response. Thank you, sir. THE COURT: All right. Response? MR. LINK: Thank you. MR. CASSELL: This is Mr. Cassell, and the intervenors join in all those motions as well. THE COURT: Thank you. OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787733 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 18 MR. LINK: Judge, if I can just respond briefly on behalf of Mr. Epstein. First, notwithstanding what Mr. Scarola said, there is no factual issue. There has never been an allegation that Mr. Epstein has ever had the disk. He's never said it, Fowler White has never said it. He never had the disk. THE COURT: Well, they're going to ask him that question. MR. LINK: I can make that representation to the Court. I can provide a sworn affidavit that he's never had it. He's never had the disk, plain and simple. So, if that's what the Court is interested in, I can represent that to this Court, and I believe Fowler White will stipulate to that, and I don't believe Mr. Scarola has any information or evidence that would suggest Mr. Epstein ever held this disk. So that's point one. Two --- MR. SCAROLA: May I respond? MR. LINK: I did not interrupt you, Mr. Scarola. MR. SCAROLA: I'm sorry. It's not our contention Mr. Epstein has the disk, your Honor. It is our contention that Mr. Epstein has OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787734 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 19 had access to the privileged information contained with-on the disk -- on the disk, and that simply is a distinction without a difference. Whether he received printed copies, whether he received information without getting printed copies really makes no difference. The point of your Honor's order was to prohibit access to privileged information. And I'm sorry to have interrupted, but I think it's important to clarify that point. THE COURT: Proceed, Mr. Link. MR. LINK: Thank you, Judge. So we now all understand that Mr. Epstein never had the disk. The only information Mr. Epstein ever received was from my law firm when I provided him select e-mails when we reviewed the disk, my law firm, in 2018. So Mr. Epstein has not had one piece of paper that they're claiming he shouldn't have, and I want to make sure the Court understands what this disk is. This is not a disk of privileged information. It's a disk of 27,000 pages of which they claim some of them are privileged. They submitted a privilege log, Mr. Scarola said it was for this Court. It wasn't. The privilege log is in Judge Hafele's court, in the 15th Judicial Circuit in Palm Beach County. OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787735 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 20 Judge Hafele had --- THE COURT: Filled with these 27,000 pages? MR. LINK: Pardon me? THE COURT: And that privilege list deals with these 27,000 pages? MR. LINK: It does, sir, and Judge Hafele has before him, as he should, since the privilege list, and the privileged documents, if they are privileged, are going to be presented to him hopefully in camera, that's the motion we have filed. I've asked for it in camera. Mr. Scarola has asked for it in camera in front of the state court judge. Why? Because the only thing that your Honor was involved with related to the cancellation of a hearing, and an agreed order, and I'm going to let Fowler White talk about Fowler White's issues from 2010, but I want to be very clear, so there is no mistake, I never had the disk, my law firm, Link & Rockenbach, until 2018. When we received the disk, which was part of a box delivered by Fowler White, we looked at it. It was sequentially numbered from 1 through 27,000. We looked at about 5,000 of those e-mails, Judge, before we were notified that there was a problem with our having the disk, and then we stopped looking. Of the 5,000 we looked at, your Honor, the OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787736 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 21 vast majority of them had to do with things like, what are you going to do Friday night? Are you going to this concert at the Broward Civic Center? Are you going down to the Marlins game? Where should we go for lunch today? There were 47 documents, 47 that I listed on a supplemental exhibit list and put those in front of Judge Hafele. Those documents are now sealed, the disk is sealed pursuant to Judge Hafele's order. I have had my client and his general counsel remove all reference to the documents that I've e-mailed to them. I have wiped my computers clean of all of the documents. This issue is sitting before Judge Hafele. Mr. Scarola and Mr. Edwards asked the appellate court, we have two appeals pending in the 4th DCA, one a writ of mandamus, and one a petition for cert. They asked the appellate court to strike every reference to -- generally that we've made to these documents. Without even requiring us to respond, the appellate court denied their motion. They've asked the appellate court to do what they're asking you to do. And with all due respect, I'm not sure how this Court can tell the 4th DCA what to do with its pleadings, but -- I honestly don't know how that would work. So, Judge what I want to make sure is clear OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787737 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 22 as it relates to Mr. Epstein is this, that this Court understands, he's never had the disk, never. He has never had any of the documents, the 47 that they claim are privileged, that no one has looked at, no in camera yet, we're working on that, I sent him those materials, not Fowler White. He did not get them in 2010. He received them in 2018, and he no longer has them. So, every single thing they're asking for has happened by agreement. We did an agreed order to seal the disk. We did an agreed order to take the disk that we had from Fowler White and it's in a sealed envelope. We've taken that disk and put it with the Clerk of the Court in state court. We have taken all of the exhibits, sealed them, numbered them, pursuant to Judge Hafele's order, and placed them in the Clerk's file. There has been no further dissemination. Until Judge Hafele removes the seal, if he does, those documents are going nowhere. The e-mails are going nowhere. The exhibits are going nowhere. Nobody has them. So, what is the one issue that I think is outstanding for this Court? I think there is only one issue, and I don't know, your Honor, that any discovery from my firm can tell you, or from Mr. Epstein can tell where the disk came from that ended up in Fowler White's OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787738 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 box. Only Fowler White can answer that question, if it can be answered. I don't know that they can tell you. It was 2010. Maybe somebody will be able to figure that out and they can address that, but the only issue, the only fact that we all don't know is, why is that disk in a box at Fowler White? Was it inadvertently kept? Was it given to them by the Special Master? I have no idea. I wasn't around here in 2010 doing this work, but I know this, without any hesitation, the 47 e-mails that are sealed and waiting for Judge Hafele to look at are not being disseminated anywhere. The disk that they're concerned about is sealed. There are no copies. It's not going anywhere. The appellate court has told them, no, we're not striking references to it, and they've asked Judge Hafele to do the same thing. He hasn't ruled on it. So, to ask this Court to instruct Judge Hafele what to do in his Chambers, and the 4th DCA what to do in their Chambers, I don't think makes sense, but I do think your Honor has the jurisdiction to look at your order and determine if the simple retention by Fowler White somehow is a violation of that order, and what's the consequence, if any. But to ask my law firm where it got the disk, when they know where we get the disk, I've OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787739 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 24 represented to Mr. Scarola. Mr. Scarola told Judge Hafele he accepted my representation. Maybe he's changed his mind, and he thinks I've teleported back to 2010, but we did not have the disk, your Honor. We've submitted an affidavit, we did not receive the disk until 2018. So what information through discovery I could provide, or my client could provide, who they've admitted didn't have the disk, is beyond me, Judge. THE COURT: Thank you. MR. LINK: Thank you. MR. McLACHLAN: Thank you, Judge. Niall McLachlan for Fowler White. A couple of just points of clarification from Mr. Scarola's presentation, and I think it's -- one of them is probably very obvious to the Court. Mr. Scarola suggested that upon the bankruptcy the Special Master took possession of all of the records of Rothstein. Of course what he meant by that was the bankruptcy trustee. MR. SCAROLA: Yes, I'm sorry, the Special Master had them as an agent of the bankruptcy trustee. THE COURT: Well, the chain of pleadings in the Rothstein main case starts with Docket Entry 617, 672, 807, 888, 1068, 1120 and 1194, which is the order . MR. McLACHLAN: That's correct, Judge, and OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787740 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 25 so here is the way it came about, there was litigation pending in the state circuit court in Palm Beach County. Mr. Epstein filed a subpoena from the state court to get copies of the Rothstein records. THE COURT: From Judge Stettin? MR. McLAUCHLAN: No, they filed it -- yes, from Judge Stettin as the trustee, that's correct. THE COURT: The trustee. MR. McLACHLAN: Yes, that's correct. There was a dispute about how that would be done That's when those orders started to be entered. I think the first one is probably the subpoena, and then the orders, which ended up with the order that we're talking about today. Another point of clarification, Mr. Scarola says that the order was entered over Farmer Jaffe's objection. He may have had some -- the law firm may have had some concerns, but it's very clear it's an agreed order. I don't know that that makes a lot of difference to the analysis, but I just want to be very clear, that was an agreed order, that's at 1194. So, that's why the state court is so involved here, because it was a subpoena from that court. That court was ruling on the objections. The only involvement of this Court was you set the protocol by OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787741 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 26 which the documents would be produced by the trustee, and then you entered the order, 1194, that's at issue here today, and that order said Fowler White shall not retain copies. We didn't, we sent them all to Farmer Jaffe in seven banker's boxes on November 10, 2010, and that e-mail is attached to our response. We sent a CD to Farmer Jaffe. We also sent a CD with the Bates numbers to Special Master Carney, who was to review the documents and go over the privilege log. When your Honor indicated -- Mr. Scarola indicated that one copy went to Farmer Jaffe, one copy went to Special Master Carney, and your Honor stated, and one copy was retained. We don't know that. We don't know how the CD was in our files. What's very possible, because our records indicate we didn't keep it. Our records indicate -- well, I told you, that they went to Farmer Jaffe and to Special Master Carney. We have no idea. What's quite possible, and the only way we could ever determine this would be to get access to the CD and have it evaluated by an IT specialist, which I don't think will be necessary for the reasons I'll discuss in a minute. We think it's quite possible either that Special Master Carney, when he finished his work on the case a couple of years later, said, oh, there is a CD, here is a CD that was sent to me OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787742 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 27 by Fowler White, I'm going to return it to Fowler White, and someone at the firm opened it and said, oh, this is Epstein, and just threw it in the box. The other possibility is that Farmer Jaffe, when they printed five boxes of allegedly non-privileged documents and sent them back to us, one of their paralegals may have dropped the box (sic) in the file. What's very, very clear is that from whenever it was received, in 2010, '11, maybe '12, through March of 2018, no one privileged materials, of defies belief that made any reference to the CD, the no one tried to use the CD. It sort Fowler White would have some sort of conspiracy to get a CD, according to the motion at least, to have retained a CD, have just thrown it in the box and then done nothing with it, of course, for eight years, and then all of a sudden when we turn over 36 bankers boxes to the new lawyer, he was entitled and that's what when the client to, they asked, we did. asks just for his files, which send all the boxes, Now, if the disk somehow got back into our file, which apparently it did, we don't know how, assuming it is the disk, but I have no reason to controvert that at this point, it's clear now that we don't have the disk. If it was in our files, we turned over 36 boxes, which included the disk, according to the affidavits filed. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787743 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 28 Okay. So, the facts as they exist now don't justify sanctions, and they don't justify discovery for the following reasons: I've already indicated what our investigation shows happened with the disks, and the e-mails are attached to our response. It's not entirely clear, and of course for a sanctions motion the order needs to be completely unambiguous, it's not entirely clear to me when I read that order that it's -- it certainly doesn't direct us what to do with the CD. It says you don't retain copies, all the copies were sent to Farmer Jaffe. We don't retain images on our copy machine, clearly didn't do that. If we later obtained a CD back, whether that's -- whether that's in violation of the order, I'm not sure. I don't think the order is that particularly clear, but that's not really the main point as to our response. The movants are asking for a finding of civil contempt, criminal contempt, and extensive discovery. Civil concept -- as your Honor probably knows, there are two sources of contempt powers, one is the Court's inherent power to enforce its orders. The other is, where applicable, Section 105(a) of the Code, where necessary to -- necessary and appropriate to enforce OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787744 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 29 provisions of Title 11. Courts have held, and we've cited them in our motion, that Bankruptcy Courts don't have the inherent power to find criminal contempt. Now based on the facts that I just laid out, I don't think there could ever be a basis for it, but this also gets to the discovery point, and even though the 11th Circuit in In Re: McClean, they affirm a finding of punitive damages, which are by definition criminal, because it's punishment, as opposed to purely compensatory damages, they did so specifically under Section 105(a), and that Court actually said the powers -- the court's power to find contempt comes under 105(a). I think that was possibly a little over-broad, because other courts have found inherent power to enforce courts' orders, but what's very clear here is that 105(a) can have no application in this case. The movants are not seeking to enforce any provision or rights under Title 11. All of the cases that I found where they're talking about putative sanctions, they're all for violations of the automatic stay, willful violations, for violations of discharge orders, as in In Re: McClean. So, there is that issue. Now, civil contempt, there are two purposes. One, purely compensatory, a flat amount is by definition OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787745 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 30 punitive, and that's criminal contempt. Civil contempt, it only deals with future conduct, not anything that's happened in the past, and what it says is, there are two purposes, to coerce compliance with the order that was allegedly violated. Well, you've heard we sent 36 boxes to Epstein, Epstein's counsel. We don't have the boxes. We don't have a disk. The other is to award fees that were incurred to obtain compliance. There is compliance. Even if there was a violation at some point when we received the disk back, there is no question there is compliance at this point. There is also -- you can get fees for damages as a result, but they haven't proven any damages. There is no damages alleged here. Their motion is interestingly devoid of any allegation of compensatory damages. What they say is they need discovery to determine the amount of their damages, which is kind of a remarkable proposition. If they've been damaged, they know it. They don't need us to prove their damages. I've never heard of that sort of thing in a discovery procedure. The other reason for contempt is they say we want to discover the extent of the complicity, and the appropriate punishment for a violation of this Court's OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787746 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3I order. That is by definition in the In Re: McClean case, and countless other 11th Circuit cases, and lower court cases, that's seeking criminal contempt sanctions, which I've already discussed I don't believe are before the Court. So, I don't believe, Fowler White does not believe that discovery is appropriate here. If your Honor finds there is some limited discovery, we've cited the pertinent 11th Circuit cases, and I noticed Mr. Scarola didn't ask for access to Fowler White's computer records, but I want to be very clear, there is no basis for that under 11th Circuit precedent, we've cited in our case, so I don't want, if your Honor says the motion is granted, I don't want Mr. Scarola to say, oh, well, then we get access to Fowler White's computer records. In order to justify that, you would have to they would have to show that they've served discovery on Fowler White, and that they believe Fowler White is destroying the evidence, or hasn't produced evidence. We're certainly nowhere near that point yet. Which gets us to another issue on the requested discovery, if your Honor is inclined to grant any, and that is discovery should be in the normal course, send out a request for production, there is an opportunity to respond, object where necessary, and have the Court OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787747 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 32 rule on objections. There shouldn't just be a carte blanche order saying they get to depose people -- everyone in the possible chain of custody at Fowler White, everyone in the possible chain of custody of Mr. Link's firm, and if your Honor finds there needs to be discovery, either for civil contempt, or if your Honor determines that you can rule on criminal contempt matters, or consider criminal contempt matters, the party that really needs discovery is Fowler White, and here is why: First, if Farmer Jaffe is claiming they've suffered damages, we certainly need discovery about that. Second, we need to look at the CD, the offending CD, we need to have it analyzed by an independent IT specialist, because we want to see if we can determine from that the chain of custody of that CD. If the CD shows that the documents were at any time opened by someone at Farmer Jaffe's firm, that means we got the CD back from them at some point after the production. If the CD shows that the documents were opened at any point by Special Master Carney, that would show that we got the CD back from Special Master Carney sometime after the production. So, I think it's there are a lot of issues here, Judge. I think at this point, given that Fowler White is undoubtedly in compliance, if we were ever OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787748 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 33 out of compliance, we are now in compliance with the order, so we do not believe that there is any basis for sanctions or for discovery, and we respectfully request that the motion just be denied, and we can go back to the circuit court and the judge can deal with the privilege issues there. Thank you, Judge. THE COURT: Mr. Pugatch. MR. PUGATCH: Your Honor, if I may on behalf of Mr. Epstein, we kind of went in reverse order, because Mr. Link got up to address the factual issues that were raised by Mr. Scarola, but I wanted to point out our legal position on behalf of Mr. Epstein, which is actually very simple. This hearing is to establish whether there is a basis to issue an order to show cause. All the other things that flow from what Mr. Scarola asked would only come after the Court determines that there is a basis to issue an order to show cause. As to Mr. Epstein, and I'm speaking only on behalf of Mr. Epstein, you've heard nothing today that would indicate that they've met their burden of a prima facie case. THE COURT: Well, but they want to take his deposition and ask him under oath, did you see the disk? OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787749 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 34 Did you ever see the disk? His answer is going to be very simple, no. MR. PUGATCH: I understand that, Judge, but you've already seen that in the form of the representations of counsel, and an affidavit has been offered. The issue of an order to show cause only comes after they've met their prima facie case, and they're not standing here telling you -- in fact, they've admitted they agree that Mr. Epstein never had the disk. So, if Mr. Epstein's possession of any of these materials only came through Mr. Link and his firm in 2018, that's a separate and distinct issue from the issue that they've raised in terms of compliance with the Court order. They've raised nothing to establish a prima facie case that Mr. Epstein violated that order. The other issues that they're raising are all being dealt with in the state court. They don't need to be dealt with in this Court. The issue of the sequestration of the materials, the materials under seal, the not further using, everything that you heard Mr. Link describe, that's being dealt with in the state court. That's what the consequence is of what's happened now, once there has been discovery, that in some manner this material got released, but they haven't met the burden of OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787750 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 35 showing there is a basis to issue an order to show cause against Mr. Epstein, and that is a requirement before we go to step two, to phase two of this whole proceeding, and we speak only on behalf of Mr. Epstein. Excuse me, Judge. MR. LINK: Can I have one moment to confer? THE COURT: Yes. MR. PUGATCH: The last point, Judge, would be if your determination today is that it's going to go forward in any form, or that there is going to be discovery, the discovery should be limited to strictly that one issue, and no other issue, which is, did you have a copy of the disk or not. THE COURT: Or have knowledge of it. MR. PUGATCH: Or have knowledge of it. THE COURT: All right. Thank you. MR. PUGATCH: Thank you. MR. EDWARDS: Your Honor, Brad Edwards on behalf of Farmer Jaffe. I want to just briefly dispel some of the in-clarity that's in the record right now. First is that a privilege log was not filed in this case. The privilege log was filed in this case, as well as the state court case. There has been a representation made that Mr. Epstein did not possess the disk, and I think that OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787751 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 36 we're playing semantics here. THE COURT: Well, I'm going to allow the deposition of Epstein, as to knowledge about the disk, or possession about the disk, very limited. MR. EDWARDS: Only about the subject of the disk, including dissemination to others, what he read from the disk, things of that nature, pertaining to the information on the disk, that's the only subject matter that we want to inquire about. MR. LINK: I think counsel is talking about the information I provided my client, which we know about, and has nothing to do with this Court's order. So, I thought your Honor was focused on whether Mr. Epstein, during the time period that Fowler White had the disk, before it was given to me, knew the disk existed, touched the disk, saw the disk, because I have represented to the state court and to this Court in my papers that once I received the disk, and we looked at it, we identified 47 exhibits, which we filed in the state court, and I showed those to my client. I don't know what the factual issue is, Judge. I thought the Court was focused on the original disk that Fowler White had in its possession, and whether Mr. Epstein was aware they had it, or if he ever had a copy of it, not what he's done in my case. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787752 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 37 THE COURT: Response. MR. EDWARDS: What has happened here is exactly what Farmer Jaffe knew was going to happen in 2010, and voiced repeatedly to the Special Master, when it was determined that Fowler White, on behalf of Jeffry Epstein, was going to be able to in-house copy this material and not keep any copies. The only thing that gave Farmer Jaffe any confidence whatsoever that Jeffrey Epstein would not retain, disseminate, review and later use to his litigation advantage the privileged materials on this disk was this order right here. The order of November 30th, 2010 was not only intended to preclude retention, that's where the problem begins. What we were really trying to preclude was reviewing and using the materials. So, in 2010, when Fowler White --- THE COURT: Your law firm prepared the order, and the order doesn't say that. MR. EDWARDS: Well, the order, the order does say --- THE COURT: It says should not retain any imagines or copies of said documents. UNIDENTIFIED: Or otherwise, on it's computer or otherwise. MR. EDWARDS: Right, Fowler White will not OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787753 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 38 retain any copies of the documents contained on the disk provided to it, nor any images or copies of said documents be retained in the memory of Fowler White's copiers. THE COURT: Well, I'm going to allow the deposition of the representative of Fowler White, to explain under oath, to answer the question, did they retain any copies in the computers. Obviously they're going to tell me the answer is no, and do they have any independent knowledge of how the disk got in the box. MR. EDWARDS: What we do know, though, that has happened, and what we're trying to determine is the scope and the breadth of what has happened, is that Fowler White, through transferring their boxes, has transferred this disk, along with all of the privileged information to Mr. Link, who has disseminated it to others, and he has represented on the record in the state court that he's disseminated --- THE COURT: It may show the facts, may show that Fowler White did not knowingly transmit the disk. They didn't -- they may -- their testimony may be that they had no knowledge. MR. EDWARDS: It may be, and may be, and maybe there is one sanction for an inadvertent transmission, and another for an intentional transmission. Regardless, once Mr. Link came into the possession of OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787754 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 39 this, as an agent for Mr. Epstein recently, he still put into the record summaries of this material that was improperly obtained. THE COURT: That's been all disclosed to the state court judge. MR. EDWARDS: That has all been disclosed, which is the problem. I mean, this is the use of these materials that never should have come into possession of anyone. THE COURT: From what I understand it's been sealed by the state court. MR. LINK: It has, your Honor. MR. EDWARDS: It's been sealed. MR. LINK: So --- MR. EDWARDS: It's been sealed, yes. The representation was made on the record by Mr. Link that he provided it within his law firm and his client, that being Mr. Epstein. When further asked by the court, has Mr. Epstein been provided with copies of the documents, or the contents of these privileged documents? Mr. Link replied, I just said my client, my law firm and my client, and I can say legal counsel, Mr. Goldberger. So, that's it. So we now know that this information that was improperly obtained was disseminated not only to OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787755 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 40 Mr. Epstein, the adversary who now has this information, it was also --- THE COURT: Take that up in the state court. MR. EDWARDS: That's in the state court, but your Honor reserved jurisdiction to accord the right sanctions for the violation, the violation being the retention and all the consequential damages that stemmed from that initial improper retention. THE COURT: Ten years and nothing. MR. EDWARDS: We don't know. I mean, we just don't know what Fowler White did with it for seven years, whether Jeffrey Epstein has actually had it for seven years. THE COURT: Well, you can ask Epstein that. MR. EDWARDS: Okay. I agree. MR. LINK: I've got (inaudible) -- if that's what the Judge, if you're ordering, that's what --- THE COURT: Well, I'm going to take the order to show cause under advisement. MR. LINK: Right. THE COURT: I'm going to authorize the deposition of the representative of Fowler White, and of Epstein, individually, limited as I've indicated on the record. MR. LINK: Very good, thank you. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787756 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 1 THE COURT: Mr. Pugatch, you draft that order. MR. PUGATCH: Will do, Judge. THE COURT: Run it by counsel. MR. SCAROLA: Thank you for your time today. THE COURT: Hold it. I'm not done. MR. SCAROLA: Oh, I'm sorry. MR. LINK: Thank you, your Honor. THE COURT: We're going to continue to take the order under advisement -- the order to show cause to a later date. I'll set it for a hearing. I'll make a determination as to whether or not, once discovery is done, let me -- there were my other notes. Oh, what is the alleged damages and claims of the parties, what sanctions are they seeking? MR. EDWARDS: Should I speak -- Brad Edwards on behalf of Farmer Jaffe. THE COURT: Well, no, just do a statement and file it -- MR. EDWARDS: Okay. THE COURT: -- so it's of record. The same with the other party, Mr. Cassell. MR. CASSELL: Yes, your Honor, we have that in Docket Entry 6345, we join in the request from Farmer Jaffe, and we have seven independent requests for the OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787757 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 42 victims, including damages. We would also like to be -- during the deposition we would like to be able to ask Epstein questions, including questions about who he has distributed these documents to. This involves a childhood sexual abuse case, and so if he's disseminating -- THE COURT: No, you're not going to -- MR. CASSELL: -- information about that --- THE COURT: -- depose Epstein on state court issues. You're going to be -- he's going to be limited in his testimony to if he had knowledge of the disk prior to it being disseminated -- UNIDENTIFIED: To Mr. Link. THE COURT: -- to Mr. Link. MR. LINK: Your Honor, may I ask that maybe one attorney on behalf of the movant, but not -- oh, I'm sorry, I'll come over here. Your Honor, may I ask two things? Is it okay if I -- I didn't mean to interrupt you. THE COURT: Go ahead. MR. LINK: One, might I ask that since we have limited -- THE CLERK: Stand by a mic. MR. LINK: -- questions you're going to allow Mr. Epstein to be asked, that one lawyer on behalf OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787758 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 43 of the movant ask them, and second, if you're going to allow Fowler White to do what it wants, which is to have somebody look at the disk, it has been sealed by the state court. THE COURT: No, I didn't say that. MR. LINK: Okay. I just wanted to make sure that --- THE COURT: I said I'm going to -- they can ask -- their designated representative can be asked if he had any knowledge of the disk. MR. LINK: Very good. Thank you, Judge. MR. SCAROLA: Your Honor, may I request a clarification of the Court's order? I want to be sure that we are clear with regard to the scope of the inquiry that we're permitted to conduct, particularly with regard to Mr. Epstein. THE COURT: Yes. MR. SCAROLA: Thank you, sir. Your Honor has made repeated reference to being permitted to inquire of Mr. Epstein about his possession of the disk. Your Honor's order related not only to the electronic documents, but related as well to any copies of the documents that were made. Mr. Link has made it clear in his OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787759 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 44 representations to your Honor today, and he has stated previously that he sent copies of the privileged documents to Mr. Epstein. Mr. Epstein, we know, retained those documents, and retention of those documents is a clear violation of your Honor's order. What we would like to be able to inquire about, in addition to whether Mr. Epstein had possession of the disk, is whether Mr. Epstein had possession of copies of any of the information obtained from that disk, including the e-mail THE COURT: But the disk wasn't discovered until Link found it in the 36 boxes. MR. LINK: Correct, your Honor. MR. SCAROLA: Well, yes, sir, that's what has been represented to the Court, but what Mr. Link has said is that he transferred that information to Mr. Epstein. THE COURT: After he found it. MR. SCAROLA: Well, he obviously couldn't transfer it before. THE COURT: But that's what you're litigating in state court. MR. SCAROLA: No, sir, I'm sorry, that's not what we're litigating in state court. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787760 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 45 What we are litigating in state court is the malicious prosecution claim. What we want to be able to litigate before your Honor is violation of this Court's order, and retention of documents obtained from that disk is a clear violation of your Honor's order. THE COURT: I disagree with you. MR. SCAROLA: May I refer the Court to specific language in that regard? Your Honor stated, and I quote, should it be determined that Fowler White or Epstein retained images or copies of the subject documents on its computer, or otherwise, the Court retains jurisdiction to award sanctions. So, if Mr. Epstein has retained copies --- THE COURT: Eight years later MR. SCAROLA: Yes, sir. Yes, sir. THE COURT: -- from his lawyer MR. SCAROLA: That is correct, sir. THE COURT: -- who discovered --- MR. SCAROLA: That is correct, no matter when it occurs, it's a violation of this Court's order. THE COURT: Take that up in your state court litigation. MR. SCAROLA: So, just so that I'm sure, your Honor is prohibiting --- OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787761 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 l'a2c 46 THE COURT: I'm going to do the order authorizing the depositions. MR. SCAROLA: All right. Thank you, sir. MR. EDWARDS: Judge, thank you. THE COURT: All right. Now, I want -- Mr. Cassell and Mr. Edwards, so that it's understood, I want an individual statement filed setting forth your alleged damages and what you're seeking. MR. EDWARDS: On behalf of all three? THE COURT: Yes. MR. EDWARDS: Yes, your Honor. MR. PUGATCH: So, Judge, will your order MR. CASSELL: Yes, your Honor. MR. PUGATCH: -- be the entire order then, that you asked -- THE COURT: Well --- MR. PUGATCH: -- me to prepare, or do you still want me to do an order that continues the order to show cause hearing, or are you going to wrap it all up in one order? THE CLERK: All one order. MR. PUGATCH: Okay. THE COURT: We'll do a THE CLERK: With a nice little bow. THE COURT: We'll do it in one order. OUELLETTE & MAULDIN COURT REPORTERS. INC. EFTA00787762 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 47 All right. That concludes today's hearing. MR. PUGATCH: Thank you. MR. LINK: Your Honor --- MR. SCAROLA: Can we have a timeframe with regard to Mr. Epstein's appearance, your Honor? THE COURT: It will be in the order. MR. SCAROLA: Thank you very much, sir. MR. LINK: Thank you very much, Judge. Your Honor, may I ask one more thing -- THE COURT: Wait, wait, wait, wait, wait, wait. MR. LINK: -- before we depart? THE CLERK: 6345. THE COURT: 6345, motion for joinder, that's going to be granted, 6345 is granted, Cassell will see to that order, as he will on 6344. OPERATOR: Pardon the interruption, your Honor --- MR. LINK: Your Honor, may I ask one question? THE COURT: Hang on for a minute. Let me make sure I've got everything. OPERATOR: I'm sorry, pardon the interruption, your Honor. It looks like Mr. Cassell has disconnected. I'll go ahead and redial back out to him, OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787763 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 48 okay? Would you like me to re-connect him? THE CLERK: We'll call --- THE COURT: We'll call him. THE CLERK: CourtCall, that won't be necessary. I'll call the attorney myself. Thank you. OPERATOR: Thank you very much, Madam Clerk. THE COURT: All right. That concludes --- MR. LINK: May I, your Honor? THE COURT: Yes. MR. LINK: I was just going to ask for -- since Mr. Epstein's deposition is so narrow and limited by this Court's order, may he appear by phone? He's in New York City, your Honor, or sometimes not in the country. MR. SCAROLA: We would request an opportunity to depose Mr. Epstein in person, your Honor. Mr. Epstein is a self-acknowledged billionaire. He maintains a home in Palm Beach County, Florida. THE COURT: The deposition will take place in the Southern District of Florida. MR. SCAROLA: Thank you very much, sir. MR. EDWARDS: Thank you, your Honor. MR. PUGATCH: Thank you, Judge. MR. SCAROLA: Your Honor, thank you for your time today. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787764 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 49 THE COURT: Thank you. MR. LINK: Thank you very much, your Honor. UNIDENTIFIED: Thank you for your time. THE COURT: Let's keep all this together. THE CLERK: CourtCall, we will disconnect. (Thereupon, the hearing was concluded.) OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787765 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Pane 50 CERTIFICATION STATE OF FLORIDA COUNTY OF MIAMI-DADE : I, Cheryl L. Jenkins, RPR, RMR, Shorthand Reporter and Notary Public in and for the State of Florida at Large, do hereby certify that the foregoing proceedings were transcribed by me from a digital recording held on the date and from the place as stated in the caption hereto on Page 1 to the best of my ability. WITNESS my hand this 18th day of April, 2018. CHERYL L. JENKINS, RPR, RMR Court Reporter and Notary Public in and for the State of Florida at Large Commission #GG 138863 December 27, 2021 OUELLETTE & MAULDIN COURT REPORTERS. INC. EFTA00787766