DS9 Document EFTA00788112

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff, VS. SCOTT ROTHSTEIN, individually, BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS VOLUME I DATE TAKEN: Tuesday, October 3rd, 2017 TIME: 10:01 a.m. - 4:43 p.m. PLACE 205 N. Dixie Highway, Room 10C West Palm Beach, Florida BEFORE: Donald Hafele, Presiding Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by: Sonja D. Hall Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 (561) 471-2995 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788112 2 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 APPEARANCES: For Bradley Edwards: SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 By JACK SCAROLA, ESQUIRE By DAVID P. VITALE, JR. For Bradley Edwards: BURLINGTON & ROCKENBACH PA 444 W Railroad Avenue, Suite 350 West Palm Beach, FL 33401 By PHILIP MEAD BURLINGTON, ESQUIRE For Jeffrey Epstein: W. CHESTER BREWER, JR., P.A. 250 S. Australian Avenue, Suite 33401 West Palm Beach, FL 33401 By W. CHESTER BREWER, JR., P.A., ESQUIRE For Jeffrey Epstein: TONJA HADDAD, P.A. 315 S.E. 7th Street, Suite 301 Fort Lauderdale, FL 33301 By TONJA HADDAD COLEMAN, ESQUIRE For Jeffrey Epstein: ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Ave. South, Suite 1400 West Palm Beach, FL 33401 By JACK A. GOLDBERGER, ESQUIRE For Jeffrey Epstein: DARREN K. INDYKE, PLLC 575 Lexington Avenue New York, NY 10022 By DARREN K. INDYKE, ESQUIRE Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788113 3 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: We have various motions on the Edwards counterclaim that was brought against Mr. Epstein relative to the remaining count of malicious prosecution. I have read as much as the materials that someone can sit down and read for the better part of five or six hours. I tried to highlight as many of the provisions as I thought were appropriate as possible. Mr. Goldberger, I see that you are here. I have not yet seen a motion to stay. MR. GOLDBERGER: It's here, Your Honor. It's ready to go. I am going to file it today. I am going to file it this morning. I will give a courtesy copy to all counsel and for the court as we speak. THE COURT: What I was going to say -- Mr. Goldberger and Mr. Scarola, if I could be heard on the subject is this. The motion to stay, which you essentially explained the purpose behind it -- at least as to most of the motions that are scheduled for today is not really germane to those issues as far as the Court is concerned. There may be some peripheral relevance Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788114 4 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in that respect. But as far as my review of the materials are concerned, it really doesn't apply here today that I can really see. So I don't know if you want to deal with that issue first. MR. GOLDBERGER: I agree with the Court in large part that the motion to stay does not necessarily impact some of the matters here today, other than the motions in limine, Your Honor. Mr. Scarola and his team of lawyers are trying everything they can to inject into your case criminal investigations of Mr. Epstein, civil lawsuits that have been settled, all of which, if Your Honor is the gatekeeper, allows those matters to come into evidence, would very much impact our motion to stay because he wants to go -- he wants to dive headfirst into matters that are a subject of the non-prosecution agreement and other possible prosecutions of Mr. Epstein. So I do agree with the Court that many of the matters can be heard today. But Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788115 5 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 anything that approaches or touches on evidentiary matters as to what the Court may allow into evidence on their cause of action for malicious prosecution alleging that Mr. Epstein did not have probable cause to file a lawsuit against Mr. Edwards. If they want to go on this fishing expedition and put in front of the jury all kinds of matters totally unrelated to the cause of action, then, yes, the motion to stay does need to be heard. THE COURT: Thank you. Mr. Scarola. MR. SCAROLA: Your Honor, Jack Scarola, David Vitale from Searcy, Denney, Scarola, Barnhart and Shipley; and Mr. Phil Burlington of Burlington and Rochenbach, on behalf of Mr. Edwards in this matter. As has been acknowledged, we have not yet seen a motion to stay. It has not been filed. It's hard for me to see how it could possibly have any merit. But you and I are both speculating in that regard, since we have not seen a motion. In light of the fact that the Court set Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788116 6 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 a deadline for filing motions in this matter, and that deadline has long passed, I suggest that we should proceed with everything that is scheduled to be heard as if no motion to stay existed, because no motion to stay exists. So we are ready to proceed. THE COURT: That's fine. I think that, again, without the filing for the motion to stay and the terms and conditions of the motion, as well as what the ultimate request for relief may be, is unknown at this juncture. However, at the same time, there will be arguments that are made relative to motions in limine, that while they may touch on what would be formally filed as a motion to stay, maybe -- that being the arguments -- relevant to the Court's consideration of those specific items, irrespective of the motion to stay, meaning, for example, there's been some reference to Mr. Epstein as a, quote, serial child molester, end quote. That can be discussed, in my respectful view, outside of a formal Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788117 7 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion to stay. The one thing that I do want -- and I'm sure it's in this three- or three-and-a-half-foot proof of paper is the plea agreement, what Mr. Epstein actually pled to. That would be of assistance to me if it's tabbed somewhere or if it's somewhere handy for someone to get their hands on for me to see that. MR. GOLDBERGER: When I send a courtesy copy of my motion to stay, I will include a copy as well. THE COURT: If somebody has it handy, I will need it during the proceeding, because I want to see that -- because it's only going to be material to some of the Court's decision-making, as far as I'm concerned, in how far we go with regard to the terminology that's going to be used, what Mr. Epstein pled to. And obviously, the touchtone here and malicious prosecution is obviously one element -- one of the important ones as far as malice the issues. So we recognize that malice being one Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788118 8 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 of the primary element of the malicious prosecution claim, what may have been in the mindset of Mr. Epstein when he filed the claim against Rothstein, Edwards and LM -- initials being used only since she was allegedly a minor at the time that the suit was brought -- is of importance to the Court. What was the motivation? What was the theory? What was the intent? All of these things do go to malice. So, while I would love to be able to try a case that is sanitized, both from the acts of Rothstein and the Rothstein firm and those who were involved in the Ponzi scheme that Mr. Rothstein engaged in, as well as sanitized as to a great deal of the allegations as it relates to those claims that Mr. Epstein settled pertaining to the claims of sexual misconduct on the part of Mr. Epstein I am not certain that we are going to be able to get that far. However, there will be limitations, I can assure you, that the Court will institute once I have been able to hear the respective arguments of both sides. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788119 9 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There have been concessions made by both sides in their papers. There's a modicum of evidence as it relates to these issues that's likely going to be heard by the jury. So, let's go ahead and proceed. What I would like to do is proceed first with the motion for summary judgment that was filed by Mr. Edwards -- strike that -- by Mr. Epstein -- excuse me -- as it relates to Mr. Edwards' fourth amended counterclaim. So let's start there. Thank you both, gentlemen. MR. GOLDBERGER: Your Honor, may I take my time at the podium just to address some issues that's been festering a little bit? I don't know if the Court wants to hear from me. THE COURT: Let's wait, Mr. Goldberger. I promise if those matters are still festering at the conclusion of today's hearing, I would be glad to hear from you. I would like to get into the substantive matters if we can. MR. GOLDBERGER: Thank you, Your Honor. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788120 10 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: With Your Honor's permission -- MR. GOLDBERGER: I apologize, Mr. Scarola, but we do have a motion for enlargement of time that is pending, and we would like to be heard on that, at least, prior to you hearing the summary judgment motion. I apologize, Mr. Scarola, for jumping in. THE COURT: Okay, the motion of enlargement of time relative to the motion filed on September 25th, 2017? What was the title of the motion? MR. GOLDBERGER: It's Ms. Haddad Coleman's motion that was filed. I am going to let her argue it, Your Honor. But it addresses all issues that we have not had sufficient time for lots of reasons to be prepared to argue the motion for summary judgment today. Your Honor will recall at the hearing of September 15th when I was on vacation there were two motions that were pending at the time, and the Court said we are going to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788121 11 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 be ready to go on those two motions. We received a barrage of motions subsequent to that time filed by Mr. Scarola and his team of lawyers. We have three lawyers. One is a criminal defense lawyer and two sole practitioners who are working on this case, and we have a client who has been devastated by the hurricane, whose home is gone, we cannot communicate with, so the motion for enlargement is based on all of the matters I'm asking Ms. Haddad Coleman to address. THE COURT: I saw this reference to a motion for enlargement of time, the motion filed on September 25th, and I didn't see anything else. Which motion are you talking about? Again, I didn't go back and try to cross-reference dates with material here. It is not a easy task for one person to do. MS. HADDAD COLEMAN: May I approach, Judge? I have an extra copy. The motion is very short, the basis for which is clearly delineated within it. As the Court's aware, we had a hearing Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788122 12 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on September 15 to get a hearing date on our motion for summary judgment, at which time you had us agree to file certain motions by September 25th and our responses to those motions to be filed by September 28th. At the time of this hearing, Judge -- again, I am a sole practitioner. I reside in Broward County. My office is in Broward County. I did not regain power, Internet or any other access until late after hours Monday, September 18th, 2017. As the Court is also aware, at the last hearing at which the Court ordered these deadlines, Mr. Brewer -- who is also a sole practitioner, who is my civil co-counsel in this matter -- indicated to the court in the transcript that he was going to be gone the entire week of September 25th. We were able to file motions that we felt the Court had discussed at the hearing and wanted to hear, which were filed previously, in this case being the motion in limine. The motion for summary judgment had been filed in June. And then three motions directed at discovery for which we were Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788123 13 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 compelling better responses from Mr. Edwards, which again, had been filed in the past, because the Court may remember, this case was stayed for three years while it was on appeal -- from 2014 until June of this year. As of September 8th when Hurricane Irma hit the Virgin Islands -- Mr. Epstein resides in the Virgin Islands -- I have little to no ability to communicate with him since that date, and as such, he has been unable to really participate in anything dealing with the motions that are pending for today. And on September 25th, we received a number of substantive motions from Mr. Scarola. And in addition, we've received motions directed at our motion for summary judgment. And then in addition to that, on the 28th, received replies, responses, motions to strike and things of that nature, just related to the summary judgment alone, never mind discovery issues, motions in limine and things of that nature Judge. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788124 14 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It was just me. And in those three days I also had one arbitration, one mediation, five depositions scheduled previously. And Yom Kippur and Rosh Hashanah fell within those dates which you gave us to respond. We are not trying to delay, Judge. We are ready to go forward. As the Court knows, the Florida Supreme Court finished with this case mid-June. Within a week and a half we had our motion for summary judgment filed. We have been actively pursuing discovery. This is not for a delay tactic at all, Your Honor. Many of Mr. Scarola's motions, especially those germane to discovery issues -- and you said that you don't think anything will be impacted by the stay here -- my client's right to attorney-client privilege and things like that are the crux of many of these motions. And with little to no input from Mr. Epstein, or any ability for him to access his files or even communicate with us regarding these motions, I am ineffective to proceed. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788125 15 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I haven't had a chance to go forward with him in the three-day turnaround time on these motions. It's left me in an uncompromising position where I either have to disobey an order of this court or provide ineffective assistance to my client. Basically right now as we stand on many of these motions that Mr. Scarola would like heard today, as you have noticed by the notice of hearing he filed for today, I have little to no ability to really get into the issues with my client to discuss what is needed to go forward, much less prepare for them, in light of the very short turnaround time and the holidays that fell within those dates. THE COURT: Okay. Mr. Scarola. Thank you, Ms. Haddad Coleman. MR. SCAROLA: Your Honor, with regard to the hearing at which Mr. Edwards was represented by able counsel, at which an agreement was reached before the Court that a deadline would be established of September 25 to file pretrial motions, and that both sides would have three days after Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788126 16 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 September 25 in which to file responses, the Court expressly stated there would be no replies that would be filed, and that the issues joined by those motions filed by September 28th and responded to -- excuse me by September 25 and responded to three days later, by September 28th, would be heard today. This case has been pending since 2009, and none of the issues that are raised in any of the matters pending before Your Honor are issues that come as a surprise to anyone. Indeed, the interrelationship between the assertion of Fifth Amendment rights and the ability to proceed with the prosecution and defense of claims on Mr. Epstein's part has been a primary focus of determinations to be made by the Court since the filing of our motion for summary judgment on Mr. Epstein's claims against Mr. Edwards, which were set for hearing. And on the eve of that hearing, with no response filed to that motion for summary judgment -- a primary focus of which was you Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788127 17 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 cannot use the Fifth Amendment as both a sword and a shield -- you cannot file a claim for RICO violations for criminal actions arising out -- excuse me -- for civil relief arising out of criminal actions, for fraud, for abuse of process and malicious prosecution, knowing that you intend to hide behind the Fifth Amendment with regard to issues central to those claims. Those issues were raised years ago and they have continuously arisen at every stage of this proceeding when discovery was sought from Mr. Epstein. And knowing about those problems he has chosen to hide behind the Fifth Amendment. So there's nothing new here. And quite frankly, I am amazed that opposing counsel keeps referring to Mr. Scarola's team of lawyers when Your Honor is well aware that there have been many, many, many lawyers involved in the defense of Mr. Epstein for many years. And Mr. Epstein has all of the resources necessary to be able to respond in a timely fashion to the legal issues present Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788128 18 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 in this case. These are legal issues. They don't require further testimony from Mr. Epstein. And the excuse that there was a hurricane that swept through the Virgin Islands many weeks ago when allegedly Mr. Epstein's home was destroyed, and Mr. Epstein had every ability to come to Palm Beach County, Florida, to consult with his lawyers, if they felt that was necessary, those assertions, in the absence of any supporting affidavit, any presentation of any evidence whatsoever, ought not to sway this court from abiding by the terms of an agreement that was entered into with knowledge of all of those things. That hurricane didn't happen between the time that Your Honor held the last hearing in this case and September 25th. It did not occur between September 25th and September 28th. All of those factors that they are now complaining of existed at the time that that agreement was entered into. THE COURT: Thank you. MR. SCAROLA: Thank you, sir. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788129 19 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 MR. BREWER: Your Honor, may I respond since it's been stated that I agreed -- THE COURT: Sure. Who else is sitting with you? MR. GOLDBERGER: Your Honor, this is Mr. Darren Indyke, who is in-house counsel to Mr. Epstein. THE COURT: Darren? MR. GOLDBERGER: Indyke, I-N-D-Y-K-E. THE COURT: Thank you. Welcome. MR. BREWER: Your Honor, I want to speak to the statement agreement inchoate. When we appeared before you on September the 15th -- that was the date of the hearing we had asked the Court to give us a date to hear our motion for summary judgment. We appeared at calendar call for that discussion. At that time there was pending our motion for summary judgment. There was a motion that was filed by Mr. Scarola that went to net worth of Mr. Epstein, and it merely said objections not well taken, which is a nullity of the pleading. And the night before -- you might Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788130 20 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 remember the colloquy where Mr. Scarola said that he was going to be filing a motion to strike. And he, at the time, thought it hadn't been filed yet, but in fact I complimented his assistant and said, No, she did get it in late yesterday afternoon. It was filed late on the 14th of September. That's what was pending. We discussed with the Court the fact that we were preparing a motion in limine. It goes to many of the issues, really, at the heart of this thing. The statement was made to the Court that we thought that we could get that motion in -- we were preparing and thought we could get it in the next week. THE COURT: Which was done? MR. BREWER: Which was done. Since that time -- and I counted -- there had been 21 motions in other matters filed, which we had no idea about. And to sit there and say, Oh, we agree to this deluge of discovery and motions is just not correct. THE COURT: I really wasn't contemplating a significant number of Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788131 21 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 motions to be filed on the 25th of September. I used that as a deadline so that anything could be cleaned up and prepared and proceed accordingly. So, a couple of things -- you can have a seat, Mr. Brewer. Thank you very much, sir. Number one, I don't want to be accused of being insensitive to those who have suffered through the recent storms, nor do I want to be accused of being insensitive to the fact that Jewish holidays fell within the time period at issue. But at the same time, the information, at least that is contained in the documents that I have reviewed, for example, reflect Mr. Epstein's access to airplanes. There's been no suggestion -- I don't know one way or the other whether or not there is access to airplanes at this point in time. Again, I agree with Mr. Scarola there was no -- has been no factual recitation in the form of an affidavit or declaration that was submitted to support any of these opinions. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788132 22 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Also, while I eminently respect choice of counsel, at the same time there has not been any demonstration that, for whatever reason, Mr. Epstein does not have the wherewithal economically to be able to have sufficient representatives so as to fortify lead counsel in the preparation and defense of the -- in preparation of any written materials or in the defense of the subject claim. So again, while I have personal empathy for anyone who is a sole practitioner, that is not my choice. That is the choice of a sophisticated business person in the form of Mr. Epstein, who again, to my knowledge, and totally from what I have read in the materials and his agreement, at least at one point in time, to stipulate to a significant net worth. There is no suggestion of economic hardship so as to limit his choice of lawyers or law firms, lawyers or law firms that have sufficient resources to be able to respond instantaneously to many of the arguments that were raised by way of the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788133 23 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motions filed on September 25th. However, with that said, because we really weren't anticipating -- I wasn't anticipating, I should say -- multiple motions being filed at the very end of the deadline, we will take those on a matter-by-matter basis. And if I find that they are not purely legal in nature and would require some type of additional factual development, then I will take that into consideration. The reason I set this a couple of months before trial was to try my best to be able to streamline between now and then what may be necessary and properly address any pretrial issues so that we can hopefully resolve as many of those that we can before the commencement of trial and not during trial, which is when appellate courts have been loathed to allow the trial courts to take valuable time away from those who are mostly volunteering their time -- that being the jury -- and engaging in lengthy motion practice during the time that the jury is seated. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788134 24 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 As I said, I would like to begin with Plaintiff/Counter-Defendant Epstein's motion for summary judgment on Defendant/ Counter-Plaintiff Edwards' fourth amended counterclaim. Let's proceed. MR. SCAROLA: Your Honor, the first issue raised with regard to that motion is the argument that that motion is precluded by virtue of collateral estoppel. And Mr. Burlington res judicata -- excuse me Mr. Burlington is here to address that. If it's easier for the Court, I have an extra copy of the motion that I can hand to Your Honor. THE COURT: Okay. Thank you. MS. HADDAD COLEMAN: Your Honor, just for the record, again, that motion from Mr. Burlington was filed on the 28th, and our motion for summary judgment was filed June 30th. And the other two motions directed at our motion for summary judgment -- one of which is to strike Mr. Epstein's affidavit, and another one is in opposition -- again, we haven't had time to go over or prepare for. These are Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788135 25 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 brand-new arguments that -- THE COURT: I wouldn't expect you to. It was actually filed on the 25th, not on the 28th, but I haven't seen it. MR. SCAROLA: Your Honor, that is in fact, a motion to which a response has been filed. I can hand that to Your Honor as well, if you would like. THE COURT: Sure. That's fine. Thank you. MR. SCAROLA: Here you go, sir. I am not sure what the objection is, since this is a motion filed on the 25th. It was responded to on the 28th, so it would appear that it is ready to be argued today. THE COURT: I have no problem. It is simple, so let's proceed. MS. HADDAD COLEMAN: Judge, I am just trying to find it. I apologize. There's so many filed. THE COURT: Whenever you're ready step up to the podium please. Thanks. I would rather first hear the substance of the motion, then we will listen to the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788136 26 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion to strike. MS. HADDAD COLEMAN: I'm sorry? THE COURT: I would like to hear from you first on the substantive aspects of the motion, then I will listen to the motion to strike. I believe the counter-argument, if you will, or the arguments to defeat the motion are partly substantive, partly procedural. MR. SCAROLA: Your Honor, in case the Court is keeping track of these, the motion for summary judgment was responded to by Mr. Burlington in his motion that raises a procedural issue with regard to res judicata. There's also a motion to strike Mr. Epstein's affidavit, which was the primary support of the motion for summary judgment, and a second independent response in opposition to the motion for summary judgment. They are all in this group. THE COURT: The motion -- strike that. The response that you filed in opposition was the one I concentrated on during my review of the motion. I tried to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788137 27 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 match both up to the other. I now see that I did have the motion from Mr. Burlington and the response from Ms. Haddad Coleman. MS. HADDAD COLEMAN: Judge, the motion to strike the affidavit, the June 30th affidavit to summary judgment, that motion filed by Mr. Scarola -- again within this time frame, which we were forced to operate in -- is solely based on the Fifth Amendment. It's a huge argument about the Fifth Amendment, Judge. And I am about a third of the way complete with it, but it was requiring me to go through the deposition of Mr. Epstein. And I can submit and proffer to the Court that I'm only up to page 33 of Mr. Epstein's deposition. But he substantively answered all questions that were related to this lawsuit. THE COURT: Let's go ahead and proceed with the substance of the motion and we will go from there, please. MS. HADDAD COLEMAN: Good morning, Judge. Jeffrey Epstein's motion for summary judgment is based on a very simple issue that was not addressed by this Court in a Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788138 28 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 previous motion or on the appellate level, and that is the issue of probable cause. As this court is aware, there are several elements that must be proven by Mr. Edwards in order for him to prevail on a case of malicious prosecution. So what is relevant and germane to this issue of probable cause is that it's a very low threshold, and it's very easily satisfied by Mr. Epstein. And Mr. Epstein had probable cause at the time he filed his complaint against Mr. Edwards. Contrary to Mr. Edwards' assertions that everything that has been laid out in this case, since 2009, Mr. Epstein filed suit against Mr. Edwards, Scott Rothstein and LM, based on the undeniable and inconvertible facts of what was transpiring at RRA specifically with what will be referenced as the Epstein cases during the time in question. As this Court and everyone in this room is aware, in November 2009 it became national news that Scott Rothstein was the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788139 29 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 named partner of Rothstein, Rosenfeldt, Adler -- a firm which Brad Edwards, at the time, was part of -- in funding the largest Ponzi scheme in history. It was also known -- Judge, if you look through our motion -- I just want to point out to the Court and put on the record every single undisputed fact to which we refer -- there is a citation -- and the documentation is provided to you -- that supports these undisputed facts. It is not just the affidavit of Jeffrey Epstein, although, that is also listed herein. Part of that Ponzi scheme is that Rothstein and his partners and other coconspirators who were not determined at the time this lawsuit was filed, or at the time the federal government became involved to prosecute Mr. Rothstein, that they were defrauding investors into purchasing fake settlement agreements or inflated settlement agreements that were being litigated with cases by RRA. One of those cases, Mr. Epstein and the rest of the United States became aware, were the cases that Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788140 30 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were being pursued by Mr. Edwards and RRA against Mr. Epstein. In December 2009, the federal government filed a 66-page -- I'm sorry -- 36-page information against Scott Rothstein stating that RRA, which Edwards was a partner at that time, was a racketeering enterprise, and that Rothstein, his partners and other named coconspirators were committing crimes in order to defraud investors and further their Ponzi scheme. It is noteworthy to mention, Judge, that subsequent to filing this motion, we did file an amended supplemental list, in which we've added that earlier last week -- the federal government has come out and stated that they are seeking to withdraw their recommendation that Mr. Rothstein receive a reduced sentence because he has lied to the government. We feel that also is important and goes to the crux of what Mr. Rothstein did and continued to do, even after he was caught. It is important to know, Judge, through these facts, if you look through the motion Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788141 31 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the unnamed conspirators of Mr. Rothstein were people who worked with Mr. Rothstein, they were being investigated by the Florida Bar as well as by the federal government. There was testimony given that these investors and these -- and there are citations to all this testimony in which they were given the Epstein cases to look at. Scott Rothstein and his other unnamed coconspirators brought to the attention of these investors the Epstein cases and created outrageous allegations pursuant to which they stated that because Mr. Epstein had all of this money they could get the defendant -- in this case, Mr. Epstein -- to settle for substantial sums of money. Scott Rothstein admitted to all this, and was sentence to 50 years, and he's currently serving that sentence. Mr. Epstein also became aware during that time that news reports that Rothstein had been disbarred and that the Florida Bar was investigating at least half of the attorneys employed by RRA in connection with Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788142 32 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this Ponzi scheme. On November 20, 2009, the law firm of Conrad Scherer initiated a lawsuit against Rothstein and others entitled Razorback Funding, again, a copy of which is provided to the Court and is relied upon as undisputed facts related to the summary judgment motion in which the Epstein cases and the use of the Epstein cases to defraud the investors is discussed at length. Judge, in our motions on pages five through seven, specific sections of the Razorback complaint is cited to the Court. It states that purported settlements, albeit fraudulent, were based on actual cases being handled by RRA. For example, one of the settlements involved was based upon facts surrounding Jeffrey Epstein, the infamous billionaire financier. Representatives of D3 -- which was the investment company -- were offered the opportunity to invest in pre-suit $30 million court settlements against Epstein involving different underaged female plaintiffs, cases that were being prosecuted Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788143 33 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 by Brad Edwards, while a partner at RRA. In addition to that, Judge, at this time in question, which Mr. Edwards worked at RRA -- was a partner there from April to November 2009, Judge. A very small period of time. There were several filings in federal court which raised suspensions of Mr. Epstein, his attorneys and the government. For example, there were some filings about dignitaries and other parties being on Mr. Epstein's planes. One of the plaintiffs for whom Mr. Edwards was prosecuting cases against Edwards (sic) had ever made allegations such as that. Further, according to the defrauding of investors, the Epstein cases -- there's several discovery practices and motions that were filed to salaciously sexually charge the nature of the facts and make it explosive that will truly convince investors that Epstein would in fact be quick to settle these cases. Also during that time, Judge, what Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788144 34 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 Mr. Edwards did in the federal cases personally as legal counsel or lead counsel on those Epstein cases -- again, as a partner of RRA -- there was a filing of a federal claim for LM, who was a plaintiff in this case filed in federal court against Mr. Epstein based on the same exact allegations of facts and circumstances that were filed in the state court, but then salaciously embellish some of the facts. And again, this complaint was never served on Mr. Epstein, but it was shown to the investors, and there is testimony to that fact. Then Mr. Edwards filed a motion. It was a motion asking that the court -- Judge Marra -- federal district court -- to enter a bond -- enter an order requiring Mr. Epstein to post a multi-million-dollar bond. Judge Marra threw that out, stating that there was no basis in fact. Judge, that was in Doe versus Epstein, 08-80893 in which the Court said there was no basis in fact for it. This motion went through such detail Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788145 35 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 delineating the financial net worth of Mr. Epstein. And again, this was solely that very small time period during which Mr. Edwards was a partner RRA, and during which the Epstein cases were being used to defraud investors. This is the information known to Mr. Epstein at the time he chose to file suit. Contrary to what Mr. Edwards is trying to do, and the information he tries to bring forth in this Court, if the Court looks at the initial complaint that Mr. Epstein filed, it clearly delineates solely these facts upon which he relied, as does Mr. Epstein's deposition testimony -- which we were prepared again in response in opposition to Mr. Scarola's motion to provide to this court. These facts show what was in Mr. Epstein's mind at the time he filed this suit, at the time he sought counsel, attorneys to file this suit on his behalf. He testified he read about this case in the Daily News. His affidavit delineates all the facts upon which he replied. And Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788146 36 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 even if the Court didn't look to Mr. Epstein's affidavit, which we submit is consistent with his deposition testimony, his response to certain discovery requests, the undisputed facts available at the time he filed suit, the indictment of Scott Rothstein, every report in which it's discussed what Mr. Edwards and RRA were doing in these Epstein cases, as well as the filings in the federal court, and the Razorback complaint itself, which was one of the largest settlements in Broward County, and it did, in fact, was one of the things upon which Mr. Rothstein relies in trying to get his sentence reduced, was if those investors were able to get all of their money back. The Razorback complaint was a successful suit. And at the time Mr. Epstein filed the suit, that was the case that was filled just before he did. THE COURT: What I was going to ask, though, is remember that this case was filed not only against Mr. Rothstein, but against Mr. Edwards. The focus really has to be on Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788147 37 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the probable cause issue pertaining to Mr. Edwards. Perhaps that's a reason why Mr. Rothstein did not counterclaim or filed his own malicious prosecution case, was the focus has to be on Mr. Edwards. MS. HADDAD COLEMAN: Yes, Judge. And at the time Mr. Epstein filed suit against Mr. Edwards, Mr. Edwards was the lead counsel of these cases. Mr. Edwards signed every pleading. Mr. Edwards, pursuant to Florida Bar rules and his ethical duties as a lawyer, is charged with knowledge of what is transpiring in his cases. Mr. Edwards, during this relevant time period, was prosecuting these cases. Mr. Edwards engaged in discovery practices. Mr. Edwards signed pleading practices. Mr. Edwards engaged in these acts. Judge, it's important to note, again, it's very easy to sit here and Monday- morning quarterback in 2017. In 2009, and as late as 2012, the federal government was still saying, unknown, unnamed, unindicted coconspirators. Judge, even the federal government was Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788148 38 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 unsure who was involved at that time. Again, it's very easy to sit back later and say Mr. Edwards wasn't involved. But the information available to Mr. Epstein at the time -- which is solely the time period germane to when he filed suit -- was that Mr. Edwards' name appeared on all these pleadings. Mr. Edwards was engaging in discovery. Mr. Edwards was seeking to depose David Copperfield and Donald Trump and Bill Clinton when his clients had never alleged they were on planes with them. If you look at all of these facts in 2009, coupled with a criminal investigation, the largest Ponzi scheme in Florida history, and the government saying unknown and unindicted coconspirators, including the fact that the Florida Bar was investigating over half of the attorneys, and that Mr. Edwards himself was a partner at that firm. His business cards, his letterhead, everything said Brad Edwards, partner, RRA. That is the information at the time. Mr. Rothstein might have chosen not to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788149 39 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 file against Mr. Epstein. I have no idea and I can't speak to that. But I can tell you at the time Mr. Epstein filed suit, the undisputed facts known to him at that time clearly and unequivocally showed that what was transpiring in the cases that were being prosecuted against him by Mr. Edwards and his law firm, at which he was a partner, were used to fleece money and defraud investors. And that based on what was transpiring in those Epstein cases from April to November 2009, while Mr. Edwards was a partner at RRA, gave the requisite probable cause to Mr. Epstein to believe that these cases were used to do this and that it did cause him damage. THE COURT: That assumes -- as both sides have talked about the issue of undisputed facts -- that assumes that these facts are undisputed, because the case law has well established what facts and circumstances constitute probable cause is a pure question of law. Whether they exist is a pure question of fact. And I will omit the citations. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788150 40 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And it says, Question of whether probable cause exists is thus a jury issue, only when material facts are in controversy. So speak to me about that, please. MS. HADDAD COLEMAN: Judge, the inconvertible facts -- again, at the time this was going on, Mr. Edwards filed 100 -- let me look to see how many pages it was I apologize. It's in my motion -- filed a federal complaint against Mr. Epstein, again, for plaintiff LM, when the LM lawsuit was already pending. That complaint was -- and again, that's undisputed. He did it. Judge -- THE COURT: Really, I guess what I'm speaking about, Counsel, is more so mindset. In other words, what you're suggesting to me today is that Mr. Edwards, without, to my knowledge -- and please correct me if I'm wrong -- but without, to my knowledge, anything but pure supposition at this juncture, even eight years later -- MR. SCAROLA: Excuse me. Your Honor said Mr. Edwards, and I think you meant to say Mr. Epstein. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788151 41 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 THE COURT: No. I meant to say Mr. Edwards. MR. SCAROLA: I apologize for interrupting then. THE COURT: That's okay. Not a problem. -- but simply at this juncture, eight years later, that somehow Mr. Edwards had the mindset that you are suggesting. And you may be right. I'm not necessarily saying or taking a position one way or the other as to whether you are right or wrong, but the proposition that you are espousing is one of Mr. Edwards having the mindset back whenever this federal case was filed, to file it in a manner that would have been disingenuous and contrary to the state case that was filed. And that, to me, raises factual issues in and of itself, does it not? Because, again on the one hand we don't know -- for example, there has been no deposition testimony provided to the Court of Mr. Edwards where he said, Yes, I am going to fall on my sword and admit to you that I Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788152 42 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 filed this federal case as a rouse to inflate the value of these factored cases. You smile because the suggestion that Mr. Edwards is going to admit to this is probably very, very slim. But at the same time what I'm trying to suggest to you is the fact that when you're injecting a mindset -- you may be very, very correct based upon the facts that are involved here. You may be -- you may be able to convince the members of the jury about that. But I don't see where, under these facts and circumstances, the facts are so crystalized so as to yield but one result here. In these cases that I have reviewed, most of them deal with false arrest issues. And the facts aren't terribly controverted. There were arrests made. There were videos reviewed, and was there probable cause based upon that black and white video, the fact that the arrest was made, the report that was made, and the glowing threshold that's associated typically with probable cause analysis. So I don't have a problem with your Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788153 43 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 position in terms of what you are stating to me. But my concern is that the factual issues that may still be -- might be uncontroverted is raised by what you've just indicated. Was it Mr. Edwards' mindset to file these federal claims -- one or more federal claims to bolster the Ponzi scheme that Rothstein was later convicted on, or did he have another motive to do so, or was there another reason to do so? I don't know that, because there hasn't been, to my knowledge -- again, please correct me if I'm wrong -- is there anything in the record that would support that conclusion, other than the argument to say, Well, it was Edwards' mindset to do that to inflate the value of the Ponzi scheme, when, to my knowledge, Edwards has never been charged? He's not, to my knowledge, an unindicted coconspirator. Rothstein, at best, was equivocal in his deposition. And to what extent we can believe what he said, I agree with you, it's suspect, at best, based upon the recent charges that he has accumulated. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788154 44 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 But at best, what Rothstein is saying is that maybe Edwards would have turned him in. He was unequivocal about many of the other people in his firm. So that's what I am trying to figure out. What is the undisputed fact, and can there be undisputed facts when we are speaking about the mindset of an individual and the motive that one may have had where it's not explained, to my knowledge, one way or the other. MS. HADDAD COLEMAN: I will speak to all of that. I will start with your most recent question first. Judge, Mr. Edwards -- although he does like to get up here and espouse how Mr. Epstein hides behind privileges three of our motions filed today before this court for consideration were motions to compel Mr. Edwards to answer questions in his deposition and his interrogatories. Every question -- every single solitary question posed to Mr. Edwards when asked why he did everything he did in the Epstein cases, he asserts work product or claims Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788155 45 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 privilege and refuses to answer the question. THE COURT: I am here all the time to be able to take care of those matters. If there's ever a need for time, you know that if I have it, I give it to you. So, you know, this has been going on a long time. And I recognize that some of these matters are unresolved. But unresolved matters are probably the most dangerous grounds to grant summary judgment for the trial judge. MS. HADDAD COLEMAN: My second point, which would go right to you granting summary judgment, I can't offer you what was in Edwards' mind because Edwards doesn't tell US. With respect to the standard for probable cause for summary judgment, why Edwards did what he did really isn't relevant, Judge. It's a question of probable cause. The burden of proof is on Edwards, not Mr. Epstein. Mr. Epstein was germane to the issue right now before this court. And whether or not Mr. Epstein had probable cause to file Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788156 46 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 suit is what was in Mr. Epstein's mind. And what was in Mr. Epstein's mind is based on what, we submit to this court, are incontrovertible facts. It is an incontrovertible fact that Mr. Edwards filed a 234-page, 156-count federal complaint on behalf of LM when the identical case was pending in state court. Fact. Fact, he never served it on Mr. Epstein. Fact, federal court dismissed it. Fact, it was shown to investors, and it was filed three days before the order coming down on RRA. That is what Mr. Epstein knew at the time, to answer your question about that complaint. If the Court would like to ask me about any of the other facts, I would be happy to address those as well, but the law is clear that the probable cause -- the only issue for this court to consider -- is not why Mr. Edwards did what he did. It's what was in the mind of Mr. Epstein at the time he filed suit. And what was in the mind of Mr. Epstein at the time he filed suit is delineated in the first eight pages of our Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788157 47 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 motion and is supported by pleadings in courts, orders from federal judges, statements from other people involved in the cases, and in the pleadings provided by Mr. Edwards himself. If Mr. Edwards had a reason that he did all of these things, he certainly has never provided it to us. THE COURT: Okay, thank you. I will give you some time to rebut. I appreciate your presentation, both written and oral. Thank you, Ms. Haddad Coleman. Counsel for Mr. Edwards. MR. SCAROLA: Yes, Your Honor. We would like to begin with Mr. Burlington's arguments that these matters are foreclosed as a consequence of prior Kelly proceedings. THE COURT: All right, Mr. Burlington. Welcome. MR. BURLINGTON: Phil Burlington on behalf of Counter-Plaintiff Edwards. We filed a separate motion to strike in response to the summary judgment, based on law of the case. We did it as a separate motion because, otherwise, they would not Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788158 48 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have had an opportunity to respond, because your order and the agreement provided for no replies. You can treat this as a motion to strike. You can treat it as a basis to deny the motion. But what is very clear is, you previously ruled on the summary judgment hearing -- and it is three and a half years ago, so all of us who have not lived with the transcript can be understood for not remembering. But Epstein moved for summary judgment on three grounds: litigation privilege that the Wolfe case compelled with, and also that we were unable to prove two elements of the malicious prosecution claim. One of them was lack of probable cause, and the other was bona fide termination. Your Honor felt bound by the Third District's decision in Wolfe, but you did point out, rather clearly in the transcript, that you felt there were questions of fact that barred summary judgment for both the probable cause and bona fide termination. And I'm reading from page 24 of that Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788159 49 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 transcript of January 27th, 2014. And you state, I would not grant the motion because of at least these two reasons, that I believe there are questions of fact related to the probable cause issue, as well as the bona fide -- and they have determination. Should be termination issue, additionally. And after a little colloquy, you say, That's why I want to make clear that, standing alone, the elements of the malicious prosecution claim will not muster summary judgment in my view. So that was your ruling. You found on the litigation privilege. You rejected the summary judgment on probable cause and bona fide termination. We filed an appeal. That case was briefed. And prior to the oral argument, the Fourth District rejected the Wolfe case. Now, what happened in the briefing in our case is our initial brief addressed solely litigation privilege, because that was the only basis on which you ruled. In their answer brief, they had a footnote in which they said, Well, we also Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788160 50 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 moved on other grounds, and we hereby incorporate all of our argument from our motion for summary judgment as an alternative basis for affirmance, which is known as the Tipsy Coachman doctrine. I filed a replay, and I said they have not properly raised the Tipsy Coachman arguments, because you can't just do it in a footnote and incorporate a trial pleading. That is where it stood. And then the Fourth District ruled on Fischer. At that point, I moved to dispense with oral argument, Epstein moved to file supplemental briefs -- excuse me -- a supplemental brief. And what he wanted to file a supplemental brief on was the probable cause issue. And in his motion he talks about how this will give him an exception to the Fischer decision, and also specifically says, We properly raise this as a Tipsy Coachman argument. I am reading from page six. He says, "The court has respectfully requested to afford Epstein the opportunity to file a supplemental argument to show that the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788161 51 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 litigation privilege applies under the rule announced in Fischer, because the element of absence of probable cause is not satisfied in Edwards' action for malicious prosecution." His next sentence, "The missing element in Edwards' malicious prosecution action is also properly before this court as a ground for affirmance under the Tipsy Coachman doctrine." Now, they take the position in their response to my motion here, Oh, no, it was never properly raised. And now they supposedly admit that. But this is what they argued to the court. And they said Epstein did note in his answer brief for alternative grounds for affirmance, and he reasserted all of them in the motion for summary judgment. I opposed this motion for supplemental briefing saying it was improper on the eve of oral argument, and that, in fact, the Tipsy Coachman arguments had not been properly raised. The Fourth District dispensed with oral argument, issued it's Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788162 52 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decision, and agreed as to my argument that the Wolfe case was wrongly decided and refused to follow it. However, they rejected my position that the Tipsy Coachman argument was not properly before them. And in their very short opinion, they have one paragraph that says, "Epstein suggests that this case could be decided on a Tipsy Coachman analysis, as he alleges that all the elements" -- plural -- "on the cause of action were not present. "However, the trial court specifically found that material issues of fact remain as to the elements of the claim based upon the facts presented and the inferences which might be drawn from those facts. We will not disturb the trial court's evaluation." So therefore, the Fourth District not only ruled on the litigation privileged issue, but despite my argument that Tipsy Coachman hadn't been properly raised, they addressed it on the merits -- spoken plural -- because there's no bona fide termination and lack of probable cause. And they rejected their arguments, and that is a Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788163 53 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 determination of law. As we have cited, there's cases that a determination of whether there's a material issue of fact is subject to the law of the case doctrine, and therefore this court should not be entertaining the merits of this. The law is determined by the Fourth District and under the law and case doctrine. And Juliano is the Florida Supreme Court case that establishes that any determination of law made by an appellate court is binding through all subsequent proceedings. And that's what we are saying here. Is they are trying to reargue what you already ruled on, what the Fourth District already ruled on. And their only argument against it is claiming that I am somehow estopped because I argued in response to their motion for supplemental briefing in the Fourth District that they had not raised the issue of lack of probable cause properly in their brief. But that cannot in any way affect the law of the case, because the Fourth District rejected my argument on that. But they Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788164 54 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rejected their argument on the merits, and there's no basis now to start this all over. And I just want to read one other statement that they've represented to the Court in the Fourth District as to their Tipsy Coachman issue and why the Court should address it. The resolution probable cause issue in this appeal also serves the interest of judicial economy, as it would be a waste of time, expense and resources to reverse and remand for a trial if a judgment entered in favor of Edwards would be subject to reversal on a ground this court can now resolve. Now they are here engaging in the exact waste of time, expense and resource, which they've said that the Fourth District could avoid by ruling on the probable cause issue. So, respectfully, they got what they wanted on the ruling on the alternative grounds. It was heard on the merits but the Fourth District rejected it, as you had previously. And there's no basis, there's no change in the facts, and therefore, Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788165 55 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 there's no basis to deviate. In fact, respectfully, I don't think you have the authority to deviate from what the Fourth District said, which was that you were right in the first place. So therefore, we believe it's unnecessary to spend all of this time on the summary judgment. It should either be stricken or denied based on the law of the case. THE COURT: Okay. Thank you, Mr. Burlington. MR. BREWER: Your Honor, may I respond to that motion? THE COURT: Sure. MR. BREWER: Your Honor, I have read the transcript of what you had to say with regard to the probable cause issue when I argued for the motion for summary judgment. And you did make the statement, I believe, that there are issues as to material fact. You were clearly, though -- you had read the Wolfe case, and you saw that this was it was clear as day. THE COURT: I'm not taking issue with Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788166 56 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 you there, Mr. Brewer. When I saw the Wolfe case, I read it carefully. I remember Mr. King was here on behalf of Mr. Edwards, as was Mr. Scarola. And I asked Mr. King certain pointed questions that I thought were relevant to the findings made by the Third District Court of Appeal in Wolfe, and found that essentially all of the material issues that were decided by Wolfe were clearly present in this case, and as the Fourth District kindly pointed out -- I say that, respectfully, because the decision by Judge Warner was such that it took into consideration the arguments made by Mr. Edwards' counsel that somehow I was ruined in a fashion that was anomalous to hording in on another state's rulings and that my ruling was somewhat convoluted and not consistent with governing law. And I thought Judge Warner, as I recollect, kindly, as I said, point out that the court did, in fact, follow the appropriate precedent in Wolfe, and that in a prior opinion, the Fabricant case F-A-B-R-I-C-A-N-T, I believe is the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788167 57 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 spelling -- actually, it's Fischer versus Debrincat. Fischer, F-I-S-C-H-E-R. In that case, they respectfully disagreed with the holding of the Third District Court of Appeal. The case went up to the Florida Supreme Court conflict jurisdiction, and the Florida Supreme Court ended up siding with the Fourth District Court of Appeal on this issue. So, what I had forgotten about, quite frankly, until I ran into Mr. Burlington's filing, was that they did comment on this issue pertaining to the Court's finding -- my finding -- that material facts remain as to the elements of the claim. Mr. Burlington has already read that paragraph into the record. I am not going to repeat it here. And it seems to me because we as trial judges we move on to the next case, with all due respect. So I don't follow the machinations, for lack of a better word, that go on in the district court of appeal. I simply don't have time, so I don't know what was being requested to be heard, not being requested to be heard, Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788168 58 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and things of that nature. So it's been three years or so since that decision came out. And frankly I had forgotten about the fact that they commented on that particular item. So I am glad it was brought to my attention. But what would be the legal argument that would contradict or contravene Mr. Burlington's position? Because, again, I fully concur, which, in part, I wanted to hear Ms. Haddad Coleman argue the substance. I fully concur that the focus of the hearing was clearly as a result of a Wolfe decision. And my concentration in that hearing was to determine whether or not the facts of this case fell under the Wolfe holding. Finding that it did, I entered my decision. But again, it appears from Mr. Burlington's recitation of events that took place at the district court of appeal level, that your client, through counsel, was adamant about including this issue in their briefing and in the court's decision. And, in fact, the Fourth District Court of Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788169 59 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeal did, in fact, decide to deal with the denial of the summary judgment on those alternative grounds. So I feel a bit hemmed in here that, while I agree with what you are suggesting to me that in fact it did transpire the way it did, it was at the insistence, though, of Mr. Epstein through counsel that the Fourth consider the proprietary of this court's denial of the motion based on factual considerations pertaining to the probable cause issue and perhaps, to a lesser degree, the bona fide termination issue. MR. BREWER: Your Honor, if I may. THE COURT: Sure. MR. BREWER: What has been very interesting to me about this hearing thus far is that we have not heard one word from anyone with regard to the substantive issue that is before the Court, which is are there facts here that are not disputed. There's been no dispute what has been put before the court. THE COURT: Hold on just a second, if I might. If I don't interrupt -- I don't do Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788170 60 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 it disrespectfully, just that I may forget what I'm going to say. That may very well be. You hear the term law of the case thrown around. And I am sure Mr. Burlington often cringes as an appellate specialist when he sees that term thrown around in the trial courts by lawyers who really are not accurate in terms of what they're talking about as far as the cases. It's a term that's used improperly almost always. Here, however, is a much different proposition and it does, in fact, in my respectful view, constitute law of the case, because -- again -- and I am going to emphasize this once again -- the movant here -- for the Fourth to discuss, consider, and ultimately write on the proprietary of the Court's decision pertaining to the factual issues that remain on what -- they generically speak to the elements of the claim -- inclusive, of course, of probable cause and bona fide termination, which the court did discuss. They commented on the subject and refuse to disturb the trial court's findings in that respect. That is Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788171 61 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 the law of the case. MR. BREWER: Can I try to persuade you otherwise, Your Honor? THE COURT: Absolutely. MR. BREWER: You use, actually, I think the correct terminology when you were first referring to this as a comment. That's what this is. It's a comment. For it to be law of the case, the issue has to have been briefed by you and decided at the appellate level. What they did there really is not more than dicta, because when appellate counsel for Epstein attempted to raise -- and he had to -- I mean the Fischer vs. Debrincat case -- THE COURT: Debrincat -- let's call it Fischer, F-I-S-C-H-E-R. MR. BREWER: Fischer had come down, and clearly the court was going to follow its own precedent and go with Fischer in the Epstein case. So an attempt was made to supplement the brief and to supplement the record with regard to the probable cause Tipsy Coachman well, even if the court -- in the Tipsy Coachman, you are probably Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788172 62 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 aware, the court was correct in its ruling, maybe not for the reasons that were expressed. In other words, there was another issue in the case. THE COURT: There was the WQBA. I think is one of the cases. MR. BREWER: In any event, that attempt was made. It was denied, so it was never briefed. This issue was never briefed. The record was never supplemented. And they make a comment that the court made a statement that there were issues as to material fact and they would not disturb that. THE COURT: No one is more sensitive to dicta than I am. I was reversed recently on a contention by the Fourth that the Second DCA said something but didn't mean to say it. Had to do with a foreclosure issue. But here, again, they said what they said. And I will read it into the record so that it is clear. Quote, Epstein suggests that this case could be decided on a contingency Coachman analysis, as he alleges that all the elements of the cause of action Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788173 63 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 were not present. However, the trial court is specifically found that material issues of fact remain as to the elements of the claim. Based upon the facts presented and the inferences which may be drawn through those facts, we will not disturb the trial court's evaluation, end quote. It certainly doesn't sound like dicta to me. It sounds like part of the holding of the case. MR. BREWER: Your Honor, let me just -- if the appellate counsel had been allowed to file supplemental briefs and supplement the record, and the Fourth District Court of Appeal then found, no, there are issues of material fact as relates to the probable cause issue, and therefore we refuse to reverse on those grounds or whatever on those grounds, if they had it before them, I would agree with Mr. Burlington. It's law of the case. We are flapping our gums. But they didn't. They refused to have it -- the supplement brief, and they refused to supplement the record. And so it is not Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788174 64 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 with all due respect, Your Honor, that does not rise to the level of law of the case. THE COURT: We are going to have to agree to disagree and remain colleagues, because I've looked at the opinion. It's two paragraphs. The one paragraph deals with Fischer and the second paragraph deals with the recited paragraph that the court just entered again into the record. Is that the thing in this case? MR. BURLINGTON: Your Honor, when you asked about the opinion, this case was a tagalong to the Florida Supreme Court with Fischer. And there is an order out of the Supreme Court what happened after they decided Fischer on the merits. And the Florida Supreme Court, they issued an order asking the parties THE COURT: I'm sorry. My apologies. I didn't mean to interrupt you. I just wanted to make sure -- it was a footnote. I knew that Judge Warner made a comment about the court -- the trial court and says, quote, The trial court properly relied on Wolfe at time because that case was binding Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788175 65 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 upon the trial court in the absence of interdistrict conflict. And I will omit the citation. And she indicated that after the trial court ruling, the court held contrary in Fischer to constitute conflict that was ultimately resolved by the Florida Supreme Court. So I just wanted to make sure that was the opinion. I didn't realize it was so short. I didn't recognize that, although she indicated that present MR. BURLINGTON: Your Honor, may I interrupt you to correct something? Their motion in the Fourth District was not to supplemental their record. Their position was the record was sufficient. Their answer brief incorporated their motion for summary judgment from the trial level. That's what I said was insufficient. The Fourth District obviously found it sufficient, so they had their entire motion for summary judgment, which was in the record, to evaluate. They could have filed a rehearing and said, Fourth District, you should not have Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788176 66 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reached this. We didn't brief it. It wasn't properly presented. And that would have put me in an odd position, because that had been my position. But also, when it went to the Supreme Court and it was a tagalong case after Fischer was -- the Fischer opinion was issued and they issued an order saying, Is there any reason for us to review this, or is it controlled by Fischer? they didn't respond and say, Yes, the Fourth District reached issues they shouldn't have reached. They didn't do anything. They said, No, you decide it, it will go back. So they had two opportunities, if they thought it was unfair, for the Fourth District to consider the issue that they repeatedly said was properly before the Fourth District. THE COURT: I just want to complete the record for now, so, Mr. Scarola, let me hear from you on substantive issues just so that we can tie a bow around this matter, and I can rule comprehensively as to Mr. Epstein's motion for summary judgment. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788177 67 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 Did you want to add something, Mr. Brewer? MR. BREWER: Yes. All I wanted to add -- the only issue that was before the Florida Supreme Court was the litigation privilege. THE COURT: I am not suggesting that was not the case. But the Fourth District squarely dealt with the issue as decided by Mr. Edwards' counsel and by the court. Go ahead, Mr. Scarola. MR. SCAROLA: Thank you, Your Honor. I am here as driver of the Tipsy Coach. In the event what we are confident is a correct ruling, that as a procedural matter, these issues can't be reached, as a substantive matter, this motion should be denied as well. There are two memoranda that have been filed by -- on behalf of Mr. Edwards which address this motion for summary judgment. The first is Edwards' motion in limine to strike the June 30, 2017 affidavit of Jeffrey Epstein and to exclude evidence as to which discovery was withheld under claims Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788178 68 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 of privilege with incorporated memoranda of law. Let me very briefly see if I can summarize what I believe the state of mind issues relevant to the pending claim to be. Jeffrey Epstein initiated this litigation with the filing of a five-count complaint. Those counts were Florida Civil Remedies for Criminal Practices Act violations, alleging that not only Mr. Rothstein -- whom we can set aside for all practical purposes today -- but that Bradley Edwards committed securities violations, criminal fraud, fraudery, extortion, perjury and, quote, improper litigation tactics, unquote. Those were the alleged criminal practices that Mr. Epstein said Bradley Edwards was responsible for committing. In count two, he claimed relief for violation of Florida's Racketeer Influence and Corrupt Organization Act -- Florida RICO -- and alleged the same predicate acts as the basis for the Florida RICO claims. Then he alleged abuse of process. And Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788179 69 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the foundation for the abuse of process claim was, quote, improper litigation tactics, unquote. He alleged fraud on the basis that the claims against Mr. Epstein, then pending, brought by Brad Edwards on behalf of various victims of Mr. Epstein's criminal conduct were, quote, an attempt to extort as much money as possible from Epstein, unquote. The last count was a conspiracy claim. And the conspiracy claim said that the civil actions were used in a, quote, unlawful, improper and fraudulent manner. We filed a motion for summary judgment. And although Your Honor apparently did not recall, Brad Edwards was deposed. He did sworn testimony. THE COURT: It's not that I didn't recall. I was suggesting that I did not receive anything from the -- from the Epstein team to support their motion for summary judgment based on Mr. Edwards -- whatever Mr. Edwards may have said to support whatever the mindset that they are claiming Mr. Edwards may have had at the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788180 70 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time he filed those federal court actions that may have -- to some degree mirror the pending state court action. MR. SCAROLA: Yes, sir. When Mr. Edwards filed his counterclaims against Mr. Epstein and filed a motion for summary judgment on all of the claims that Mr. Epstein has brought to support his motion for summary judgment, Mr. Edwards needed to provide evidence to the court, record evidence that he didn't do these things that Mr. Epstein alleged that he did. And so he filed a very detailed affidavit, and he had his deposition testimony and he had the testimony of Mr. Rothstein. And while Mr. Rothstein gave one answer that might be interpreted as somewhat equivocal, Mr. Rothstein clearly and unequivocally said Brad Edwards was part of the legitimate part of my law firm. He had no idea what was going on with respect to the Ponzi scheme. He was not involved in any way, and his cases were used in that Ponzi scheme without his knowledge. So Brad Edwards testified to that Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788181 71 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 clearly and unequivocally. Mr. Rothstein testified to that clearly and unequivocally. And Mr. Edwards, in his affidavit, went through every alleged impropriety in connection with his prosecution of those claims and detailed the basis that he had for everything that he did, why he subpoenaed the pilots, why he named various celebrities, what the source of the information was to believe that they had information relating to Mr. Epstein's criminal conduct. Those cases that Mr. Edwards was prosecuting included claims for punitive damages, very substantial claim for punitive damages that focus on the magnitude of Mr. Epstein's wrongdoing. Mr. Epstein throughout the prosecution of those civil claims asserted a Fifth Amendment right. He refused to acknowledge that he knew any of these young women. He refused to acknowledge any relationship with any of them, or any other alleged victim. He refused to answer questions about what went on on his plane, what went on on his Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788182 72 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 private island, what was going on in New York with the young women who were known to have been traveling back and forth with Mr. Epstein, and as to whom very substantial evidence existed that he had engaged in a protracted intense pattern of not only abusing these children himself, but prostituting them to others as well. So part of the investigation into the magnitude of his wrongdoing included allegations with regard to the scope of his misconduct over an extended period of time, over a very wide geographic basis involving dozens and dozens of under-aged female victims. So all of that is laid out in this very extensive affidavit from Mr. Edwards detailing why he did what he did, including why he filed a very substantial federal claim at the same time that a state court claim was pending, because under the terms of the non-prosecution agreement that Mr. Epstein somehow managed to enter into with the federal government, federal claims became significant because he committed to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788183 73 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 compensate victims under a federal statute. So there was a basis for everything that Mr. Edwards did detail in that affidavit. No opposition was filed to the affidavit. And on the eve of the hearing on that motion for summary judgment, Mr. Epstein took a voluntary dismissal of every claim against Mr. Edwards. So, to the -- THE COURT: By the way, was the voluntary dismissal only as to Mr. Edwards? MR. SCAROLA: It was only as to Mr. Edwards. The case against LM had been voluntary dismissed earlier, as I recall it. And there was a default entered with regard to Mr. Rothstein, who never appeared to defend against these claims. So the only claim that was at issue at that time was the case as to which a voluntary dismissal was taken as to Mr. Edwards. So to the extent that Mr. Edwards' state of mind has ever been an issue, that issue has been resolved conclusively in favor of Mr. Edwards by virtue of the motion Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788184 74 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for summary judgment and the voluntary dismissal. So what we have now is a claim pending against Mr. Epstein. And in order to substantiate that claim for malicious prosecution against Mr. Epstein, we need to be able to demonstrate that his allegations were not only factually untrue, but that he had no reason to believe that they were true at the time he brought those claims, that they were brought maliciously. And malice under Florida law may be either actual malice or implied malice. So by proving that the allegations themselves are untrue, the implication arises that they were filed maliciously. So part of our claim is proving that all of these allegations were false. Then, in order to demonstrate actual malice, we can go on to show that Mr. Epstein had no probable cause to believe they were true, because a mistaken but good faith belief is a defense to a malicious prosecution claim. If Mr. Epstein can come in and say, Well, now we all know that these allegations Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788185 75 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were false, but at the time I had a good faith subjective basis to believe that these allegation were true. Now, this is where the Fifth Amendment assertion becomes relevant, because there were all sorts of things that could have given rise to a suspicion on the part of someone who didn't know the truth about the viability of these claims because Mr. Rothstein pled guilty to involvement in a very widespread Ponzi scheme. And one might think one might have a suspicion that those who were in his law firm had knowledge of what was going on and participated. And as Mr. Epstein claimed in his -- not only in his lawsuit, but in his deposition, these cases against him were fabricated. They were, quote, ginned up, unquote. That's the phrase he used. These case were ginned up. And when asked what does that mean, he said they were fabricated. So the truthfulness of the allegations made in the complaint against Mr. Epstein Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788186 76 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 become relevant and material. Were these fabricated claims, were they ginned up claims, or were they true claims? Now, there's one person who knew without a doubt whether these were fabricated claims, ginned up claims, or whether they had a true reasonable basis, whether they were indeed very valuable claims. And that one person was clearly Mr. Epstein himself. Mr. Epstein can't say I relied upon all of these third-party sources to give rise to a reasonable suspicion that claims were ginned up, when the claims were against him and he knew they weren't ginned up. He knew they weren't fabricated. THE COURT: I don't want to mix apples and oranges. I think in my reading of the pertinent testimony -- and it's a difficult read because all of the objections and the bantering going on between counsel -- I understand a situation like this is relatively sensitive. It doesn't make it easy to read. But in my reading of the testimony, Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788187 77 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Epstein was taking a position, as I understand it, that the ginned up claims, so to speak, were not so much relating to the substantive allegations of alleged abuse and molestation, but instead were ginned up or fabricated or enhanced to attract the investors who were involved in putting money into this $30 million dollar enterprise. Whereas, in the state court claim, the claims were rather straightforward. The damages were not mentioned, to my knowledge, other than in excess of $15,000. I have a vague recollection, because the state court claims, coincidentally -- and as I pointed out the beginning of my handling of this case -- were before me in another civil division before I was assigned to the juvenile division. So I have some significant familiarity with those cases while I was in the other division. But the point that was made was that so that these investors, for lack of a better term, would be assuaged and satisfied with their monetary commitment. Those federal cases were brought, ginned up, fabricated -- Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788188 78 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 MR. SCAROLA: Federal case, respectfully, sir. THE COURT: Then I apologize. MR. SCAROLA: That's quite all right. THE COURT: The federal case was brought mirroring the essential allegations, but going further so as to appease these investors who were coming down from New York, as I recollect. And the presentation was by Mr. Rothstein allegedly through some intervention by Mr. Adler. And as I recollect, that was the substance of Mr. Epstein's testimony, as it related to those issues. MR. SCAROLA: May I respectfully call the Court's attention to the following questions and the following answers which indicate that, while there may have been some argument along those lines, while there may be allegations in the complaint along those lines, that's not what Mr. Epstein's testimony was. THE COURT: Please feel free. It's only my review -- MR. SCAROLA: I understand that. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788189 79 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: -- and it's a lot of material. MR. SCAROLA: It's an extremely extensive record, so I don't fault the Court in any respect at all with regard to the inability to recall details. THE COURT: As I said, that was -- the essence of my recollection. Feel free. MR. SCAROLA: Yes, sir. Mr. Epstein, at page 20 of his deposition, is asked specifically, "What are the allegations against you which you contend Mr. Edwards ginned up?" He refuses to answer. Fifth Amendment rights. "What specific discovery proceedings did Mr. Edwards engage in which you contend form the basis of your lawsuit?" Refuses to answer. Fifth Amendment. That's page 21. Page 23, "Well, which of Mr. Edwards' cases do you contend were fabricated?" Fifth Amendment. Page 23, "Are you now telling us that there were claims against you that were fabricated by Mr. Edwards?" Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788190 80 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 Refusal to answer. Fifth Amendment. Page 22, "Is there anything in LM's complaint that was filed against you in September of 2008" -- that's the federal complaint "which you contend to be false?" Refusal to answer. Fifth Amendment. At page 73, "I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that federal complaint." Refusal to answer. Page 24. "Did you ever have any physical contact with Fifth Amendment. Refusal to answer. Page 26. "What is the actual value that you contend the claim with against you has?" Deposition page 26, refusal to answer. Interrogatory question, "Describe in your own words all interactions you have had with the individual identified in this action as including but not limited to the dates, places, participants in, witnesses to, and description of all sexual activity involving Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788191 81 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Answer to interrogatory, Fifth Amendment. Refusal to respond. Those are objections filed on October 8th, 2010. So while the defense may argue that there was this parceling out of which claims were alleged to be ginned up and which claims were alleged to be fabricated, and other claims where he's not responding, that's what Mr. Epstein did. Mr. Epstein made blanket assertions of Fifth Amendment privilege to preclude discovery into what is the heart of this case. What are the claims that you allege were somehow misused? So if we go back to the four counts that we are talking about here, at the time that Mr. Epstein filed those claims he knew he could not proceed with those claims for four different reasons. One, because he knew he was guilty. He had actual knowledge of his own guilt. And we can prove that through independent third parties, who will testify that man abused me, used me as a sex slave and prostituted me out to others. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788192 82 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 He knew that he was going to assert his Fifth Amendment privilege. He knew he was going to try to use the Fifth Amendment as both a sword and a shield, which he could not do. He knew that the litigation privilege barred all of these allegations about improper litigation conduct, because improper litigation conduct -- it has been the law of the State of Florida for a very long time -- cannot form the basis of an independent tort claim. And most significantly of all don't want to say that, because I diminish by saying that, the importance of the other three defenses. But Mr. Epstein was not a victim of the Ponzi scheme. He suffered no damage, and he knew that he suffered no damage. How could he have been defrauded by the fact that some investor is being shown the claims against Mr. Epstein? He never relied upon anything Brad Edwards said. He never relied on anything Mr. Rothstein said. He didn't know they were saying those Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788193 83 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things until the Ponzi scheme gets uncovered and he seizes upon the Ponzi scheme as a means by which to try to extort Bradley Edwards into abandoning the legitimate interest of his clients or compromising those interests for less than those interests were worth. THE COURT: Let's focus, though, on the motion that's before the Court, please, and that is the issue of whether or not the summary judgment should be granted or denied. The wisdom of Mr. Epstein bringing suit in the first place is something that I think is more appropriate to argue and would be in respect to the motion itself. MR. SCAROLA: Well, sir, what I am suggesting is that all of that evidence is indicative of malice on Mr. Epstein's part, because since he knew that he was in fact guilty, since he knew that because Brad Edwards was leading an effort to set aside the non-prosecution agreement -- which is specifically referenced in his complaint -- the non-prosecution agreement is referenced in the complaint -- that's one of the things Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788194 84 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that they want Your Honor to exclude as irrelevant. But a principle motive for Mr. Epstein was, I need to get Brad Edwards off my back, because if he continues to prosecute the Crime Victims' Rights Act case, sets aside the non-prosecution agreement, I face federal criminal prosecution for a wide variety of crimes that could send me away forever. That's what that's what was a significant part of his motivation. A significant part of his motivation was that there were 40 women who were making claims -- 40 children who were making claims against him civilly, and he faced an enormous compensatory damage result and punitive damage result as well. And what's extremely significant to understand is that after Mr. Epstein lays all of these things out as efforts to gin up the value of the claims that Brad Edwards was bringing against him, he voluntarily enters into a settlement of those, of each and every one of those claims, as well as a Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788195 85 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whole bunch of others. And the record reflects at this point by virtue of interrogatory responses that were requested in the record by the defense, what the amount of those settlements were. And no one can look at that and say these were trivial matters. These were fabricated cases. These were claims that didn't have any significant value. So we are focusing on Mr. Epstein's state of mind, Mr. Epstein's motive, Mr. Epstein's assertion to Fifth Amendment privilege from which reasonable inferences against him may be drawn and proving our case through all of that direct and circumstantial evidence. Mr. Epstein can't come in now and selectively attempt to waive his Fifth Amendment privilege and file an affidavit that suggests, I had a good faith basis for my filing these claims against Mr. Edwards because there was this case filed down in Broward County that never even mentions Bradley Edwards' name. And he can't come and stand before Your Honor and say, as he just did through Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788196 86 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 Counsel, even the federal government did not know who was involved in the Ponzi scheme, quote, unquote, and say that provided a reasonable basis for charging Bradley Edwards with crimes -- with this long litany of crimes. That's no reasonable basis for charging Bradley Edward with anything. That's reckless, that's malicious, that's extortion. That's what was going on here. So, we have detailed in our responses the case law that relates to the concept that one may not assert the Fifth Amendment privilege and then at the last minute attempt to withdraw it, and certainly not attempt to withdraw it on the very limited basis upon which it's attempted to be withdrawn now. There's a long litany of cases included in our memo. We have cited all of the disputed issues of fact upon which Your Honor relied previously in finding that this was not a summary judgment case in favor of the defense by any means. I suggest that at the conclusion of this case Your Honor is going to be able to rule as a matter of law that there was no Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788197 87 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 probable cause. But you certainly can't rule at the present time that there was probable cause on the part of Mr. Epstein on the basis of the record that exists presently. And I thank you very much for being as patient with me in making those arguments as you were, sir. THE COURT: Thank you, Mr. Scarola. Ms. Haddad Coleman, I will give you a few moments to rebut. MS. HADDAD COLEMAN: Thank you, Judge. Since Mr. Scarola was kind enough to quote us, I would like to -- MR. SCAROLA: Excuse me. Before Ms. Haddad Coleman begins, may Mr. Burlington be excused if he chooses to be? THE COURT: Yes. Thank you, Mr. Burlington. I appreciate the briefing on the res judicata issue. Go ahead. MS. HADDAD COLEMAN: Thank you, Judge. With respect to Mr. Burlington's argument, we would also point out to the court that we Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788198 88 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did file a detailed written motion in opposition to his with case law spelling it out. THE COURT: You're talking about the Fifth Amendment issue? MS. HADDAD COLEMAN: No, Judge. That, I haven't been able to file yet, because we just received it, but I am working on it. The Court should be aware that Mr. Epstein did give two depositions. In response to the motion to strike and when I present to this Court that Mr. Epstein did, in fact, answer many questions as to what he believed as to why he filed the suit, we will be addressing that in our response to the motion to strike the affidavit. THE COURT: So what was the response you are speaking of? I may have misunderstood you. MS. HADDAD COLEMAN COLEMAN: To the document provided by Mr. Burlington's firm. THE COURT: You're talking about the Tipsy Coachman issue? MS. HADDAD COLEMAN: Yes, we did file a written response. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788199 89 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Scarola brought up a lot of things. I am going to start with the fact that he did state -- and I quote, Even if Mr. Epstein mistakenly believes the allegations were true. I think that's the only crux of this issue. There's a lot of conversation about malice. We filed a summary judgment on the issue of probable cause. The threshold of what Mr. Epstein believed at the time he filed suit is like reasonable suspicion to arrest someone: there's probable and there's false arrest. There's two different levels that must be met at different levels of litigation. At the time Mr. Epstein filed suit -- if the Court will indulge me, I would like to read to you a summary of the action in the complaint that was filed. "Attorney Scott Rothstein, aided by other lawyers and employees of the firm for Rothstein, Rosenfeldt & Adler, PA for personal greed and enrichment in betrayal of the ethical, legal and fiduciary duties to their own clients, the professional obligations to the administration of Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788200 90 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 justice, deliberately engaged in a pattern of racketeering that involved a staggering series of greatly serious obstruction of justice and actionable frauds." Specifically relating to this case, it states, "Marketing of non-existing Epstein settlements --" and this Court may remember, they settled for $3 million. That's never been alleged by anybody in this case. "-- in the sanctioning of a series of depositions that were unrelated to any principle litigation purpose for Epstein cases, but instead were designed to discover extraneous private information about Epstein or his personal and business associates, including well-known public figures, in order to defraud investors and support extortion and demands for payment from Epstein. "This misconduct featured the filing of legal motions and the pursuit of a civil litigation strategy. It was unrelated to the merits or the value of their clients' cases." Nowhere has Mr. Epstein ever once Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788201 91 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stated that they filed false cases. Instead he alleged in his cases against Mr. Edwards, Mr. Rothstein and LM that they were ginned up, as this Court correctly points out. He specifically points to the conduct engaged in the discovery, the pleadings, the other things that were filed in this case. And again, this is all the suspicion Mr. Epstein had at the time. All of this after-the-fact information, while it might be well intended, that's what discovery is for. That's why discovery exists after you file suit. At the time THE COURT: I am not certain that that's true. In other words, what I believe one of the central holdings were of Fischer was that there must be grounded allegations that form the basis of a claim, and that to shotgun allegations as a matter of course would be ill-advised from the standpoint of facing, then, the potential malicious prosecution action and then longer within the confines of a lawsuit, as Wolfe provided, are those actions going to be Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788202 92 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 necessarily tolerated as a matter of law. So, the way I look at it is this -- Let me let you finish, because I think I'm ready to rule whenever you are finished with your argument, please. MS. HADDAD COLEMAN: Judge, Mr. Epstein filed an abuse of process claim against Mr. Edwards. At the end of the day, both sides amended complaints several times. Areas of the case had changed. At the end of the day, Mr. Epstein had an abuse of process claim against Mr. Edwards alleging specifically that he did abuse process in the cases he was prosecuting when he worked at RRA as a partner at RRA against Mr. Epstein. To allege now, all of these years later that Mr. Epstein at the time had no basis in fact for that, the facts are delineated in nine pages of our motion. It's supported by uncontroverted testimony. While we're on the subject of uncontroverted testimony, I would like to be provided a little bit of indulgence, as the Court gave Mr. Scarola, reading from Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788203 93 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Epstein's -- one of his depositions. THE COURT: Of course. Take your time. MS. HADDAD COLEMAN: Mr. Edwards was deposed twice. Again, this motion is now pending before the court. It's a motion to compel Mr. Edwards to answer questions. Now this motion was filed before summary judgment was granted. The parties all agreed Mr. Edwards' deposition could continue. The summary judgment was granted, so this is still an issue for the Court. Mr. Scarola. Questions were posed to Mr. Edwards -- THE COURT: Can you slow down for our court reporter? MS. HADDAD COLEMAN: Question: "Have you directed -- did you ever direct that the investigators -- during the time you were at RRA, did you direct them to work on Epstein files?" Mr. Scarola: "We're claiming the privilege with respect to any action taken by Mr. Edwards or at Mr. Edwards' direction in connection with the investigation to prosecuting claims against Mr. Epstein." Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788204 94 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Another question is posed. Mr. Scarola: "Mr. Edwards will not answer any questions regarding what he did or didn't do." These are all direct questions related to what he did in the Epstein case, as well as at RRA. THE COURT: I understand. I will ultimately rule on those issues once they're in front of me. MS. HADDAD COLEMAN: What I'm saying to the Court is, if you are considering what Mr. Epstein said after the fact as a basis for whether or not he had probable cause at the time he filed suit for these issues, and Mr. Scarola is trying to make an issue of the fact that -- how Edwards had this good faith basis the whole time, they have provided no evidence to dispute the facts we present in our motion for summary judgment. Not one. And if this affidavit for Mr. Edwards lays out allegedly what he did in this case -- this is his direct testimony when he turned to the Epstein 2009 cases, when he was prosecuting them at RRA. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788205 95 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "Mr. Edwards, were you involved in a discussions regarding the deposing of any of the people -- the individuals -- Mr. Trump or any -- with any of the lawyers in your firm, including Scott Rothstein?" "Objection." "Did you ever discuss with Mr. Rothstein or anyone on his behalf the value of taking the depositions of Donald Trump, Alan Dershowitz, former President Clinton, David Copperfield, Leslie Wexner, as an inducement to get Mr. Epstein to settle his lawsuits?" Mr. Scarola again -- none of these questions are answered. So at the risk of pointing this out to the Court -- because it's not in our motion for summary judgment and I believe it's related to the issue of what Mr. Epstein had in his mind at the time, there's no evidence in this case to controvert what Mr. Epstein had available to him at the time he filed suit upon which he relied, and the good faith basis he had to file a lawsuit that was filed by a respectable law firm in this town. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788206 96 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 All of the case law upon which we relied to discuss the low threshold of probable cause and what -- how it relates to the evidence to this court is in our motion. And for the reasons we write therein, Judge, we request that this court grants the motion for summary judgment. THE COURT: All right. Thank you to each of the attorneys who provided not only excellent oral argument, but also I appreciate the written presentations as well. Let me start by saying that the motion is denied for two principle reasons. One, I do find that, based upon the Fourth District Court of Appeal's opinion -- and for the record, that opinion is that 178 So.3rd 942 in Edwards versus Epstein -- the second paragraph -- which again, I will not belabor since we have already read that into the record on two occasions -- does in this Court's respectful view constitute law of the case. And hence, it does procedurally foreclose Mr. Epstein's motion. And again, respectfully it was the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788207 97 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 insistence of Mr. Epstein through counsel based upon the uncontroverted procedural history provided by Mr. Burlington in front of the Fourth District Court of Appeal that the Fourth decided, through Judge Warner's opinion, to address the Tipsy Coachman issue, address it they did, and they did not disturb the trial court's findings. Although, as I did indicate earlier, the focus was certainly on Wolfe and the facts and circumstances in Wolfe were inexplicably tied, in my respectful view, to facts of this case. Irrespective of that, and in recognition that the court did not have the Fischer case at its disposal when this court made its ruling, and then ultimately the Florida Supreme Court decided that Fischer would be the applicable law on the subject, we are now back again here today. The second reason -- again, just in case there's some discrepancy or suggestion that that language may have constituted dicta -- which I don't believe it did -- I believe it was a pronouncement and a finding Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788208 98 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by the court specifically in upholding that aspect of this court's decision. My denial is also based upon what I perceive to be abundant factual issues pertaining to the probable cause issue. As I indicated earlier, the facts are by no means clearcut here, as they are in most false arrest cases. Mindset of both Mr. Epstein and Mr. Edwards are going to be critical in a fact finder's analysis as it relates to probable cause. The reason and rationale behind Mr. Epstein's decision to go forward in the first place, the reasons behind Mr. Edwards filing of the federal court case, Mr. Epstein's conclusions, right or wrong, at the time he made the decision to go forward in the prosecution of the claim, inclusive of whether or not he himself suffered any damages as a result of what I will term Rothstein or the Rothstein entity's or entities' actions are all subject to resolution by the finder of fact. So again, with my thanks I will go ahead and denied that motion for the reasons Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788209 99 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stated on the record, and we will proceed on, once we get back from the lunch break, with the next motion. What motion would you like to hear next? Let me hear from Mr. Epstein's counsel, and then I will hear from Mr. Edwards' counsel. MS. HADDAD COLEMAN: Judge, I would like to address all of my motions to compel discovery responses for Mr. Edwards since we kind of left off with that with our last argument for summary judgment. THE COURT: Okay. Mr. Scarola, the principle motions this afternoon are from your standpoint are what? MR. SCAROLA: Your Honor, I would assume that the Court has not yet reached the argument with regard to the implications of Mr. Epstein's assertion of Fifth Amendment privilege. THE COURT: Correct. Let me just add -- there was one thing I wanted to add. Forgive me for interrupting. But I am going to find that Edwards' motion in limine to strike the June 30th Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788210 100 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 affidavit of Epstein is moot based upon the Court's initial finding as the law of the case and otherwise moot based upon the Court's denial of the motion for the reasons that I have stated on the record, thus not necessitating my ruling on the issue at this time, that being the motion for the affidavit. MR. SCAROLA: Thank you, Your Honor. That's the clarification that I was requesting. In light of that, I don't know whether Your Honor chooses to reach the defense's omnibus motion in limine which includes a lot of arguments that are based upon the Fifth Amendment privilege. THE COURT: The only reason I'm concerned -- again, I made myself clear to counsel for Mr. Epstein that I will not accept, respectfully, the excuse that there is insufficient representation or that there's not enough time. Having been an attorney or litigator for the better part of 17 years prior to being on the bench and now as a judge for Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788211 101 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 the better part of 18 years, I think I have a pretty good handle, based upon that combined 35 years of experience on what is necessary to properly defend and prosecute civil cases. And this is a major undertaking from both sides, and also a major undertaking from the Court. I harken back to a case yesterday on a very complex business matter where one of the attorneys was a clerk for Judge Middlebrooks, federal court. And he gave somewhat of a wry smile when he stated that our trial courts here in the state of Florida are not afforded with the same support as our federal judges and our appellate court judges. And while I am not complaining, it's a reality. But I spend as much time as I can to prepare myself and to read the materials. And if help is an absolute requirement, we seek it out through our trial clerks, who, while they do an exceptional job, are themselves busy, because I think there's about nine of them assigned to somewhere around 50 judges in the main courthouse, one Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788212 102 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 up in South County -- one down in South County, one up in North County. So they're stretched, so we don't have that same luxury. The litigants do. And I want to make clear that if help is needed, make sure you get it, because, again, this is complex. These are multitude issues, they're involved, and I want to give fair warning that the lack of time for solo practitioners -- while, again I'm empathetic to it, while I understand, it's not going to suffice here. So whatever the proper support -- help may be required -- I am giving you fair warning now, a couple months before trial, that it be secured. All right, so again, I don't want to overstate the situation, or -- it is not being critical of anyone. It's just that based upon the time and experience that I have had in dealing with cases of this type -- not so much these issues, but certainly of the magnitude that you are dealing with. I recognize that there will be support -- help required. And perhaps Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788213 103 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 that has to be emphasized today so that we are not going to be running into this issue in the future. And again, that has nothing to do with the holidays. I don't want it to be misconstrued. It has nothing to do with anything that may have transpired as a result of the recent hurricane. It's only as a matter of observation, and, again, replying on what was brought up by Ms. Haddad Coleman at the inception of the hearing today, as far as time constraints. So what I am saying is, for today -- because of the magnitude of the issue and based upon the fact that perhaps the deadlines were not accommodated to a certain degree -- I will hold off on ruling on this Fifth Amendment privilege, because I think it really does require exhaustive briefing and discussion. Since, I believe, Ms. Haddad Coleman, you indicated to me that you have not yet finished that aspect of your briefing, correct? MS. HADDAD COLEMAN: No, Judge, I have Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788214 104 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 not, because I received it on the 25th and you had us turn it in on the 28th. THE COURT: And that's understandable. Again, no matter what level of support you may have had -- and I can still remember as a young associate staying until midnight trying to finish stuff at the last minute because of potentially unreasonable deadlines. MR. GOLDBERGER: That's because of who your boss was, Judge. THE COURT: May be some truth to that. What I'm getting to is, because of the significance of the issue, I don't want to preclude anyone from having sufficient time to finish the brief. So I think that's not unreasonable at all under these circumstances. Is there anything else we can get to besides the motions in limine, other than the motions to compel? MR. SCAROLA: Your Honor, the motion in limine includes many issues that are not tied to the Fifth Amendment privilege. And dealing with the motion in limine I suggest Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788215 105 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will help to define the issues and provide guidance to both sides with regard to our motions to compel discovery. With regard to the motions to compel discovery, there are motions to compel discovery on both sides. I would simply ask that we alternate. The defense can pick one, we will deal with that. They can go first, we will go next, and we will alternate dealing with discovery motions to the extent that Your Honor has time to accommodate us on those. MR. BREWER: Your Honor, it really is a disadvantage to chop up that motion limine THE COURT: I agree. I think that my better judgment would be to defer on the motion in limine until such time as Ms.Haddad and her cohorts or her co-counsel have had the opportunity to brief the issue conclusively and exhaustively. In this particular instance, Mr. Scarola, I will also allow a reply brief, once she has had an the opportunity, because of the significance of the issue and the fact that much of what is going to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788216 106 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 transpire at the presumptive trial will be matters that are going to be addressed at the motion in limine. And these are critical issues that are going to impact the way the trial is going to go forward. MR. SCAROLA: Your Honor, with respect to the motion in limine, that was an Epstein motion to which Edwards has replied, so that's been fully briefed in accordance with the earlier order. The motion that I think Your Honor is referring to is our motion to strike the affidavit of Mr. Epstein, which goes beyond simply striking his affidavit and asks to preclude any evidence as to which he has previously denied discovery through assertion of the Fifth Amendment privilege. So with regard to that motion, we have filed our motion. They have not yet filed a response. I understand Your Honor is permitting them to do that, and we appreciate the opportunity to be able to reply after they do. I would request that specific time limitations be set so that, again, this does Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788217 107 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 not drag on to a point where there's any possibility of it interfering with our scheduled trial. THE COURT: All right. Let's go ahead -- what we are going to have to do is confer on those time issues while we are away so that I can get a better feel for where you are if I have to make a decision if you can't otherwise agree. Hopefully you will. MR. SCAROLA: May I submit an order to the Court on the summary judgment motion which simply says said motion is denied for the reasons expressed on the record? THE COURT: That's fine. Thank you. I am going to return the summary judgment material to you through our deputy. Thank you, sir. And again, thank you all for your excellent presentations. Thank you to our court reporter as well. What time will we reconvene? We will reconvene assembled at 1:25. Thank you very much. See you guys at that time. (A recess was had 12:10 p.m. - 1:32 p.m.) Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788218