DS9 Document EFTA00788219

108 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 II 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 Palm Beach Reporting Service, Inc. EFTA00788219 109 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. EFTA00788220 110 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: Have we settled upon the next motion we would like to have heard? MS. HADDAD COLEMAN: Yes, Judge. We will be proceeding -- Tonja Haddad Coleman on behalf of Jeffrey Epstein. We will be proceeding with our motion to overrule objections and compel Defendant/ Counter-Plaintiff Bradley Edwards' answer to questions. Judge, this motion is directed at Mr. Edwards' deposition testimony and the two depositions he provided in this case, the first of which was March 23rd, 2010, the second of which was May 15th, 2013, which is why this motion was not heard, as this Court likely remembers from before lunch. In June 2013, summary judgment was granted, so the issues of the answers to the deposition questions became moot while the case was on appeal. Did the Court find the motion? THE COURT: Well, I have two similarly titled motions here in front of me. One says, Epstein's Motion to Overrule Objections and Compel Defendant/ Palm Beach Reporting Service, Inc. EFTA00788221 111 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 Counter-Plaintiff Edwards to answer questions. MS. HADDAD COLEMAN: Yes, that's the one. THE COURT: Is that the one? MS. HADDAD COLEMAN: Yes, Judge. As this court is aware, the only thing pending at this point in time in the case is Mr. Edwards' claim of abuse of process malicious prosecution against Mr. Epstein. The abuse of process claim has been disposed of. It was successfully won on the summary judgment and is no longer an issue. So the only operative portion of the Fourth Amended Counterclaim is count two, malicious prosecution. In that complaint, Judge, against Mr. Epstein, Mr. Edwards asserts in paragraph 24, "While prosecuting legitimate claims on behalf of his clients, Edwards has not engaged in any unethical, illegal, or improper conduct, nor has Edwards taken any action inconsistent with the duty he has to vigorously represent the interests of his clients. Epstein has no reasonable basis to Palm Beach Reporting Service, Inc. EFTA00788222 112 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe otherwise, and never had any reasonable basis to believe otherwise." Then in paragraph 33, Edwards lists the damages he suffered as a result of Epstein's alleged wrongful conduct. Judge, damages aren't an actual element of the claim of malicious prosecution that must be proven in this case. Injury to his reputation, mental anguish, embarrassment and anxiety, fear of physical injury to himself and members of his family, the loss of value of his time required to be diverted from his professional responsibilities, the cost of defending against Epstein's spurious and baseless claims. So as a result of those allegations, Mr. Edwards was deposed. Within his deposition -- nearly every section -- the question was answered with an objection by Mr. Scarola. The first portion of our motion deals with Mr. Scarola's very long and laborious speaking objections. And that's an issue the Court can read and perhaps rule upon later, because we would like to just get to Palm Beach Reporting Service, Inc. EFTA00788223 113 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 actual questions themselves. THE COURT: What is Q Task? What's that? MS. HADDAD COLEMAN: That's where I'm going, Judge. Page four, first question, "What type of information did you the put in Q Task?" Q Task, as the Court may be aware or may not -- THE COURT: I don't. That's why I'm asking. MS. HADDAD COLEMAN: It was created at RRA. It was a form of instant messaging within the office where the messages received in the office can be deleted. I believe it was created by Mr. Adler, a way in which you can communicate about a case, invite certain people to participate, and then it can be deleted. And based on information, again, available at the time the suit was filed, there was information about the Epstein cases put in Q Task. So those questions weren't answered. And then the questioning continues Palm Beach Reporting Service, Inc. EFTA00788224 114 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 regarding how LM and EW came to bring a case to Mr. Edwards for him to prosecute against Mr. Epstein. And those questions -- a privilege is asserted. They are not relevant here. They are improper. And furthermore more, Judge, if the Court looks to the specific complaint filed by Mr. Epstein against Mr. Edwards, the allegation that we are stuck to defend here, Rothstein and the litigation team knew or should have known that the three filed cases were weak and had minimal value for the following reasons. Judge, LM and EW were two of the three cases that Mr. Edwards and the Rothstein's firm were prosecuting against Mr. Epstein. LM had testified that she never had any type of sex with Mr. Epstein. She worked at numerous strip clubs, is an admitted prostitute, has a history of illegal drug use, and has asserted her Fifth Amendment to avoid answering questions in deposition testimony. EW testified that she worked at 11 different strip clubs, including one in Palm Beach Reporting Service, Inc. EFTA00788225 115 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 which RRA represented the strip club, The Cheetah, and that EW also worked as a showgirl. Then the same thing with Jane Doe, seeking damages, claiming severe emotional distress. So these are the three cases that Edwards was prosecuting against Mr. Epstein while working at RRA. There's a causal link alleged by Mr. Epstein in his complaint against Mr. Edwards, which forms the basis of Mr. Edwards' lawsuit. Mr. Edwards has asserted that he always acted in good faith, and everything he did while he was at RRA was on the up and up. So these questions go not only to what Mr. Edwards did on behalf of his clients while he was a partner at RRA, but also directly to RRA's involvement in the case and what Mr. Epstein alleged in his complaint against Mr. Edwards that forms the basis of Mr. Edwards' lawsuit. So claiming attorney-client and work-product privilege when asked about EW and LM in Q Task and when information as put in there are questions that should be Palm Beach Reporting Service, Inc. EFTA00788226 116 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 overturned. Judge, the testimony given by LM and EW before and after RRA became involved in this case is definitely a central issue here. There was testimony given to the FPI, we believe, because we have privilege logs and -- can't get the information yet, but that's a subject of another motion -- their testimony changed substantially once RRA became involved in this case. That goes right to crux of, again, what Epstein knew at the time these suits were filed. The suit was filed against Edwards, and what Edwards was doing in this case. Judge, if you turn the page, lawyers for Mr. Epstein asked Mr. Edwards if in 2008 if he knew whether LM was listed -- I'm sorry -- EW was listed as or deemed to be a victim by the United States Attorney's Office. He again refused to answer that. One of the issues, again, that keeps being raised is the issue of settlement of these cases or ginning up these cases. This is information that goes back to the crux of that issue, and the responses Palm Beach Reporting Service, Inc. EFTA00788227 117 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are necessary not only for Epstein to defend this case, but more importantly for Edwards to try to prosecute this case. If he's alleging that everything he did was legitimate and on the up and up, he should have no problem answering the questions related to what he did. Judge, if you continue on to pages six and seven, the question turns to communications that Mr. Edwards had with the press regarding interviews with his clients. And again, he asserts privilege communications. This is about communicating with the press. There's no basis in law. I will get to the legal arguments later, but I am just going through the questions that refused to be answered at this time. Next it discusses the deposition of the subpoena served on Ms. Maxwell. And Mr. Edwards is asked, "Do you -- is she neither -- would you agree that neither Jane Doe nor LM" -- who are, again, Mr. Edwards' two clients -- "have testified that there have been any connection whatsoever with Ms. Maxwell?" Palm Beach Reporting Service, Inc. EFTA00788228 118 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 answers, "Yes, I would agree." The question then continues to ask, "You know why they are trying to serve a subpoena on Ms. Maxwell to get testimony that these girls that Mr. Edwards was representing never made any allegations that Ms. Maxwell had anything to do with the case?" THE COURT: Who is she? MS. HADDAD COLEMAN: She's a very wealthy female who was touted to the investors as another reason why Mr. Epstein would supposedly want to settle these cases to keep her out of it. Next question: "What occurred in the cases that -- investigation of Mr. Epstein while Mr. Edwards was employed by -- and a partner at Rothstein, Rosenfeldt, Adler?" Mr. Edwards is asked what investigators worked on Mr. Epstein's cases. Not even what work they did at this point, just who worked on it. Refuse to answer. "Who was the first investigator that you believe was involved in investigating Palm Beach Reporting Service, Inc. EFTA00788229 119 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 cases, just to name that topic?" Mr. Scarola: "Work product, instruct you not to answer." It goes on. "Who" -- at the bottom of page seven. "Who other than Mr. Fisten from an investigator -- from an internal investigator and RRA employee worked on doing investigations on the Epstein files?" Mr. Scarola: "Same objection. Same instruction." "You're claiming work product?" "Yes." And then the conversation continues, then at the bottom -- at the bottom of page seven, "Have you ever directed -- did you ever direct investigators during the time you were at RRA -- and that's the question you are claiming privilege over, correct?" Mr. Scarola: "I am claiming the privilege with respect to any action that was taken by Mr. Edwards or at Mr. Edwards' direction in connection with the investigation, prosecution of the claims against Mr. Epstein." It goes on. The question -- Judge, if Palm Beach Reporting Service, Inc. EFTA00788230 120 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you read this yourself -- I don't think I need to read it into the record page by page. Same objection. Same instruction. Mr. Edwards will not answer any questions regarding what he did or didn't do. This is in direct response to any question related to an investigation of Mr. Epstein solely while he was working as a partner at RRA. Judge, the next page, the subject matter of the examination of deposition turns to other investigations. "Did Mr. Roberts ever perform investigation work on any of the Epstein files?" "Same objection." Judge, you can go through again, that goes to -- Mr. Scarola objects to every question asked. Then the subject turns to Alfredo Rodriguez. Mr. Epstein's attorney attempted to ask on two separate dates about Mr. Rodriquez in the deposition. And again, the first question, Judge -- you can look at he dates and see how germane these issues Palm Beach Reporting Service, Inc. EFTA00788231 121 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 are. THE COURT: Who is Mr. Rodriguez? MS. HADDAD COLEMAN: He is a man who is alleged in Mr. Edwards' -- some of Mr. Edwards' pleadings as -- I'm sorry, Judge -- something to do with -- he was Mr. Epstein's housekeeper. I apologize, Judge. I came into this case in 2012, so I don't know sometimes all of the facts that came before me. Between those two dates, that is July 29th and August 17th, 2009 -- and again, if the Court remembers, the date of the Ponzi scheme and the implosion Did you speak with Mr. Rodriguez at all? Refuses to answer. All I am asking right now, not the substance, but just so the record is clear, did you the speak with him? And again, Mr. Edwards won't answer. The examination continues regarding contact with Mr. Rodriguez. And then again you can see all the privileges that were responded to as a result of those questions. Palm Beach Reporting Service, Inc. EFTA00788232 122 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 Judge, next we're at page 11. The subject matter turns to Mr. Edwards' communications with Maria Villafana, who is the United States attorney -- assistant United States attorney involved in the Epstein cases. Question: My question is only did you speak to her prior to filing that complaint, Doe versus United States. It's just a yes or no. Refuses to answer. Throughout the entire questioning there he refuses to answer. Then it turns to Mr. Edwards' conversations with FBI agents in connection solely about the Epstein cases. And again, he refuses to answer. Page 12, Judge, is where we really get into the heart of the matter. And the subject matter of the examination turns to Mr. Edwards' purported interactions with anyone associated with the Epstein cases. And before I get into these questions, Judge, as the Court may recall and be aware, in some of his pleadings, Mr. Edwards has Palm Beach Reporting Service, Inc. EFTA00788233 123 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 asserted that the RRA firm and Mr. Edwards' actions were so zealous during this time period -- as part of his defense -- because there was a joint prosecution agreement in the cases against Mr. Epstein and that RRA was asked to take the lead, or that Mr. Edwards was asked to take the lead because he had three plaintiffs. So these questions are very germane, not only to Mr. Edwards' assertion of why he did what he did, but more importantly to what was actually occurring in these cases during the time frame in which Mr. Epstein formed his basis to file suit against Mr. Edwards. Question: "Mr. Edwards, among the plaintiffs' lawyers, is there any type of joint prosecution agreement related to Mr. Epstein?" "Same objection. Same instruction." Judge, this goes on for two pages. You can see it yourself. Mr. Edwards will not answer any question. This wasn't even asking for a copy of the agreement or what it is. We were just asking what exists. Palm Beach Reporting Service, Inc. EFTA00788234 124 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next page. The discussion turns to the manner in which the cases were handled while Edwards was a partner at RRA, the meeting he had with Mr. Rothstein. We asked: "The meeting you had in Mr. Rothstein's office with Russell Adler and some unknown person on the phone, were you given any direction at that time that certain discovery should be done, certain tactics should be used with regard to prosecuting the Epstein cases?" "Objection." Question: "What did -- what information did Mr. Rothstein send you that involved Mr. Epstein?" "Same objection. Same instruction." Question: "At the meetings that you at the meetings that occurred where these various lawyers, Berger, Adler, Stone, Rob Bushel were present and Epstein was discussed, was the discovery and/or investigation regarding Mr. Epstein ever discussed?" "Objection." Next line of questions. It turns to Palm Beach Reporting Service, Inc. EFTA00788235 125 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 events surrounding the prosecution of the Epstein cases in 2009. Again, Judge the crux of the investigation. "In setting these depositions that is, in requesting these depositions be taken some time in June or July of 2009 or requesting dates for them, did you have discussions with other attorneys at your firm as to the benefits that would exist in your case -- your three cases against Mr. Epstein by taking these individuals' depositions?" "Objection. Instruct you not to answer." Question: "Mr. Edwards, were you involved in any discussions regarding the depositions -- I'm sorry -- regarding the deposing of any of the people -- of these individuals -- Mr. Trump -- that is, in discussions with any other lawyers in your firm, including Scott Rothstein?" "Same objection. Same instruction." "Did you ever discuss with Mr. Rothstein or anyone on his behalf the Palm Beach Reporting Service, Inc. EFTA00788236 126 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 value of taking the depositions of Trump, Dershowitz, former President Clinton, David Copperfield, Leslie Wexner as an inducement to get Mr. Epstein to settle his lawsuits?" Again, Mr. Scarola objects. Judge, this all continues on the next page. The questioning goes on about flight data, planes own by Mr. Epstein. And again same objection. "Were you involved with -- in the discussion to receive flight data associated with any planes purportedly owned by Mr. Epstein?" "Objection. Instruct you not to answer." "Did you have any discussion within your firm with regard to taking the deposition of celebrities, famous people who were reportedly on the plane so that they would be deposed and it would be an inducement to Mr. Epstein to settle his lawsuit?" "Same objection. Same instruction." Question: "Isn't it true, Mr. Edwards, in taking the deposition or in attempting to Palm Beach Reporting Service, Inc. EFTA00788237 127 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 take the deposition of Donald Trump, you had no information that Mr. Trump had any knowledge of any female having -- that is, underage female ever having been on Mr. Epstein's plane and having been assaulted by him?" And Mr. Scarola: "What Mr. Edwards knew or didn't know in connection with this prosecution of a pending claim is protected by privilege. I instruct him not to answer." The conversation goes on, Judge, to investigation of Officer -- I'm going to say his name wrong. I apologize -- Vakeri (phonetic) -- purpose of the conversation with this officer. No answer, yet he's listed on the witness list at this time. Then the conversation turns to Ken Jenne, former Sheriff who worked at RRA during the time in question. THE COURT: What page are you on? MS. HADDAD COLEMAN: I'm at the top of page 15. Same objections. Then, Judge, the second deposition, Palm Beach Reporting Service, Inc. EFTA00788238 128 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 which occurred immediately prior to this court granting the summary judgment motion, Mr. Edwards was asked additional questions. In addition to the fact that if he were asked all the questions asked the first time would he object again. And he said he would, he would assert the same objections. So Mr. King is at this deposition objecting on grounds of relevancy, materiality, instructing the witness not to answer. And then if the Court turns to page 16, there's actually a statement of government privilege in response to a question: "Did you ever have any contact with Kendall Coffey regarding the propriety or asking him an opinion on the propriety of taking that book from Mr. Rodriguez?" "Same objections. Work product and attorney-client privilege and government privilege." Then again, Judge, if you go on page 16, the conversation turns to, "If we ask you every question that was asked in the first deposition would you assert the same Palm Beach Reporting Service, Inc. EFTA00788239 129 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 privileges?" And they said yes. Then it's made clear that after the court rules on it the deposition will be continued. Then on the next page, Judge, Mr. King presents that they did not produce any items responsive to Schedule AB served with the deposition duces tecum relating to any damages suffered by Mr. Edwards as a result, allegedly, of this lawsuit, which is, again, an element of this case. He asserted financial privacy privilege at the deposition as to anything related to his work, how much money he made, how much money he made while at RRA, how much money he made off the Epstein cases and things of that nature. So, Judge, those are the summaries of topics in the depositions for which we are seeking responses from Mr. Edwards. As set forth in detail within the motion and the case law presented, neither the attorney-client privilege nor the work-product privilege is applicable to virtually anything we ask, and the argumentative objections made by Counsel, as Palm Beach Reporting Service, Inc. EFTA00788240 130 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well as other certain questionable objections, have no basis in his assertions and should be overruled. THE COURT: Let me you. Do you know whether or not the objections are being asserted during the pendency of the claims by the females that had sued Mr. Epstein and that Mr. Edwards was representing at the time since then having been resolved, to my knowledge -- all of those cases? MS. HADDAD COLEMAN: Judge -- I'm sorry. THE COURT: That's okay. Or was a matter of objecting relative to mental impressions when it comes to work product? Because I really don't see an attorney-client privilege in any of questions asked as it relates to the present case, that is, Edwards/Epstein matter. Does it relate to attorney and work product privilege as it relates to that case, the current case that we have in front of us? MS. HADDAD COLEMAN: Judge, Mr. Edwards sued Mr. Epstein. And he asserted in no uncertain terms in his complaint that every Palm Beach Reporting Service, Inc. EFTA00788241 131 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 action he took in these cases were legitimate and for a legitimate purpose, and he did not engage in any impropriety. As a result, these questions, many of which just required a yes or no answer, go to the crux of the allegations he made. He made the statement -- THE COURT: I understand. And my question is not necessarily one of relevance particularly for discovery purposes where we know that the bounds of discovery are much broader than what may be admissible. The test is whether or not the information sought is reasonably calculated to lead to the discovery of admissible evidence. What I'm trying to understand, though, is one of privilege -- and whether you can answer for me -- perhaps Mr. Scarola will be able to do so -- the timing of these depositions may or may not be close to when these cases were still -- the minor female cases or the adult female -- whomever it was that sued -- sued Mr. Edwards (sic) were to recover damages for alleged physical abuse. So my question is whether or not these Palm Beach Reporting Service, Inc. EFTA00788242 132 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 privileges that were asserted -- particularly the work-product privilege related to those cases that would have been still pending at the time these depositions were taken, meaning the ones that Mr. Edwards was representing the females -- or was it in conjunction with the case that is at issue here. MS. HADDAD COLEMAN: Judge, the three cases that Mr. Edwards was prosecuting against Mr. Epstein, the civil cases, were all settled by the time the second deposition took place. I believe they were settled shortly after Mr. Edwards gave his first deposition. But they were certainly settled before I came into the case in 2012. So I can tell you, in no uncertain terms, by the time Mr. Edwards' second deposition was taken they had long been settled, because that was in 2013. Judge, I would say not only were the cases closed, but Mr. Edwards put his work product at issue by filing this suit. So certainly, if not when the cases were still Palm Beach Reporting Service, Inc. EFTA00788243 133 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pending, but once the cases were settled he needed to answer those questions and still does. With respect -- I guess to answer your question regarding the work-product doctrine and of course, obviously, this information is needed, as the Court's aware what the law says -- this information is needed for Mr. Epstein to defend himself. And indeed, more importantly, Mr. Edwards will need to use it if he's going to successfully attempt to prosecute this case against Mr. Epstein and say what he alleges in his complaint. He has the burden of proof that everything he did was on the up and up. You can't assert a privilege for every action you took in prosecuting a case and then come back and not give us the information of what you did to defend it. Judge, the law states that if we show that we the party seeking the discovery need the material for preparation of our case, and we are unable, without undue hardship, to obtain the equivalent material another Palm Beach Reporting Service, Inc. EFTA00788244 134 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 way, that the court should grant us the access to the information. That's in Florida Rule of Civil Procedure 1.280(b)(4), and in Genovese versus Provident Life 74 So.3d 1064 Florida Supreme Court 2011. It's also established, Judge, under the law, that a plaintiff cannot assert work-product privilege to avoid answering questions regarding his own allegations that he alleges in a complaint, even if the question reveals a legal theory of his case. And the case that stands for that proposition, Judge, is Dunkin' Donuts versus Mary's Donuts, 206 F.R.D. District of Florida 2002. rationale supporting this 518 Southern And again, the was quoted by the Florida Supreme Court in 1994 in the Southern Bell Telephone and Telegraph Company versus Deason. Frankly, Judge, if the Court wants me to go through the other objections that were raised in deposition that have no basis in law in a deposition, objections such as assumes facts not in evidence; hypothetical question; no proper predicate; not Palm Beach Reporting Service, Inc. EFTA00788245 135 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 reasonably calculated to lead to the discovery of admissible evidence; the financial part -- I'm sorry, government privilege -- it's all laid out there. I don't think it requires a long belaboring legal argument from me. Frankly Judge, the objection on the grounds of financial privacy -- I'm on page 22 of my motion judge. THE COURT: I am with you. MS. HADDAD COLEMAN: We understand perhaps better than the average defendant that there is a financial right to privacy and sometimes it can be waived. Judge, it can be waived when the material that's sort by a party is relevant to the subject matter of the pending action. Here, Judge, Mr. Edwards is claiming damages against Mr. Epstein. Part of those damages include injury to his reputation as an attorney; loss of time diverted from his practice, again, as an attorney. And how does one quantify this? It's monetary. It's financial. If his reputation suffered somehow as a Palm Beach Reporting Service, Inc. EFTA00788246 136 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 result of being sued by Mr. Epstein in 2009 and not by being partners with Scott Rothstein, we are entitled to pursue that. We're entitled to the discovery to show how much money he made while he was working at RRA, before he was working at RRA, after he worked at RRA, what his relationship was with the alleged other plaintiffs with whom he had a joint prosecution agreement that he refuses to turn over, how the money was split up once the cases were settled. All of those issues, Judge, relate to financial damages that he is alleging in this case. THE COURT: Joint prosecution agreement means that one or more than one of these alleged victims would be jointly prosecuting Mr. Epstein? Is that what this is supposed to be? MS. HADDAD COLEMAN: Yes, Judge. In some pleadings, Mr. Edwards has asserted, in defense to our allegations of what went on in the cases while he was a partner at RRA, he alleged that basically RRA was taking the helm, because they had the financial means Palm Beach Reporting Service, Inc. EFTA00788247 137 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to conduct all this discovery. And it was pursuant to a joint prosecution agreement or a co-plaintiff -- I might be using the wrong words -- but it was asked in the deposition. Mr. Edwards brought this up. This wasn't something that Mr. Epstein just thought was occurring. Then when we pressed Mr. Edwards to provide answers to that with whom, how did it work out, did you have anything in writing, Mr. Edwards refused to answer the questions, as you saw in here, pursuant to work-product privilege, attorney-client privilege. In this case, Judge, the damages he's claiming allegedly could have started in 2009 and could be continuing to present date, because this lawsuit is still going on. THE COURT: I understand. MS. HADDAD COLEMAN: So it's our position that because he's made his finances or his financial damages -- it's an element of this case. It's not just run-of-the-mill let's let the jury decide it Palm Beach Reporting Service, Inc. EFTA00788248 138 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thought he was damaged, he has to prove damages. And we are entitled to explore what damages he may have suffered so we can determine the value of his case, if any, and so we can properly defend against it. THE COURT: Was any production in the request made in that respect? MS. HADDAD COLEMAN: Yes, Judge. Again it was requested in his depo, and he objected to everything. And we did serve him after -- after the stay was lifted, I served damages interrogatories to Mr. Edwards, and we received unverified responses in the middle of last week. So I don't have a verified answer to those yet. THE COURT: Do you have those with you so I can take a look? We may be able to bypass some of the discussion and get into the sufficiency of those unverified answers. MS. HADDAD COLEMAN: I do, Judge. If you give me just a moment. It's in my file. Judge, the instructions won't be here, but the relevant time period was 2006 -- or 2008, I believe, right before Mr. Edwards went to work at RRA when he was a sole Palm Beach Reporting Service, Inc. EFTA00788249 139 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 practitioner. And before that he was an assistant state attorney. May I approach? THE COURT: Sure. MS. HADDAD COLEMAN: This is Mr. Scarola's filing notice of serving unverified answers, as well as our questions and his answers, the objections. MR. SCAROLA: Your Honor, may I request a copy of that? I didn't bring it with me, as it is not raised as an issue in the motion. THE COURT: Obviously it was something that I was interested in and perhaps it wasn't raised but it could hopefully curtail some of discussions here once I take a look at them. Deputy, would you ask Denise to kindly make an extra copy, please? MS. HADDAD COLEMAN: Judge, with respect to the rest of the motion, we just -- in the motion we -- again, the last deposition was taken a month before you granted the first summary judgment. And as you know, from June 2013 -- I'm sorry from Palm Beach Reporting Service, Inc. EFTA00788250 140 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 case had basically not been actively prosecuted in this court until June 2017 when the Florida Supreme Court issued its final ruling. So should the Court grant our motion, we did preserve the right to redepose Mr. Edwards on these issues. We feel not only that all of the actions taken by Mr. Edwards while prosecuting the cases at RRA are issues that need to be answered. Judge, Mr. Edwards' reputation and -- commiserate with his financial business what he was bringing in as an attorney and through his law firm both before and while at RRA, as well as after leaving RRA, go straight to the heart of what he's claiming, being injury to his reputation and time away -- diverted away from his cases. We are hopeful that the Court will review all of that information as well as the case law relied upon in our motion, and compel Mr. Edwards to answer the questions that are related to this lawsuit. THE COURT: As I said, I don't know if you've had the opportunity to review the Palm Beach Reporting Service, Inc. EFTA00788251 141 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answers that are unverified. From a telephone conversation that Mr. Goldberger, Mr. Scarola and Mr. Edwards and I had regarding the logistics of trying to deal with the stay or a motion and how we were going to go forward, the manner in which we can proceed -- Mr. Edwards was on the telephone from Jamaica so it may have been just a matter of his unavailability that caused the unverified answers. Have you had a chance to look at them? MS. HADDAD COLEMAN: Judge, I was at a funeral Friday and couldn't appear telephonically. I did. He object -- if you read the first 25, objection, irrelevant, not likely to lead to admissible evidence, overbroad, without any law or any assertion other than that. Then the last few say, different answers, which is -- a few of them are really related to the verification. But basically there's no answers there, other than the amounts -- he gives us the amounts that the three cases Mr. Edwards was prosecuting against Mr. Epstein were settled Palm Beach Reporting Service, Inc. EFTA00788252 142 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 for, which clearly we know because Mr. Epstein paid the money. So there's no substantive answer to any of them, would be my answer to you at my first glean of them. THE COURT: All right, we will take a look at that. All right, in the meantime while I'm waiting to get those, Mr. Scarola, you want to respond to these general areas of inquiry and the position that you are taking as of now, because I think that's really what matters as opposed to then? MR. SCAROLA: Yes, sir, I would like to. Indeed, that is a very significant distinction because -- THE COURT: Deputy, hand out the copies. MR. SCAROLA: At the time that both depositions were taken, there were competing claims that had not yet been resolved, including Mr. Epstein's claim against Mr. Edwards, in which Mr. Epstein bore the burden of proving that Mr. Edwards lacked a good faith basis for all of the claims that he brought against Mr. Epstein and all of Palm Beach Reporting Service, Inc. EFTA00788253 143 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 conduct that he had engaged in during the course of those prosecutions. Obviously, with regard to the conduct that occurred during the course of the prosecutions, that conduct was covered by the litigation privilege, and therefore, all inquiries into any post-filing activities on Mr. Edwards' part was not relevant or material and could not lead to the discovery of relevant or material information. And since it was relevant only to or since the line of inquiry was being pursued with regard to Mr. Epstein's claims against Mr. Edwards, there was no sword/shield concern in that regard. We are now in a position where Mr. Edwards' state of mind at the time he filed his claims against Mr. Epstein has been resolved by virtue of a motion for summary judgment. That is, we moved for summary judgment on the basis that Mr. Edwards did nothing improper, had probable cause to support all of these claims. No opposition was filed to that motion. Palm Beach Reporting Service, Inc. EFTA00788254 144 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 And on the eve of the summary judgment hearing, a voluntary dismissal was taken. So there has been a disposition favorable to Mr. Edwards as a matter of law with regard to those claims. So what remains at issue presently is not Mr. Edwards' state of mind, but Mr. Epstein's state of mind. At the time that Mr. Epstein filed his claims against Mr. Edwards -- the five claims that we have referenced earlier this morning on more than one occasion -- the issue in that regard is limited to what Mr. Epstein knew at the time he initiated those prosecutions, and not what he has somehow able to try to discover to attempt to justify his unjustified and unjustifiable actions at the time it was taken. That is, he cannot prove that he had probable cause by reference to things he had no knowledge of, and could not have had any knowledge of at the time he filed those claims. That would specifically include knowledge of any communications that Mr. Edwards had with his clients. Palm Beach Reporting Service, Inc. EFTA00788255 145 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 Obviously, Mr. Epstein did not know about the content of attorney-client privilege communications, and could not rely upon the existence of the substance of those communications to try to justify his lawsuit against Mr. Edwards. He also did not know about Mr. Edwards' work product, Mr. Edwards' mental impressions, Mr. Edwards' Q-Tip (sic) communications -- THE COURT: Q Task. MR. SCAROLA: Q Task. Thank you. -- in the intra-office system that existed during Brad Edwards' prosecution of his claims against Mr. Epstein. Incidentally, Brad Edwards began the prosecution of those claims long before he ever became a member of RRA. Those cases were all filed, they were being actively prosecuted and pursued when Mr. Edwards was hired by the Rothstein, Rosenfeldt, Adler firm. But what went on in those cases after Brad Edwards had filed them, was obviously not something that Mr. Epstein could rely Palm Beach Reporting Service, Inc. EFTA00788256 146 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 upon. If he didn't already know it at the time he filed suit, he could not rely upon it as justifying his having filed suit, so it could not possibly be part of probable cause. Now, one thing that is glaringly omitted from the argument that Your Honor has heard on these issues is how Brad Edwards could possibly waive a privilege that doesn't belong to him. The attorney-client privilege is not the lawyer's privilege. The attorney-client privilege belongs to the client. The clients are not parties to this action. The clients have taken no action that waive attorney-client privilege. not waived it and Brad Edwards is could They have ethically obliged to protect the confidentiality of those communications, not only during the period of time that he was actively representing these clients, but the attorney-client privilege survives and continues past the termination of the attorney-client relationship. Indeed, even after a client has died the obligation to Palm Beach Reporting Service, Inc. EFTA00788257 147 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 protect the confidentiality of the communication continues. With regard to the work-product privilege, that privilege is very clearly defined in Florida Rule of Civil Procedure 1.280(b)(3). And, Your Honor, that is quoted in the response in opposition to Jeffrey Epstein's motion to overrule objections and compel answers to these questions. It is quoted in its entirety at page two of our response. And it says that a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule. That means it must be relevant and material and prepared in anticipation of litigation or for trial by or for another party, or by or for that party's representative, including that party's attorney, consultant, surety, indemnitor, insurer or agent. And I will pause there for just a moment. The joint prosecution agreement was an agreement among the plaintiffs' lawyers who all had claims pending against Jeffrey Epstein for the sexual molestation of their Palm Beach Reporting Service, Inc. EFTA00788258 148 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 minor female clients. An agreement was entered into to share confidential information for purposes of serving the unified interest of those claims. That's what the agreement was. That's all the agreement was. There was no fee sharing agreement. There was nothing beyond the fact that information could be shared, and the confidentiality of that information preserved within the context of the common interest that those plaintiffs shared. So I point that out only because it relates to this reference to including that party's attorney, consultant, surety, indemnitor, insurer or agent only upon a showing that the parties seeking discovery have a need of the materials in the preparation of the case -- that goes to this stage whether they have any relevance whatsoever, because we are no longer dealing with Brad Edwards' state of mind, only with Jeffrey Epstein's state of mind, and is unable, without undue hardship, to obtain the substantial equivalent of the materials Palm Beach Reporting Service, Inc. EFTA00788259 149 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 other means. That means you must exhaust alternative means of discovery to uncover the facts before you attempt to invade the work-product privilege. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of mental impressions, conclusions, opinions or legal theories of an attorney or their representative of a party concerning the litigation. Well, what is the stated purpose of this? The only thing we have heard is, we want to discover Brad Edwards' mental impressions. We want to discover what he was thinking when he was making choices that he made during the course of the litigation and what he was thinking when he brought these claims. Well that's no longer an issue before this court. We are not here to decide what Brad Edwards was thinking. That issue has been resolved by way of a voluntary dismissal. What we are here to determine is whether Jeffrey Epstein had any reasonable basis whatsoever to support his Palm Beach Reporting Service, Inc. EFTA00788260 150 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 claims, or was he acting out of malice. So the law clearly tell us the mental impressions of lawyers are not discoverable. Those are sacrosanct work product. THE COURT: Let me stop you for a moment and interrupt, as I have others, with a question. MR. SCAROLA: Surely, sir. THE COURT: In terms of now, the issue is one of Mr. Edwards' bringing an affirmative claim against Mr. Epstein for malicious prosecution. The elements have been discussed with some detail earlier today. Probable cause being one of those that we focused on. The mental impressions that Mr. Edwards may have had -- and that would be potentially protected as it relates to claims of the clients that Mr. Edwards represented against Epstein -- can be compartmentalized as it relates to those claims. However, there is an affirmative claim being made by Mr. Edwards against Mr. Epstein for malicious prosecution Palm Beach Reporting Service, Inc. EFTA00788261 151 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relating to at least several issues -- the ones that we have discussed and perhaps there's more -- is the federal case that was brought that allegedly mirrored the state case, and Mr. Epstein's apparent belief that those claims were being brought to his detriment, arguably -- because I think there's still a question out there whether or not Mr. Epstein actually sustained any cognizable damage as a result of the claim that he brought against Rothstein, Edwards and LM. We will leave that for another day. But there's still issues of the federal case being brought that allegedly mirrored the state claim, and in his view Mr. Epstein's view was somehow inflated to appease the investors in this Ponzi scheme, and thus potentially subject him to further exposure as it related, not only economically for damages, but also costs of the defense, attorney fees and the like. Then also this claim that somehow the alleged factoring of these cases -- I guess they admitted to the factoring of these cases to the extent that shares were Palm Beach Reporting Service, Inc. EFTA00788262 152 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 apparently sold to investors, and the attempt to inflate the amount of those cases to the detriment, again, allegedly of Mr. Epstein, that lengthy discussion as to the current claim would be compartmentalized and unassociated with the prior cases where Mr. Edwards is representing the alleged victims. There has to be some method of discovery here to properly vet probable cause on behalf of Epstein as it relates to his defending the affirmative action brought by Edwards. He cannot be completely and entirely hamstrung from making at least into that aspect of the matter. I agree with you from the asking questions why did EW or some headway standpoint of any of these other females come to you for advice, it would not be sacrosanct. It would not be something that would be subject to discovery. It would be clearly attorney-client privilege, and that privilege would remain consistent, even if the case had been settled. Palm Beach Reporting Service, Inc. EFTA00788263 153 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 To me, I don't see any relevance from the standpoint of would it be reasonably calculated to lead to the discovery of admissible evidence. But things such as the investigation and how this investigation proceeded when these cases were being factored, when they were being sold to these so-called investors, when the time period was where the LM case was brought to federal court, what transpired during that period of time that may have given rise -- again, getting back to the reasonable calculation analysis for discovery of admissible evidence, why would at least some of that material not be subject to discovery, perhaps not admissibility, but for discovery purposes. MR. SCAROLA: Everything that Mr. Epstein knew about what was going on, everything that Mr. Epstein reasonably believed about what was going on is relevant and material to whether Mr. Epstein had probable cause to sue Brad Edwards for some viable tort claim arising out of that reasonable belief. Palm Beach Reporting Service, Inc. EFTA00788264 154 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: When he filed the suit. MR. SCAROLA: When he filed the suit, yes, sir. So the point in time that we have got to look at is the point in time at which the lawsuit was filed, because that's when probable cause is measured. If we are talking about an arrest, the viability and legality of the arrest is judged based upon what the law enforcement officers reasonably believed at the time that the arrest was made. If we're talking about the probable cause for the filing of the lawsuit, we are talking about what the plaintiff reasonably believed at the time of the filing of the lawsuit. And as I candidly acknowledged earlier, that might be a mistaken belief, just as law enforcement officers may mistakenly believe a suspect is the one who committed the crime. But if the belief is reasonable, probable cause exist. If Mr. Epstein's belief at the time he filed was reasonable, then probable cause Palm Beach Reporting Service, Inc. EFTA00788265 155 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 existed. But he cannot attempt to establish probable cause on the basis of things that he neither knew nor could possibly have known, because in many circumstances, they hadn't even occurred yet. A lot of this inquiry -- THE COURT: That's fair. What hadn't occurred yet, I agree with you. But things that I focused on in the light most favorable to the broad nature of the law regarding discovery are those that I've already suggested allegedly did take place prior to the suit being filed. MR. SCAROLA: And it would help me if Your Honor gave me an example. THE COURT: I gave two. One was the filing of the federal case that increased Mr. Edwards' (sic) potential financial exposure as it related to the alleged damages -- MR. SCAROLA: Did you mean Mr. Epstein? THE COURT: Mr. Epstein's alleged -- MR. SCAROLA: I do that all the time. I apologize for interrupting the Court. THE COURT: Unfortunately they both Palm Beach Reporting Service, Inc. EFTA00788266 156 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 begin with Es. I did that before with somebody else. MR. SCAROLA: I just want the record to be clear. THE COURT: That's exactly right. It potentially increases Mr. Epstein's financial exposure as it related to the amount of stated damages. It conceivably would have and by virtue of the fact that two cases remained pending, would have increased, to some degree, his payment of attorney's fees and costs associated with the federal -- MR. SCAROLA: Had he ever been served with it. THE COURT: Had he ever been served. MR. SCAROLA: Which he never was. THE COURT: It did expose him, at least to some degree. MS. HADDAD COLEMAN: I'm so sorry, Judge. And I really don't mean to interrupt Mr. Scarola. He wasn't served with it, but it was filed under the consolidated case number, and he did, in fact, have to incur fees to file a motion successfully to Palm Beach Reporting Service, Inc. EFTA00788267 157 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dismiss that federal case. THE COURT: Okay, so the point I'm making is -- just to explain to you what I foresee -- or what I have seen as two examples, that being one of them, the other being this issue -- again, I'm not here to rule on the validity of these claims. I'm not ever here to rule on whether or not a jury is going to decide one way or the other on those claims at this point in time. But the other example that I raised was the issue that surrounds this factoring, and whether or not Mr. Edwards had any involvement, whether knowingly or unknowingly, to, again, somehow damage Mr. Epstein. And I'm unsure as to how that may have damaged Mr. Epstein. But at least, as I said before, trying to be as broad as I can in my analysis of what may be discoverable, i.e., reasonably calculated to lead to the discovery of admissible evidence on this issue of the bringing of the files into the Rothstein inner sanctum; Mr. Adler's alleged involvement in that endeavor to bring some Palm Beach Reporting Service, Inc. EFTA00788268 158 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 these New York investors who were apparently pushing the panic button because of their lack of faith in what was transpiring, according to Mr. Rothstein, as I read. And Rothstein's utilization of these files to prop up this scheme that he admitted to, and is now serving a significant jail sentence as a result thereof. I believe others have also received jail sentences from the Rothstein firm. So those are the areas of inquiry that I believe, at least arguably, have some merit. I agree with you that why LM or why EW or any of these other individuals came to Mr. Edwards and what Mr. Edwards was told by them as to their reason for coming to him would not be subject to discovery. MR. SCAROLA: Let me agree with Your Honor, if I could. Those areas that you have identified are legitimate areas of inquiry in terms of what Mr. Epstein knew about them at the time that he filed. But, what Mr. Epstein cannot do, because the law Palm Beach Reporting Service, Inc. EFTA00788269 159 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of privilege precludes him from doing it, is to find out today what Brad Edwards said to somebody else within his law firm -- one of his investigators, one of the other co-counsel who were helping him with this case, one of the former judges of this court who resigned in order to accept a position with Rothstein, Rosenfeldt & Adler, and was co-prosecuting this case with Brad Edwards. Mr. Epstein cannot say, Tell me about the conversation that you had with one another about the filing of this federal lawsuit, because those matters are privileged. What he can't do is find out what LM told him -- told Brad Edwards that led Brad Edwards to file a federal claim at the same time that he was prosecuting a state court case on behalf of that same plaintiff. So there are legitimate areas of inquiry with regard to those issues that Your Honor has identified. But those legitimate areas of inquiry don't justify an invasion into privileges that are absolute. And they don't justify invasions into a Palm Beach Reporting Service, Inc. EFTA00788270 160 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work-product privilege when mental impressions of counsel are expressly excluded from discovery, because the law considers the operations of an attorney's mind, his mental impressions, to be sacrosanct. Even when there's a reasonable basis for discovering some work product, mental impressions is not one of those exceptions. THE COURT: Well, I have gone through most of these questions. I am still trying to understand -- this really goes more to Mr. Epstein's counsel -- what specifically are the questions that you believe need to be answered? Discussions that Mr. Edwards may have had with respect to or with Ms. Villafana, the U.S. attorney, I don't know what that has to do with this particular case, other than to suggest that if in fact Mr. Edwards was pursuing that Victims' Rights case -- I again, don't mean to minimize that by not knowing the exact name -- as fuel to the fire that's already existing, meaning, may lead to discovery of evidence that they are Palm Beach Reporting Service, Inc. EFTA00788271 161 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 looking to submit, meaning that any discussions that Mr. Epstein may have been aware of between Mr. Edwards and Ms. Villafafia or anyone else associated with the U.S. Attorney's Office may have been a factor in why he brought this case in the first place. So I'm not sure what the purpose of that area of inquiry may be. MS. HADDAD COLEMAN: Judge, if the Court feels -- Judge, two answers to your question. First, if the Court has looked -- again, I don't mean to speak backwards, but I have to -- the exhibit and witness lists filed by Mr. Edwards in this case makes it clear that he has no intention of litigating a malicious prosecution claim. It is bringing up all of these issues. THE COURT: Let me deal with that, okay. I can do that. I am not asking you to take over what I am tasked to do, okay? Excuse me a moment. Let me finish so that I ask a poignant question. In going through the motion, both last Palm Beach Reporting Service, Inc. EFTA00788272 162 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 time and with you today, as you proceeded through some of these areas of inquiry, I really don't know -- and perhaps its context is sometimes a problem when you try to extract these things instead of having a whole transcript in front of me. It's difficult sometimes to get the full flavor of exactly what's being talked about. But irrespective of the difficulties that I have -- because I do these all the time. In other words, I get excerpts most of the time when I ask for the whole transcript so that I can put it into context. What is it here that is relevant to the claim that we are dealing with here from the standpoint of Mr. Edwards' claim against Mr. Epstein for malicious prosecution? For example, these issues about -- where I have already ruled and they're not going to be overruled, the attorney-client privilege. Questions like, Why did EW come? Why did she hire you in the first place? What was the purpose? I don't see how that is involved with anything of any significance Palm Beach Reporting Service, Inc. EFTA00788273 163 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 it relates to the malicious prosecution. MS. HADDAD COLEMAN: Judge, I would agree with you 100 percent. The problem we have and the issue with which we're faced and the reason we're asking these questions of Mr. Edwards is because he has listed them as witnesses in this case. Number one, we're deposing them soon. Number two, the exhibit list, if the Court has not yet looked at it -- again, I would hope that you would rule to keep it all out, because I agree it's irrelevant. However, if Mr. Edwards is going to be permitted, he can't pick and choose what parts of the privilege he's willing to waive. If he wants to list these girls for whom he was prosecuting cases as witnesses, when he, A, probably should have received their permission to waive the privilege before he listed them as witnesses, or B, made sure he wasn't not knowing where their file boxes were for a month while Rothstein was using them to further a Ponzi scheme -- either way, we did not make the them an Palm Beach Reporting Service, Inc. EFTA00788274 164 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issue. Mr. Edwards is. We are now defending. If the Court is saying that these testimony from these women is not going to come in, or that Mr. Edwards cannot use discovery or documentation from the underlying civil suits or attempts at criminal prosecution of Mr. Epstein in this case, then I would agree with you none of that is inquiry that's appropriate. However, based on the information we have in litigating since 2009, it appears to me, as the person defending this case, that Mr. Edwards is determined to try this as a criminal case against Mr. Epstein using these allegations purportedly by these women as his basis. What we would like to see happen and the evidence I would like to get from Mr. Edwards at this time is evidence of what was going on at RRA during the time he was prosecuting these cases. Judge, our undisputed facts solely deal with what went on at RRA and what Mr. Epstein knew at that time, and those are Palm Beach Reporting Service, Inc. EFTA00788275 165 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 questions we are asking. THE COURT: I don't have a whole lot of -- I don't have a problem with you, as I said before, getting into those areas of inquiry where I think at least they can be vetted, the federal case mirroring the state case. Why Mr. Edwards did what he did is probably going to be met with objection. Whether or not that case was filed, whether or not Mr. Epstein was served -- and I don't know what the ruling is going to be if there is an objection. Perhaps there is not going to be an objection. Certainly, however, assuming we get to the point that this is all going to go in front of a jury, and Mr. Epstein is going take a position that a reason for him bringing the case that he did was because of his perception as to why the federal court case was brought but never served that met with an order of Judge Marra, as I understand, of dismissal, Mr. Edwards may need to explain that. But that's not before me here. What's Palm Beach Reporting Service, Inc. EFTA00788276 166 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before me in pertinent part is this. A line of questioning regarding why was he hired by people name EW and LM. Clearly, attorney-client privilege and it maintains throughout, so, including now. Questions then regarding conversations between Mr. Edwards and the U.S. attorney -- or assistant U.S. attorney, Ms. Villafana, V-I-L-L-A-F-A-N-A, for the record -- we next get into a short discussion of -- I don't know what that's supposed to be. I guess that has something to do with Mr. Adler, but I don't understand the context. Then we get into an issue regarding TV stations and why he didn't want his clients to do interviews with TV stations. Again, I don't see any relevance to this malicious prosecution claim. The next is with this woman Maxwell, and what the connection was between Jane Doe and LM, if any, with Maxwell. MR. SCAROLA: May I address something so Your Honor has the factual background? Ms. Maxwell is alleged, through sworn testimony of multiple witnesses, to have Palm Beach Reporting Service, Inc. EFTA00788277 167 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 been Mr. Epstein's principal procurer of child victims. She would go out and prospect for those victims for Mr. Epstein, and is one of those individuals whom Mr. Epstein somehow managed to obtain federal immunity for in the negotiation of his non-prosecution agreement. So that's -- from a factual standpoint, that's Ms. Maxwell's fitting into this picture. The other individual that Your Honor asked about was Mr. Rodriguez, who was described as a housekeeper. I think he was more accurately -- could be more accurately described as a houseman or butler. THE COURT: At the Epstein home in Palm Beach. MR. SCAROLA: At the Epstein home. He was an eyewitness to comings and goings of many young females over the course of an extended period of time, and also identified other guests going in and out of the Epstein Palm Beach mansion during the same period of time. At one point in time Mr. Rodriguez Palm Beach Reporting Service, Inc. EFTA00788278 168 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 offered for sale a telephone directory that belonged to Mr. Epstein and included the names and contact information for a number of the young female victims as well as others with whom Mr. Epstein was associating. And Mr. Rodriguez was ultimately criminally prosecuted for the efforts to sell that evidence. But the evidence was ultimately obtained and became part of the probable cause for the criminal prosecution of Jeffrey Epstein, and for the civil prosecution of claims against him as well. So those are the two individuals that Your Honor requested some background information about. That's the background information. Kendall Coffey Kendall Coffey was an individual outside the Rothstein, Rosenfeldt, Adler firm who was considered to be an ethics expert, who was consulted about how to respond to Mr. Rodriguez's effort to sell these materials. THE COURT: He was a former U.S. attorney, correct, in the southern district? Palm Beach Reporting Service, Inc. EFTA00788279 169 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: Yes, Your Honor. THE COURT: So that's a long time ago. MR. SCAROLA: It is quite sometime ago. But you and I are both of the age where we remember that. THE COURT: Obviously, he was outside his official capacity. MR. SCAROLA: Yes. THE COURT: Special appointment or otherwise, he was an attorney at the time? MR. SCAROLA: Correct. MR. GOLDBERGER: Your Honor, I just need to clarify a couple of points that Mr. Scarola incorrectly made. THE COURT: Sure. MR. GOLDBERGER: I had a significant part in the non-prosecution agreement of Mr. Epstein, and Ms. Maxwell was never granted immunity and was not part of that non-prosecution agreement. That statement that Mr. Scarola made was certainly not true. There's no mention of Ms. Maxwell in the non-prosecution agreement in any way, shape or form, nor was she granted immunity. As to Mr. Rodriquez, Mr. Rodriquez was Palm Beach Reporting Service, Inc. EFTA00788280 170 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 either the houseman or the butler. But whatever information that he stole from the Epstein home had nothing to do with the prosecution of Jeffrey Epstein and was not part or any state prosecution. So those are absolutely inaccurate statements. I don't know if they matter to the Court in the issues you need to deal with today, but I needed to make sure the record is clear. THE COURT: That's fine. You can state for the record anything that you disagree with. I certainly I appreciate that. Then we get into the first question. It says -- now I'm on page seven -- quote, "In this particular instance associated with Mr. Epstein, what investigators worked on Mr. Epstein's case during the time you were at RRA?" Mr. Edwards responded to the question. And then immediately thereafter -- or least within a few lines -- it went directly to a gentleman by the name of Mr. Fisten, who, as I recall through the documents, was one of the investigators along with Ken Jenne and Palm Beach Reporting Service, Inc. EFTA00788281 171 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 someone else that I can't recall the name at the RRA firm during the pendency of most of the matters that we are dealing with today. Then they go on to talk about things, again, that have -- at least from my vantage point -- relative and marginal, if any, relevance to what we are dealing with in this particular case. MR. BREWER: Your honor, if I might. THE COURT: Yes, sir. MR. BREWER: I rise because I just want to remind the Court the argument that you heard this morning that Mr. Epstein, because he is such a bad person, knew that everything that Brad Edwards did was justified, and he knew that everything that Brad was saying was true. And then we have the allegation coming on top of that that Mr. Edwards says everything that I did was proper and ethical. And they want to then get into a number of matters -- or got into a number of matters saying when we get to the element of malice -- when we get to malice -- this was said this morning these are important because it shows that Palm Beach Reporting Service, Inc. EFTA00788282 172 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 Jeffrey Epstein had malice in his heart when he filed this lawsuit. Mr. Edwards should not be allowed at this point to say everything that I did was right, and then there be no inquiry into what he actually did and why he did it. THE COURT: What I have said throughout this afternoon's process is that I'm more than willing to at least broach the subject of having Mr. Edwards -- to the degree that it would be permissible -- account for certain issues that have been legitimately raised. That's why I repeated twice at least two things that have been brought to my attention through the pleadings and through the arguments of this federal court case and the factoring issues that are involved. The problem is none of that that I have gone through thus far really gets into either of those issues, and again, gets into matters of attorney-client privilege, which has already been discussed, and which Ms. Haddad Coleman also discussed, and, I think, candidly suggested were not subject Palm Beach Reporting Service, Inc. EFTA00788283 173 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to further inquiry. Then we get into who performed investigations on the Epstein files. MR. BREWER: Is Your Honor aware that the allegations with regard to the -- going through Mr. Epstein's trash to pull out particularly incriminating objects, that apparently did transpire on the part of these investigators? THE COURT: Okay. MR. BREWER: And I think it's actually covered in Rothstein's deposition -- somebody's deposition I read -- where they were talking about we have got other people that are on the line because we go through people's trash. THE COURT: And that's a police matter. If someone goes through someone's trash and is not authorized to do so -- I don't even think that you need a warrant any longer to go through people's trash, so I don't know if it's a crime or not a crime. But the point I'm making again is it's the same thing that Ms. Haddad Coleman raised. It only fuels the fire from my Palm Beach Reporting Service, Inc. EFTA00788284 174 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 objective standpoint on those questions toward why Mr. Epstein brought this case against Edwards at all in the first place, meaning, it could be reasonably inferred that he was upset that these people were, among other things, going through his trash and finding whatever objects that they may have found. That may have spurred, arguably, him to have brought this case. So again, I don't really see what the nature or the issues are that benefits Mr. Epstein's inquiry to these things that make any sense to me at all. MR. BREWER: It seems to me, Your Honor, if there was impropriety on Mr. Edwards' part, i.e., we don't know to this day whether he really knew what was going on within the Rothstein firm while he was there, we don't know that. It's arguable that he should have -- I have been practicing law for 39 years. And you have 13 boxes on the three main cases that you are prosecuting that go and stay outside your office in somebody else's office for whatever period of time -- we Palm Beach Reporting Service, Inc. EFTA00788285 175 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 heard three weeks. We have days. Whatever. You know something is going on. You may not know exactly what's going on, but you know. And it seems like if we are going to be faced with this argument that everything that he did while he was at the Rothstein firm was ethical, proper and in his ethical duty or fiduciary duty to protect or to go forward with the claim of his clients, there should be some inquiry allowed as to what he did. We know a lot of what he did. But then go back behind that and also say, Why did you do it? THE COURT: I will need some cases, because I continue to have some concern about whether or not his explanation for why, for example, he filed that federal case, whether or not that's even discoverable and that's not privileged. I don't know one way or the other right now. But, you know, again, if those were the questions that were asked, we can at least sink our teeth into the issues. I don't know who took this deposition, Palm Beach Reporting Service, Inc. EFTA00788286 176 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 and I am not here to criticize it. They may well have had reasons for asking questions in 2010 and 2013, respectively, that are no longer of any moment today. So I am not being critical. And I am sure there are good reasons to find out whether or not Mr. Edwards spoke to Mr. Rodriguez, or what Mr. Edwards' contact was, again, now with Ms. Villafana or the FBI agent. The joint prosecution agreement, I presume that it must have been important at that time. I don't see it as really important now, other than potentially as evidence to be used by Edwards. MR. BREWER: If he's going to use that as evidence, we should be able to inquire with regard to that evidence and do the discovery as to that point. THE COURT: Well, if that's what's going to be done, then that can be -- that may be a point -- I don't know if Mr. Scarola will ever get into that questioning with his own client or is claiming that that's in any way, shape or form part of his claim. Palm Beach Reporting Service, Inc. EFTA00788287 177 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, they pled it. THE COURT: Sorry? MR. BREWER: They pled it. THE COURT: They pled what? MR. BREWER: They pled everything that Mr. Edwards did was proper, ethical, and that it was in furtherance of the claims of his client to further their claims. That's what they are claiming. We should be allowed on the specific actions that he took in furtherance of his clients' claims to inquire whether those actions were in fact in furtherance of his client's claims or not, or was there some other motive that was involved in taking those actions. And you've pinpointed a couple of them. They're pretty highly suspicious. THE COURT: I'm not suggesting suspicious. MR. BREWER: I'm suggesting suspicion. I'm saying to you, you have pointed them out. THE COURT: Well, the only thing I'm saying is I'm trying to come up with something in terms of when looking at the Palm Beach Reporting Service, Inc. EFTA00788288 178 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 broad nature of discovery allowed in Florida -- as dictated by our appellate courts, including the supreme court -- of the broad nature distinction from I'm looking of allowable discovery and what may be admissible. at two points that have been made over the written documents and the arguments that have been made that could at least conceivably provide some fodder for cross-examining or examining Mr. Edwards. The problem, as I said, is there's very little of that that really went into these particular issues. Now, on page 13 there are questions concerning a meeting that he had with Mr. Rothstein -- or in Mr. Rothstein's office with Russell Adler. I apologize, but it's the way it was written and the way it was transcribed that was confusing. The question is -- verbatim -- quote, The one meeting that you had in Mr. Rothstein's office with Russell Adler and some unknown person on the phone, were you given any direction at that time that certain discovery should be done or certain Palm Beach Reporting Service, Inc. EFTA00788289 179 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tactics should used with regard to prosecuting the Epstein cases?" I believe that that's a question that can be asked. Now, the question that follows up now again, it may not be specifically followed up -- because there's no three dots to separate it -- but the pages appear to be different, one page later. The next question, What did -- What information did Mr. Rothstein send you that involved Mr. Epstein? And he was also -- there's also the same objection, same instruction. Mr. Scarola, what's your position on that question? MR. SCAROLA: Anything that went on within that firm in the absence of evidence that would demonstrate that the attorney-client privilege is not applicable because of crime-fraud exception -- THE COURT: This wouldn't be attorney-client privilege. This would be work product. MR. SCAROLA: Or the work-product Palm Beach Reporting Service, Inc. EFTA00788290 180 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 was not applicable because of a crime-fraud exception. THE COURT: What about Rothstein's continued admissions in the deposition that I read of his purpose -- essentially sole purpose -- was to engage in this Ponzi scheme; clearly was the head of this Ponzi scheme; clearly was the one who was manipulating these files by his own admission in order to profit by way of obfuscating the true nature of these files and inflating them creating a multi-million dollar -- tens of millions of dollars in some type of a false, fraudulent endeavor? The question reads what information did Rothstein send you that involved Epstein? I'm hard-pressed to believe that Rothstein in the admitted capacity that he testified -- he was not working on the Epstein case. He was not contributing to prosecution of the claims. He was essentially, by his own admission, manipulating these files as to gain his own pecuniary interest and to line his own pockets as a result of selling shares of Palm Beach Reporting Service, Inc. EFTA00788291 181 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 these cases to unwitting individuals, or maybe those who may have had their wits about them. I don't know. But why wouldn't the crime-fraud exception be appropriate and applicable here as it relates to anything that Rothstein may have said to Mr. Edwards? And again, he may not have said a thing. I don't know. But if there was anything said by Rothstein in the capacity that Rothstein held is essentially an admitted criminal at all times material to this analysis -- MR. SCAROLA: Nothing essential about it. THE COURT: Admitted criminal. Thank you, sir. I appreciate that. Why would anything under the guise of work product privilege be in any way affiliated with Mr. Rothstein, and why would it not at least be reasonably calculated to lead to the discovery admissible evidence as it pertains to Epstein's claims originally against Rothstein, Edwards, and to some degree, LM, to establish some indicia of probable cause? Palm Beach Reporting Service, Inc. EFTA00788292 182 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: If this were Mr. Rothstein standing before the court attempting to assert any privilege that is excepted to by crime-fraud activity, the answer would be there is no privilege. Crime-fraud exception applies. This is not Mr. Rothstein. This is Mr. Edwards. There is no evidence that Mr. Edwards participated in any crime or fraud. THE COURT: And I'm not suggesting he did. I want to make that clear. But what I am saying is it's not what Mr. Edwards said to Rothstein that's being questioned. It's what Rothstein said to Edwards, if anything. Again, I'm not suggesting he had anything to say. MR. SCAROLA: Quite frankly, I think the answer is nothing, but I don't know that either, as I stand here. THE COURT: Fair enough. And I appreciate that. I'm not suggesting there was anything said, and I don't want that to be a matter of record. My point is that a good faith Palm Beach Reporting Service, Inc. EFTA00788293 183 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work-product privilege protects the mental impressions of counsel and those whom he is working with in what I perceive to be, at least parenthetically, the legitimate prosecution or defense of a given case. MR. SCAROLA: We agree. THE COURT: And if Rothstein was engaged in discussions with Mr. Edwards, from the standpoint of what Rothstein said to Edwards, in conjunction with the testimony of Rothstein relative to his clearcut, unadulterated, admission that he was at the pinnacle of this Ponzi scheme that directly involved cases that he was handling -- strike that -- cases that were in his firm. And again, anecdotally we know of this inner sanctum. We know of this difficult-to-breach security system than he had that protected him, and I believe it was one secretary. We know of his unwillingness to share anything; that there was, by his testimony -- Rothstein, and by others a legitimate side to the business. But what Rothstein was perpetrating Palm Beach Reporting Service, Inc. EFTA00788294 184 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 here -- again, all times material to this analysis, including the time that we are talking about relative to the LM case -- was nothing more than a complete and entire fraud, and criminal activity unabated. I wonder why anything that Rothstein may have said -- so as to go back to the defense of the issue -- the element and also the defense to probable cause would not, at least at this point, reasonably be calculated to lead to the discovery of admissible evidence. MR. SCAROLA: Let me approach it from this perspective. THE COURT: We will take a break momentarily. MR. SCAROLA: First, I acknowledge that I don't know whether Rothstein said anything to Brad Edwards that would be of any relevance to anything under any circumstances. But, the issue before this Court in this case is whether Mr. Epstein had probable cause to believe that Brad Edwards was somehow a participant in the Ponzi scheme. Did he have reason to believe Palm Beach Reporting Service, Inc. EFTA00788295 185 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, even if mistaken belief. I'm sure Your Honor saw on the materials that were submitted to the Court that that question was directly posed to Mr. Epstein. What evidence do you have that Brad Edwards was a knowing participant in the Ponzi scheme? To which Mr. Epstein's response was, I refuse to answer on the grounds that it may tend to incriminate me. He refuses to give any evidence with regard to that matter, so how can he -- and we are getting into an area that I know the Court didn't want to deal with today, but it is directly relevant to the inquiry Your Honor is making. How can he attempt to suggest that he had a good faith reliance upon something that Rothstein said to Epstein in the privacy of this tightly -- that Rothstein said to Edwards in the protection of this highly guarded office? How could he possibly say that I relied upon that statement, that he couldn't have known about, that he didn't know about, and that he refuses to answer any questions about? Palm Beach Reporting Service, Inc. EFTA00788296 186 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: How does that differ, though, from a simple automobile accident case and the allegation of defense of a pre-existing condition, and that the subject accident not cause or approximately cause the current condition complained of by the plaintiff? Now, the defendant doesn't know all of the information at the time the lawsuit is brought to reasonably consider that -- let's say a 75-year-old person who is claiming neck and back injuries, and it's a preoperative procedure, no operation, no surgeries, they are entitled to know, though, all of background concerning this person's medical history, and at least as it relates to the neck and back; and any prior accidents; any prior injuries; any prior doctor visits; anything of that nature that would come into the fold. The allegations for the facts being stated, they are just that. They are allegations. Now the table has turned, because now it's Mr. Edwards bringing the claim against Mr. Epstein. Palm Beach Reporting Service, Inc. EFTA00788297 187 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But I agree that most of the inquiry has to begin when Mr. Epstein brought the suite against Edwards, et al. But at the same time, I don't think that he is necessarily and completely and entirely harnessed to that particular snapshot of information. And you can argue that to the jury. I have no problem with that. But in order to bolster his defenses to the malicious prosecution claim and to show that he had probable cause, I don't see that he should be completely and entirely restricted from engaging in substantive discovery to support whatever those allegations may be. So let's leave it at that. MR. SCAROLA: May I make one further comment in that regard, Your Honor? THE COURT: At the risk of making our court reporter mad, yes, sir. MR. SCAROLA: She is an extraordinarily tolerant young woman who I know will give me the benefit of just a moment's comment on that. THE COURT: Go right ahead. Palm Beach Reporting Service, Inc. EFTA00788298 188 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: There is a real concern that the testimony could be tailored to meet the discovery that is now attempting to be obtained. So while the Court -- and I will acknowledge appropriately -- considers that some wide latitude should be granted with regard to discovery, I respectfully suggest that Mr. Epstein should be obliged, if he intends to waive his Fifth Amendment Rights, to answer those questions first and not get the information and then be able to say, Oh, Yeah, I knew about that. That was part of the probable cause I relied upon when we asked him directly in discovery that precedes all of this, What did you know? When did you know it? And his response is, I refuse to answer on the basis of Fifth Amendment privilege. So if Your Honor is considering opening the door to these questions -- and quite frankly, we spent more time arguing over something that may not even exist than that it's worth -- but if Your Honor is considering compelling us to respond to Palm Beach Reporting Service, Inc. EFTA00788299 189 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 those questions, deal with the Fifth Amendment issues first so that we get Mr. Epstein on the record as to what he knew before we feed him what he would like to have known. THE COURT: Good point. Thank you. We will back on about 20 after 3, please. (A recess was had 3:10 p.m. - 3:20 p.m.) MR. GOLDBERGER: I need to raise a very last issue that just came up. You know, I may practice on the other side of the elevator most often, but what I just heard just amazed me. Mr. Scarola gets up here and says, depending on how the Court rules, I want Mr. Epstein to testify first if he's going to waive his Fifth Amendment privileges because he, quote, may tailor his testimony. Translated, he's suggesting that Mr. Epstein is somehow going to perjure himself. THE COURT: I don't think he's saying that. I think what he's saying is, if Mr. Epstein is not compelled to testify first, he may try to prove his case through the discovery provided by others. Palm Beach Reporting Service, Inc. EFTA00788300 190 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 there is a line of case law that guards against that proposition. In other words, the general theory. I am not quoting. It's my recollection, essentially, that discovery cannot be principally had so as to find out information that you didn't already know from the other side and build your case accordingly. MR. GOLDBERGER: I understand that. Mr. Epstein has clearly stated his grounds for bringing the lawsuit. It's a five-page affidavit that he filed in conjunction with his motion for summary judgment that sets forth what he was thinking and why he filed the lawsuit. THE COURT: I understand. After a while you kind of used to -- you get used to rhetoric. You get used to people posturing. Good lawyers often do their best to shed things or to state things in a light more favorable to their client, but I didn't take it that way. MR. GOLDBERGER: Okay. That's good. THE COURT: The way I took it was the fruits of Edwards' discovery should not be Palm Beach Reporting Service, Inc. EFTA00788301 191 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 groundwork of Mr. Epstein's claims. MR. GOLDBERGER: I agree with that. I just don't want there to be any suggestion on this record whatsoever that Mr. Epstein in any way would perjure his testimony. THE COURT: I didn't take it that way, and I didn't take it as suggested by Mr. Scarola in that fashion as well. MR. GOLDBERGER: Thank you. THE COURT: You're welcome. Now why don't we go ahead and -- let me hear from Ms. Haddad, because what I would like to know is -- I think the best way to handle this is to not so much focus on what was asked at a deposition, again, where I indicated that the timing of same, the dates of same would have been different than what may be now is really the core issues that need to be discovered. So why don't you present to me, if you can, what you believe the areas of inquiry will be, and let's see where we can forge and at least attempt to enter into some common ground, if possible. MS. HADDAD COLEMAN: Judge, I don't Palm Beach Reporting Service, Inc. EFTA00788302 192 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know that I'm fully prepared to go into great detail about that, because, again, it wasn't part of what I was anticipating for today. But I would say that the two broad areas about which deposition testimony should be compelled for Mr. Edwards would be, number one, the undisputed facts that we laid out in our motion for summary judgment because they are the facts that Mr. Epstein has stated twice under oath in his affidavit and in deposition testimony -- which, again, we will provide to the Court, contrary to Mr. Scarola's assertions -- that are the facts upon which he relied at the time he filed suit. Directly in response to that, Mr. Edwards has repeatedly asserted, I did everything right. I didn't do anything wrong and Mr. Epstein knows it. Great. Then tell us what you did that was right. Tell us why we were wrong. And again, Judge, it's what Mr. Epstein knew at the time. And Mr. Epstein has clearly and unequivocally not hidden the ball. He has laid out what he knew at the Palm Beach Reporting Service, Inc. EFTA00788303 193 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. And it's all a matter of public record. Conversely, Mr. Edwards is hiding behind every privilege he can think of to not answer questions about his dealings when he was a partner at RRA. And one of the issues -- the Court did point out two that are correct. But one of the third issues that probably should have stood out to the court -- if I had more time -- I would have prepared it for you -- is at the time in question, about a month before RRA imploded, Brad Edwards filed a motion before Judge Marra in the, I believe, Jane Doe case versus Epstein, asking that Mr. Epstein post a $14 million bond. No reason for this. There was no pleading. No responsive motion to which this would have been warranted in any way, shape or form. This motion delineated in great detail all of Mr. Epstein's net worth: airplanes, bank accounts, businesses, homes, things of that nature. And Judge Marra wrote an order basically striking it down, calling it frivolous. That was another motion that was Palm Beach Reporting Service, Inc. EFTA00788304 194 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 filed Mr. Edwards on behalf RRA, again, during the time when the boxes were in Mr. Rothstein's layer and during the time when he signed the document, he was the partner in charge of these cases. So if the Court is going to list for us issues about which we're allowed to depose Mr. Edwards about actions he took, I think everything we raised in our motion for summary judgment -- he hasn't answered any of those questions yet, Judge. So anything germane to our undisputed facts, the facts that Mr. Epstein has already said he was relying on at that time. And if Mr. Edwards defense is, I did everything right, I wasn't involved. I did nothing wrong, and Epstein know it, then Edwards should be held accountable to answer those questions. The second area, Judge, is about his damages. This isn't a case where, yes, he has to plead in excess of $15,000. I understand that. Damages are an actual element of this case. He has to prove he was damaged. Palm Beach Reporting Service, Inc. EFTA00788305 195 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 As they've been repeatedly saying since I've been sitting here, we're not sure what Epstein's damages were. I heard Mr. Scarola say Mr. Epstein wasn't a victim of the Ponzi scheme. But he was. The amount of attorney's fees he incurred by the abuse of process that occurred while these cases were prosecuted by RRA is tremendous, in addition to the other issues that were raised in federal court and in state court, pursuant to which he was called to defend these actions or put out fires. THE COURT: Just so the record is clear, I was talking about what damages he may have sustained as a result of Rothstein factoring these cases. That was my question. MS. HADDAD COLEMAN: And, Judge, our position all along has been the abuse of process committed by RRA, Mr. Rothstein, and possibly Mr. Edwards, that we believe at the time that he was involved did cause him damages, the factoring -- engaged in excessive discovery; putting out fires; Palm Beach Reporting Service, Inc. EFTA00788306 196 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subpoenas; things of that nature. So we do feel that Mr. Edwards -- because he's claiming damages and is seeking punitive damages and is not willing to accept stipulation of net worth from Mr. Epstein -- he clearly believes that he has some serious, serious damages in this case. So we feel that he should be required to answer discovery questions related to his financial damages and otherwise his mental -- I forget what he claimed them to be -- but they're all kind of delineated in our motion, Judge. So I think those are the two areas about which he should be, at a minium, required to answer deposition testimony. THE COURT: Okay, well, a couple things. I appreciate again, both sides' positions here. I have been trying to scan through these interrogatories and the answers that have been provided, and I think, like in any other case where damages are being sought, they have to be proven, and any future damages be proven with reasonable certainty, and the past damages Palm Beach Reporting Service, Inc. EFTA00788307 197 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 has to be proven as well. Let's look at the questions. Let's scroll down a little bit and see if we might be able to find a reasonable median so as to get this moving. MS. HADDAD COLEMAN: I'm sorry, Your Honor, what you are looking at. THE COURT: I'm looking at the unverified responses that were filed recently. MR. SCAROLA: As to which there's no motion pending presently, Your Honor. THE COURT: Well, what I was going to say is, we can do this by 8:45 or we can do this now. It was recently filed. I understand there may not be motion pending as far as these are concerned. I would like to get them done, because I am going to order that Mr. Edwards be redeposed. I am going to order that he may be questioned as it relates to the broad probable cause areas of inquiry that I have earlier dealt with. And I'm also going to order that he testify and be examined regarding the Palm Beach Reporting Service, Inc. EFTA00788308 198 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 damages that he allegedly sustained as a result of the malicious prosecution claim. So he would be required to be forthcoming. I thought that we may be able to save a little time if we go through these interrogatories and determine what may be appropriate and what may not be appropriate, because there may be areas that I believe are far too private and of that nature, so that I could save you the trouble of having to come back. But if there's a due process issue of notice, then I have no problem with waiting for another day. MR. SCAROLA: Your Honor, I am pleased to try to proceed as far as we can with the understanding that I haven't even had an opportunity to consult with my client about any motion to compel, because there is no motion to compel. But I agree we've got some time available. I would prefer not to waste that time. I would strongly prefer that we can resolve whatever issues need to be resolved, so that if there's further discovery to be Palm Beach Reporting Service, Inc. EFTA00788309 199 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 taken, it can be taken without delaying the trial. So let me see what I can do to try to address some of the issues that Your Honor has identified. You have said that Mr. Edwards is to be deposed with regard to the broad probable cause he had for the filing of his claims. And I assume you are referencing the lawsuits that he filed against Jeffrey Epstein on behalf of his clients; is that correct? THE COURT: What I'm talking about right now are the areas that have been identified. The filing of the federal suit that mirrored the state claim, the LM claim. The issues regarding what if any knowledge he may have had concerning the crimes committed by Mr. Rothstein and others, which I believe -- and I don't want to disparage anyone's name, but I believe Mr. Adler and the second name of Rothstein firm -- MS. HADDAD COLEMAN: Rosenthal (sic). THE COURT: -- Rosenthal were also prosecuted successfully, if I'm not mistaken, correct? Palm Beach Reporting Service, Inc. EFTA00788310 200 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 MS. HADDAD COLEMAN: Judge, I know Mr. Adler was prosecuted for a campaign fund issue, not for anything, I believe, directly related to the Ponzi scheme. Stuart Rosenfeldt -- THE COURT: Rosenfeldt. MS. HADDAD COLEMAN: -- I'm not sure the indictment for which he was prosecuted. THE COURT: Like I said, I don't want to say anything that is incorrect. But certainly as relates to this factoring issue and its relationship to the cases that were being prosecuted by Edwards at the time of those meetings that I discussed earlier with the New York investors and the attempt, allegedly, that involves Mr. Adler and Mr. Rothstein to manipulate those files, any knowledge he may have had in that regard, I believe that those areas are available for inquiry. MR. SCAROLA: May I ask one question to the Court? THE COURT: Sure. MR. SCAROLA: Any knowledge that Brad Edwards had regarding any impropriety that Palm Beach Reporting Service, Inc. EFTA00788311 201 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was going on within Rothstein, Rosenfeldt & Adler relating to any Ponzi scheme, those are areas that were the subjects of earlier deposition testimony. And also testimony of Mr. Edwards' affidavit. I have no problem in repeating answers that were already given to questions that were already asked, but I just want to point out the fact that those were areas as to which there was no objection. Mr. Edwards has testified clearly and unequivocally he knew nothing about any Ponzi scheme, he had no participation in any Ponzi scheme, he had no idea about any misuse of any of his files. THE COURT: Again, I don't want to suggest that that's my concern. What I am trying to accomplish by virtue of allowing the inquiry to these areas that I have mentioned is to allow Mr. Epstein to be able to defend himself as it relates to the element primarily proximate cause and malice, for that matter, as well. So both of those areas of inquiry have to be proven by the plaintiff now -- now Palm Beach Reporting Service, Inc. EFTA00788312 202 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plaintiff, formerly counter-plaintiff, but formerly defendant counter-plaintiff Edwards. They have to be proven. But at the same time, as I indicated earlier on a rather basic example an analogy that I used in BI context, Epstein has a right to discover those matters to fortify to some degree his allegations and to fortify his belief that these claims were taken at the time they were filed. Now, those areas, I'm going to allow. The other area is then damages. Now, as you've indicated and I appreciate your willingness to cooperate to the best of your ability without your clients being here and providing input. For the record, I am not trying to -- MR. BREWER: Excuse me, Your Honor. I hate to interrupt. I apologize. But we also were concerned with regards to the filing of that motion to present a bond or to -- $15 million bond. THE COURT: The $14 million bond issue, I don't have a problem with that either. You can get into that. That has to do with Palm Beach Reporting Service, Inc. EFTA00788313 203 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 federal case, as I recollect. Again, I am providing that broad scope of inquiry on that federal issue that ultimately led to Judge Marra dismissing that case that was not served on Mr. Epstein. MR. SCAROLA: May I try to get a little bit specific in that regard so that we avoid having to come back before Your Honor? I would anticipate asking questions, such as, What was your motivation in the filing of the federal lawsuit? What was the tactic that you were seeking to pursue in the filing of that claim? I would and will, for the record, raise an objection that that is a direct inquiry into the mental processes of Mr. Edwards. And I would like to know in advance whether knowing that that's the objection that will be raised, Your Honor is overruling the objection. THE COURT: I not overruling the objection. But I think the question can be crafted in another way. For example, I likely will allow a Palm Beach Reporting Service, Inc. EFTA00788314 204 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question such as, Can you point to any material difference between the case that was brought in state court versus the case that you brought in federal court? MR. SCAROLA: Again, what that question asks for is Mr. Edwards' legal analysis of the contents of those two claims. And again, I would object to that on the basis that that is attorney-work product. What one case says and what the other case says is apparent on the face of the claims, and Mr. Edwards ought not be obliged to provide his legal opinions, which are protected -- clearly protected mental impressions of a lawyer and are work product. So again, I'm trying -- I don't want to be back here raising objections that Your Honor has already considered and overruled that's the objection I would raise to the question Your Honor is proffering. THE COURT: Right. And what I'm saying is, right now I'm not going to rule on something that's not before me. I would need to see the context, as I said earlier, Palm Beach Reporting Service, Inc. EFTA00788315 205 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the deposition in totality. I would need to hear the other side's position as to the objections, and to determine then whether or not I believe that it would be appropriately objectionable. MR. SCAROLA: I understand that. The problem I face is I didn't want to raise objections that Your Honor already overruled. I now understand Your Honor is not overruling those objections. You want to hear them in the context of the question as phrased. THE COURT: Correct. And that's what I said earlier today, that while I recognize objections may be raised, I am going to allow at least the area of inquiry to be delved into. And if there's objections then I will deal with them. But again, it's with the understanding that the goose-versus-gander-type approach, and that is that in order deal with these issues head-on, there may be the necessity to rule on these cases -- rule on these matters that would not necessarily comport with the traditional attorney-client, Palm Beach Reporting Service, Inc. EFTA00788316 206 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work-product privileges that we would otherwise deal with. Take away attorney-client privilege. That's really not what I intended to say. What I intended to say is this is not the traditional work-product privilege, clearly. This is a different type of situation and a different type of analysis when we're now getting into issues of malicious prosecution. Because, again, if a factor in Epstein bringing the case against Edwards at all was what transpired in this federal lawsuit, then the objections that Mr. Edwards may make may not be beneficial to his position. In other words, he's going to have to make that strategic decision as to whether or not these objections are sufficient to be able to express his position. In other words, whether it's worth making these objections in order to be able to fully engage and discuss and explain what he may or may not have done. MR. SCAROLA: We recognize we have the same sword/shield problem that, at least at Palm Beach Reporting Service, Inc. EFTA00788317 207 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some stages of this litigation, confront Mr. Epstein. I understand those comments and appreciate them. I would only point out that to the extent that claims are made in this litigation about the abuse of process count or in the other claims about, quote, improper litigation tactics, those claims fail as a matter of law. The litigation privilege, as Your Honor is well aware, is a complete and absolute bar to an abuse of process claim. And it is a complete and absolute bar to any claim that relates to what occurred in the course of litigation as opposed to the filing of the litigation itself. And I suggest that that's going to be a very important distinction when Your Honor comes to ruling upon whether these lines of inquiry are relevant at all. Does it make any difference what Bradley Edwards' motive was, what his subjective thought processes were in filing a motion in the context of a pending case to require the posting of a bond if requiring the posting of a bond Palm Beach Reporting Service, Inc. EFTA00788318 208 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cannot possibly form the basis of a tort claim because it is protected by absolute immunity? THE COURT: Only to the extent that Epstein would have the ability to defend himself as it relates to the elements of malice or probable cause. MR. SCAROLA: Yes, sir. THE COURT: And that's where I am finding a conundrum, and you articulated it much better than I can. And the sword versus shield doctrine is a tough one here, because while I respect an attorney's ability to protect his or her mental impressions, strategies in ways of going about a case, we have to really drill down to what purpose does that privilege serve. We are not dealing with the direct, normal everyday scenario that we see plaintiff versus defendant and plaintiff takes photographs of a given site that would not be otherwise available to the defendant except through some type of hardship. We are not dealing with a one-on-one situation. Palm Beach Reporting Service, Inc. EFTA00788319 209 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We are dealing with a one-off, so to speak, and that is, the litigation itself has a purpose. The mental impressions of an attorney in the prosecution of that underlying claim certainly must be protected. And I'm not by any way, shape or form suggesting it shouldn't be. However, the area of inquiry that is triggered is not so much in that case -- really has nothing to do with this anymore. What it has to do with is whether or not that was part of a defense that is asserted by Epstein as it relates to his allege malice, expressed or implied, and whether or not it addresses the element of probable cause and his defense to that element. MR. SCAROLA: May I, at the risk of arguing against myself, articulate what I think the Court is saying, because I think I agree with that decision? While improper litigation tactics are absolutely privileged and cannot form the basis of an independent tort claim, engaging in improper litigation tactics may be circumstantial evidence that support Palm Beach Reporting Service, Inc. EFTA00788320 210 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 assertion that Brad Edwards knew that he was aiding in the Ponzi scheme. THE COURT: I don't even think it has to go that far. MR. SCAROLA: Then I withdraw my comment. THE COURT: We are saying this with a smile on our faces. I appreciate the bit of levity. More so what I'm saying is we don't even have to get that far. It really just goes to whether or not it is evidence. Does it tend to prove or disprove a material fact, therefore giving it relevancy to the area of inquiry of the elements of a malicious prosecution claim that must be proven by Mr. Edwards that is equally defensible by Mr. Epstein, and is equally defensible in the eyes of the law? I don't know what the facts are, but the eyes of the law say he's entitle to his defense. And this area of inquiry as it relates to this federal litigation the $14 million bond, the limited information that he may or may not have had regarding the whereabouts Palm Beach Reporting Service, Inc. EFTA00788321 211 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the files during the operative period of Adler's and Rothstein's dealings, allegedly, as it relates to Adler, clearly as it relates to Rothstein by his own testimony as to appease these investors and to further his own Ponzi scheme. Again, this is by no means suggesting that Mr. Edwards had anything to do with this. And believe me, I am not sitting here -- because I don't know anything about the investigation, other than what I've read in the newspapers. And I try to stay away from them as much as I could, particularly when I remember still to this day -- and I will share this everyone because I think you should know. I remember Mr. Edwards coming in after this thing completely fell apart -- I knew nothing about -- this is the Ponzi situation with Rothstein when they raided offices he and William Berger came in and explained this to me -- when I was handling those other cases -- and that they would have to switch and go to another firm, whatever the case may be. So I remember that. Palm Beach Reporting Service, Inc. EFTA00788322 212 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 again, not that it has anything to do with the issue. I just thought about it now, that they came in that day. But the bottom line is it really comes down to allowing Epstein to be able to defend himself and defend the allegations, even though there was a summary judgment on the part of -- sorry. There was voluntary dismissal on the eve of the summary judgment. He has the ability, in my view, to be able to defend himself on the elements of malice and proximate cause. So those are the reasons why I'm allowing that testimony to be had, subject to objection. I understand and I am willing to accept that. Now, on the issue of damages, I would like to get into that briefly, if we could, and find out whether or not we can get to some common ground. You said that there was one that was answered? MR. SCAROLA: I can tell Your Honor that -- first of all, let me describe the nature of the economic damage claim. Palm Beach Reporting Service, Inc. EFTA00788323 213 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: Sure. MR. SCAROLA: We are not claiming lost wages or lost earnings. What we are claiming is the lost value of the time that Mr. Edwards was obliged to devote to the defense of the maliciously brought claims. In that regard, we have provided to the defense contemporaneous time records reflecting the amount of time that Mr. Edwards was obliged to devote to the defense of those alleged-to-be-maliciously- brought claims against him. That is the extent of the economic damage claim. We believe that we have fulfilled any obligation that we have to provide discovery with regard to that portion of the economic aspect of the case by providing those contemporaneous time records. THE COURT: Hold on for just a minute. Let's take them one step at a time. Were you aware until today that Mr. Edwards was not making a claim for loss of earnings or loss of the capacity to earn? MR. BREWER: No. No, because we talked about injury. They are claiming injury to Palm Beach Reporting Service, Inc. EFTA00788324 214 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 his reputation. THE COURT: Monetary damage. That wasn't my question. Hold on. Take it one step at a time. So we have gotten somewhere. Now we know there's not, for the record, a claim for lost earnings or loss of earning capacity. All right, so let's start there. MR. SCAROLA: Could I just qualify that in one respect, Your Honor? If we're talking about the loss of the value of Mr. Epstein's time -- excuse me Mr. Edwards' time, that could be characterized as a loss of earning capacity, because if he's devoting time to the defense of this case, he could not be devoting it to some other legal pursuit. However, that time could have been taken away from this family. It could have been taken away from vacation. It could have been taken away from a lot of things. We are not alleging that he lost business or business opportunity, but he did lose the value of the time that he was obliged to Palm Beach Reporting Service, Inc. EFTA00788325 215 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 devote to the defense of this case based upon contemporaneous business records. THE COURT: Okay, so while there's not a formal claim for lost wages or loss of earning capacity, there's a claim for the lost value of time that Mr. Edwards had to spend on the defense of this case? MR. BREWER: I'm sorry. Is that the only financial or economic damage claim? THE COURT: We will go back to Mr. Scarola. MR. SCAROLA: Yes. THE COURT: Okay. So there's no medical issues, no psychiatric bills or testimony that's expected, no psychological, except for what I presume to be some type of mental anguish claim he would have. MR. SCAROLA: He will talk about mental and emotional injury, distress, fear of retribution. And those things are -- those things are special damages that were laid out in the complaint. THE COURT: All right. So there are no other economic damages that I am aware of as related -- Palm Beach Reporting Service, Inc. EFTA00788326 216 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. BREWER: He's claiming injury to his reputation as an economic damage. THE COURT: Well, I'm not certain it is. MR. BREWER: I think it is, Your Honor. How is it going to be expressed? THE COURT: That's a good question. MR. BREWER: It's going to be expressed in dollars. THE COURT: I understand that. So is a recommended amount for pain and suffering in a generic BI claim. But, again, we have to look at this from the standpoint of lost -- you said lost -- MR. SCAROLA: Injury to reputation. THE COURT: Loss of injury to his reputation. MR. SCAROLA: Yes, sir. Quite frankly, this is analogous to a defamation per se claim. That is, if someone is attacked with regard to the performance of their professional responsibilities, of their capacity to perform in an ethical and honest manner, Palm Beach Reporting Service, Inc. EFTA00788327 217 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then damages are presumed, without the necessity for the specific loss. THE COURT: I am not going to get in Mr. Scarola's thought process, which is a precise example of what I was trying to delineate earlier -- MR. SCAROLA: And clearly I am harassed. THE COURT: -- between the direct claim and now what I call the one-off claim, without meaning any disrespect to anyone here. But it was just a way of trying to describe the difference. Now, again, I'm not telling you what you can ask specifically. But I'm saying now that there is an area of inquiry that's opened up here with regard to both his claim of loss of value of time and the issue of loss of reputation -- or the tarnishing of his reputation. Those are questions that can be gotten into with Mr. Edwards. MR. SCAROLA: And have. We understand that that's an appropriate area of inquiry to the extent that it has not already been the subject of inquiry. Palm Beach Reporting Service, Inc. EFTA00788328 218 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 WITNESS: Again, let the record be clear. I am exercising my discretion, which I understand to be relatively broad, certainly not without at least some harnessing, but certainly to the extent that I'm exercising what I perceive to be under the case law a broad discretion in the area of discovery. The exercise of this discretion is consistent with the fact that the cases have been filed in 2009. We are now in 2017. There was a lengthy appellate process that transpired. The case went all the way up to the supreme court on the very issue that is going to be tried. And counsel for both sides have worked very hard in preparing the motions that would be heard today and that still need -- some still need to be heard. I look forward to sufficient time in order to that. But the reason for the allowance of Mr. Edwards to be redeposed and essentially to start again is because my review of the deposition excerpts are such that a cogent deposition was not taken. I'm not blaming Palm Beach Reporting Service, Inc. EFTA00788329 219 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anyone for that. But certainly even just the passage of time in doing this, again, for as long as I have is significant from the standpoint of what is relevant today versus what may have been relevant in 2010-2013, respectfully. And the exercise of that discretion is to assure ourselves that only that area of inquiry that is relevant today, now that the Epstein claim has been voluntarily dismissed, there really are no other pending live claims, except for Mr. Edwards' malicious prosecution claim against Epstein is a significant reason for my allowance of this deposition to go forward. So anything else on damages that are going to be needed to be looked into? MS. HADDAD COLEMAN: Yes, Judge. I would like to speak to the two areas about which Mr. Scarola just stated were the damages being claimed by Mr. Edwards. It is of great concern that he's seeking punitive damages in this case. Clearly, my client has the right to explore what the monetary damages suffered as Palm Beach Reporting Service, Inc. EFTA00788330 220 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 alleged by Mr. Edwards are, as well as his potential exposure. That's the best way to evaluate a case, and is something to which I speak about with my client. However, with respect to the first instance of damages that Mr. Scarola mentioned -- the cost to defending against Epstein's case, the time away from his practice or his family or whomever should be answered in these allegations -- he has hired Mr. Scarola from the outset. What I'm saying is, when we ask questions about his time records or his work on cases or his legal practice or his vacations during the relevant time period and we get an objection, I want to know what that means. What are we allowed to ask him about that? And, Judge, with respect to the injury to his reputation -- Mr. Scarola just said his defamation, per se -- well, that's part of the litigation privilege. You don't get damages for defamation, per se. It all occurs during the course of litigation. So what does injury to his reputation mean? How do we quantify that? By his Palm Beach Reporting Service, Inc. EFTA00788331 221 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work? THE COURT: These sound like motions, potentially, for partial summary judgment. All I'm trying to do here today is trying to reach at least some reasonable confines of a deposition that probably needs to be taken in the next 30 days. I am going to authorize it be taken within the next 30 days. And I'm giving you a broad scope of where I believe the testimony should be focused. I am not trying to give anybody hints. I'm not trying to give anybody help. I'm not trying to direct anything other than to exercise the discretion that I've already indicated on the record to ensure that we are going to least have what I hope to be a deposition that is going to focus on the areas that need to be focused on based upon what is currently before the court, and that is, the singular count of malicious prosecution by Edwards against Epstein, and the general areas that I have seen by way of the significant amount of materials that I have read and the arguments that you have Palm Beach Reporting Service, Inc. EFTA00788332 222 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been kind enough to present to me on both sides that I perceive to be areas of appropriate inquiry. Whether it's met with objection or not, well, I will deal with that at another time, okay? But I can't presuppose anything that is not before me at this stage of the proceeding. And really, it's against all known rules for me to rule on something that is not before the Court. Again, part of the process of being the trial judge is trying to work out at least some meaningful areas of compromise without being a mediator, but trying to at least move this case forward, as it is my obligation under the rules of judicial administration. And that's what I'm trying to accomplish today in large part. So I don't want to get into right now, well, what specifically can we ask? That may be limited, that may be not appropriate, that may not be legally an appropriate part of the damages. If it's not a legally appropriate part of the damages then you can raise it by way Palm Beach Reporting Service, Inc. EFTA00788333 223 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of a motion for partial summary judgment, motion for pleading -- judgment on a pleading, something along those lines. But I am not here to make those types of decisions now. So let's give it a shot. Let's see where you guys can end up. And essentially what I am doing as well, for the reasons that are stated on the record, I'm denying Epstein's motion to overrule the objections and compel Mr. Edwards to answer questions, except for those that I have specifically stated today on the record. The vast majority of these questions that have been brought to my attention -- again, I recognize that I may be taking some out of context -- but what I would respectfully suggest are complete and entirely irrelevant from a discovery perspective. And I have today on several occasions differentiated between reasonable bounds of discovery recognizing the broad nature of discovery versus admissibility for finding, nevertheless, that these matters touch on Palm Beach Reporting Service, Inc. EFTA00788334 224 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 areas that are of no relevance to what we are dealing with in this singular claim. MR. SCAROLA: Your Honor, with a view towards anticipating procedural issues and going back to my concern about wanting to complete Mr. Epstein's deposition or discovery before we are providing him additional information, there are three things that I want to mention. Mr. Epstein has listed two of his prior attorneys on his witness list. And I have been attempting now for many days through many email communications to find out whether it is Mr. Epstein's intension to waive attorney-client privilege in an attempt to rely upon some kind of advice of counsel defense. THE COURT: Would you tell me who those attorneys are, please? MR. SCAROLA: Mr. Roy Black is one, and I think Mr. Goldberger was another. MR. GOLDBERGER: Yes, Mr. Goldberger is one of them. Mr. Critton is one and Mr. Akerman. MR. SCAROLA: Mr. Critton and Palm Beach Reporting Service, Inc. EFTA00788335 225 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. Akerman. I'm sorry. There's a bunch of them. THE COURT: Who are the ones that are actually listed? MS. HADDAD COLEMAN: On the witness list, Judge, are Mr. Critton, Mr. Black -- and the reason -- because you made us answer why we were listing people in the summary of the testimony -- says that they will be called in rebuttal, if necessary, to testify as to the facts known to Mr. Epstein at time he filed suit, because Mr. Critton filed the suit. MR. SCAROLA: And that listing of witnesses and descriptions of their testimony clearly indicates an intent to waive attorney-client privilege. Obviously, neither Mr. Critton nor Mr. Black nor any other of Mr. Epstein's lawyers can testify about what Mr. Epstein knew, except based upon what Mr. Epstein told them. And an advice of counsel defense fails as a matter of law unless a full and complete disclosure is made to the lawyers. Palm Beach Reporting Service, Inc. EFTA00788336 226 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 Mr. Epstein cannot selectively waive attorney-client privilege. He can't say I'm going to waive attorney-client privilege with regard to what I told Robert Critton and Roy Black, but I'm not going to let you inquire as to what I was telling all my other lawyers at the same time if the issue is what did Mr. Epstein know. So I have asked very directly in at least five email communications -- and I would be happy to provide you with copies of each of them -- please tell me whether there is an intent to waive attorney-client privilege, because if there is, I need to take all of these depositions. And if there is not, I don't need to take any of them, because they will not be able to testify, unless there's a waiver of attorney-client privilege. I filed notices to produce from non-parties for the files of all of these attorneys, to which there has been an objection. I have noticed their depositions, and I have served them with subpoenas to be deposed. Palm Beach Reporting Service, Inc. EFTA00788337 227 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 At the time that I served them with those subpoenas, I sent letters out to all of them copying opposing counsel, saying I am setting these because we are dealing with a trial that is set already on the trial calendar and I need to take this discovery. If the dates are inconvenient for you, or if there's not going to be a waiver of attorney-client privilege, please let me know. And nobody is responding to those direct inquiries. I do not know, as I stand here today, whether attorney-client privilege is going to be asserted or it's going to be waived. THE COURT: It seems to be a bit difficult to assert attorney-client privilege when two attorneys are listed as witnesses. MR. SCAROLA: That's exactly my point, Your Honor. And that's why I have asked for that clarification. I don't know how they can call these witnesses. And the only thing I have gotten from Ms. Haddad Coleman is these are listed as rebuttal witnesses. Well, I don't care whether they are Palm Beach Reporting Service, Inc. EFTA00788338 228 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rebuttal witnesses or witnesses that you are calling for any other purpose. If you intend to rely on their testimony for purposes as described in your disclosure to the court, that cannot be done without a waiver. Is that what you are telling me you are doing? And they refuse to answer that question. So I would ask that the Court pose that question to them right now and that we get an answer on the record as to whether that is going to happen so I know whether this is discovery that I need to proceed with. THE COURT: Binger has long held, essentially, that there's really no difference from the discovery standpoint between rebuttal witnesses or rebuttal evidence and direct evidence of witnesses in chief. Mr. Brewer, your position? MR. BREWER: I have been dying to speak, Your Honor. THE COURT: Go right ahead. MR. BREWER: First of all, advice of counsel is a defense. It is an affirmative Palm Beach Reporting Service, Inc. EFTA00788339 229 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defense. And it is an affirmative defense which has not been raised by Mr. Epstein. Period. End of story. MR. SCAROLA: Then are we removing those two witnesses from the witness list and the description that they are going to testify as to Mr. Epstein's knowledge at the time of the filing? MR. BREWER: I didn't interrupt him at any time. THE COURT: That's fair. Go ahead Mr. Brewer. MR. BREWER: With regard to the two witnesses listed, it is true that they are listed as rebuttal witnesses. They can testify about things that are not attorney-client privileged. In other words, they can testify just say Mr. Edwards decides to -- just to take some hypothetical -- in his case in chief decides to say, You know what, I wasn't involved with regard to that federal case that was filed. That had an electronic signature on it. It wasn't me. I didn't do it. Scott Rothstein did it. They would Palm Beach Reporting Service, Inc. EFTA00788340 230 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 knowledge of what transpired in the case that they could give rebuttal testimony on without waiving any kind of attorney-client privilege. Now, we get to a conundrum that, again, is being posed -- and this is going to come up before you, Your Honor, on the motion for stay -- and that conundrum is, Mr. Epstein is -- because of that Crime-Victims' Right Act is still potentially in jeopardy for prosecution, because they have purposely -- and Mr. Edwards and an attorney by the name of Cassel, I believe, have prosecuted that. It is still going on. And they control at least their side of that litigation. And it is because of that that Mr. Epstein must continually, unfortunately, plead the Fifth. And so we have got Mr. Edwards controlling both sides, essentially, that we are now looking at. And I'm bringing that up -- but it's going to be brought up in front of Your Honor because it's a conundrum. I cannot, as I sit here today -- because this issue -- while there have been Palm Beach Reporting Service, Inc. EFTA00788341 231 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 emails back and forth between counsel as to whether or not these people are going to be listed or not, I can't tell you, because I have not had an opportunity to speak with Mr. Epstein about these issues. And, in fact, these issues just came up. And there's no motion before the Court. They have not been briefed in any shape, form or fashion. And therefore, we really are not willing to respond today from the standpoint of, Yes, we are going to blanket-waive attorney-client privilege. I can't make that assertion to the Court, or that we are not going to one way or the other. MR. SCAROLA: Your Honor, respectfully, the issues were directly raised in a motion that we filed to strike Mr. Epstein's affidavit and to preclude presentation of any testimony or evidence as to which discovery was foreclosed on the assertion of the Fifth Amendment privilege and by assertion of the attorney-client privilege. So that motion was timely filed. That motion is before the Court. Although, Your Honor has decided not yet to hear it, that Palm Beach Reporting Service, Inc. EFTA00788342 232 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 was filed. And one of the reasons it was filed is because these two witnesses were listed and the description was provided of their testimony. And it wasn't rebuttal in case Bradley Edwards decided to disclaim knowledge of the federal case. The listing was knowledge with regard to what Mr. Epstein knew and relied upon at the time of the filing. That is an advice of counsel defense which has never been raised. It is an affirmative defense that is required to be asserted. They didn't assert it. They've listed these two witnesses and described testimony that is only relevant with regard to an advice of counsel defense. And when I tried to get an answer as to whether that's what they're trying to go do indirectly, they ignore me. They refuse to answer those questions. I don't want to depose Roy Black or any of the other five lawyers that I have set for deposition if there's going to be no waiver of attorney-client privilege, because I will waste my time. They will Palm Beach Reporting Service, Inc. EFTA00788343 233 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appropriately assert attorney-client privilege. And I don't need to do that. We have got other productive things that we need to do. I don't need to redeposed Mr. Epstein in advance of Mr. Edwards, being if, Mr. Epstein is going to continue to assert his Fifth Amendment privilege. THE COURT: Mr. Brewer has already indicated that will be the case. MR. SCAROLA: If that's the case, that's fine. I don't need to take his deposition again. He's asserted the Fifth Amendment privilege consistently, broadly, and foreclosed discovery with regard to the matters that are the central focus of this case. And we are fine with that record as it stands. THE COURT: So what are you asking me to do today on this issue? MR. SCAROLA: I have gotten, I think, what I needed, and that was an assertion that there will be no advice of counsel defense raised and no waiver of attorney-client privilege. Palm Beach Reporting Service, Inc. EFTA00788344 234 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: At this point in time, as I understand it, Mr. Epstein continues to assert and will continue to assert his Fifth Amendment privilege based upon the Victims' Right case that's currently pending in federal court. MR. SCAROLA: And attorney-client privilege. THE COURT: If I didn't say that, I meant to. MR. SCAROLA: You didn't. And I just want to be sure that that's our mutual understanding of where we stand procedurally right now. THE COURT: I listed privileges, and whatever is associated privilege -- I didn't say attorney-client privilege. Presumably that's also going to be -- MR. BREWER: You are asking me to look into a crystal ball right there, Your Honor. I can say that -- THE COURT: Join the club. MR. BREWER: I can say that because of the incendiary case, he has to pled the Firth to certain questions which deal with Palm Beach Reporting Service, Inc. EFTA00788345 235 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 purported criminal activity. THE COURT: Well, my understanding is that anything of a substantive nature it gets into, any of the areas that have already been previously inquired into would be privileged as it relates to the Fifth Amendment and the assorted other amendments that he has stood upon will continue to asserted. And presumably the attorney-client privilege also? MR. GOLDBERGER: Subject to consultation with our client, obviously, Judge. THE COURT: be But it sounds like it will be. I am going to accept that as a yes. MR. SCAROLA: Thank you, sir. And the one last procedural matter that I want to raise is is one of the three clients that Bradley Edwards represented. One of the three cases that was settled. And -- at the request of opposing counsel, and with the agreement that Mr. Epstein would pay for her transportation -- traveled from Australia to New York in order to be available to be Palm Beach Reporting Service, Inc. EFTA00788346 236 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 deposed on Friday. She is here. She is ready to be deposed. THE WITNESS: Here in Florida or New York? MR. SCAROLA: She's in New York. The agreement was that she would be deposed in New York. That's where they wanted her to be deposed. She flew to New York, is there and ready to be deposed on Friday. We are ready to defend against that deposition on Friday. Our position will be that if they don't choose to take that deposition now in light of those circumstances, they will have foregone any opportunity to depose who has already given sworn testimony on multiple occasions. THE COURT: I don't know who is, so -- MR. SCAROLA: One of the three -- THE COURT: You said that. One of the three people Mr. Edwards represented. MS. HADDAD COLEMAN: Judge, I would like to speak to that. First of all, Mr. Edwards did not represent Palm Beach Reporting Service, Inc. EFTA00788347 237 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 at the time in any case against Mr. Epstein. That isn't true. Second point MR. SCAROLA: I apologize. That is a mistake. Yes. MS. HADDAD COLEMAN: Second, she's never given any testimony in this case, whether in Mr. Epstein's case in chief against Mr. Edwards or conversely. Number three, we were told when they listed Ms. Roberts as a witness, to coordinate with Mr. Edwards. I was then told to coordinate with an attorney in New York. Basically the long and short of it is I spent two months trying to coordinate dates with a woman who lives in Australia, two different attorneys. The date was set; she was coming to New York. Then I got an email she had liposuction, has to wear a girdle, and cannot fly from Australia, as she needs assistance to put on her girdle on the airplane. So then we say we are not going to pay for a companion to fly to New York, and we Palm Beach Reporting Service, Inc. EFTA00788348 238 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't want the liability if she has a blood clot. Australia is far away. So we get a note from her doctor, not to say that she can fly, but that she needs a companion. Then, last week I got -- I'm sorry two weeks ago -- maybe it was last week -- I got an email from yet another attorney telling me that Ms. Roberts will only be produced to testify if we get an order that all of her testimony is confidential and it's under seal. Why am I going to waste the time and money to present her if all of her testimony is going to be confidential and under seal, especially if Mr. Edwards plans on calling her to testify? So I explained in an email that we are not okay with that so we are not going to depose her. We will set it off until such time that we can work it out before the court. THE COURT: At whose expense is she flown? MS. HADDAD COLEMAN: Ours, Judge. And then -- MR. SCAROLA: I'm sorry. I don't think Palm Beach Reporting Service, Inc. EFTA00788349 239 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 paid yet. MS. HADDAD COLEMAN: Well, we had agreed to -- MR. SCAROLA: It's at her expense as of right now, but they agreed that they would pay for her expenses. And when they objected to confidentiality of the transcript until it was released by order of the court, within less than two hours that request was withdrawn and we were told -- they were told that we are ready to proceed with the deposition without confidentiality, to which we got a response, I'm sorry, we are no longer available. MS. HADDAD COLEMAN: No, Judge, What happen was, the lawyer responded in a lawyer-like fashion, "I understand your position." There was no affirmative statement whatsoever that they will withdraw the confidentiality or anything of that nature. And we wrote back clearly and unequivocally we are putting this off until we can get it before the court. Do not come to this deposition. It is canceled. Done. That was the end of the conversation, Judge. Palm Beach Reporting Service, Inc. EFTA00788350 240 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 was no expressed waiver of confidentiality. It said, I understand your position. THE COURT: Who set the deposition? MS. HADDAD COLEMAN: It was never noticed, Judge. There's no notice of deposition right now. MR. SCAROLA: She was appearing voluntarily at the defense's request on the date and at the place chosen by the defense. MS. HADDAD COLEMAN: And, Judge, we told them that it wasn't going forward. So if she's in New York, it's not pursuant to the subpoena, nor are we in agreement at this point, because we said it wasn't happening. THE COURT: I hate to see these things happen, because it erodes my faith and confidence in the bar. And anytime that's done, it's a sad day. I don't like to see things occur like this, especially where there's somebody who came from Australia to New York with the expressed purpose of being deposed, and is now no longer being subject to deposition. Palm Beach Reporting Service, Inc. EFTA00788351 241 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 With that said, however, the problem is that, if there was no notice of taking a deposition, if there was no subpoena for her presence and she showed up voluntarily, as a non-party she's entitled to reimbursement of her expenses. But I am not certain that I really can do anything, and I am not going to do anything at this stage to compel her deposition testimony absent some type of iron-clad agreement that I can look at that says that she's going to be deposed on Friday in New York City. If it was equivocal, if it was with conditions, if it was not set forth and cast in stone, then I'm reluctant to do anything other than to say that, again, I'm sorry. These things happen. I'm sorry that we can't move forward. But without the notice and/or subpoena of the witness, without anything other than this back and forth of conditions attributable to the taking of the deposition and nothing, as I said, cast in stone, and without authority, as far as the Court is Palm Beach Reporting Service, Inc. EFTA00788352 242 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 concerned to do anything to compel the deposition on Friday. MR. SCAROLA: Thank you, sir. MR. GOLDBERGER: Your Honor, pursuant to your request earlier this morning, I've given you a -- provided you a copy of the motion. I'm sure Mr. Scarola has many copies, but I provided him another copy. THE COURT: I will just keep this. What I'm going to do is, on motions, such as discovery motions -- since I have gotten so much background today -- if there are motions that can be handled reasonably at 8:45, I would ask that you go ahead set them at that time. MR. SCAROLA: One per day? THE COURT: One per day, if you don't mind. I am not trying to be facetious. I have to be consistent in the way I treat everybody. And since all are subject to that one-per-day rule -- for good reason. The motion calendars have become very, very heavy. There are many who try to set case matters that are really not appropriate for the motion calendar. Palm Beach Reporting Service, Inc. EFTA00788353 243 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 typically allow it to be done because I do read the materials in advance. So if I have it, I can usually digest it to where I can cut down on the time that's necessary to spend to argue and not keep everybody else. MR. SCAROLA: My review of those additional motions, Your Honor, indicates that we probably need to deal directly with the Fifth Amendment privilege issues before we proceed with any further discovery discussions, including the one motion that we will definitely not be able to handle on an 8:45, and that is the motion in limine, the omnibus motion in limine. THE COURT: So you are working right now, Ms. Haddad, on what? MS. HADDAD COLEMAN COLEMAN: Judge, that's what I was going to ask you, on my response to Mr. Scarola's motion to strike the affidavit, even though you said that was moot. THE COURT: What I meant to say was the affidavit and being stricken in conjunction with my consideration of the motion for summary judgment made that aspect of it Palm Beach Reporting Service, Inc. EFTA00788354 244 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 moot. So I should have been a little more clear. But what I was trying to get to is how much time you think you're going to need to get your response in. And then I have offered Mr. Scarola the opportunity to file a reply to that. MS. HADDAD COLEMAN: This is -- just to be specific, this is to his motion to strike the affidavit in the Fifth Amendment motion? THE COURT: Off the record for a second. (A discussion was held off the record.) THE COURT: Back on the record. MS. HADDAD COLEMAN COLEMAN: Judge, I believe I can have a response -- today is Tuesday? THE COURT: Yes. MS. HADDAD COLEMAN: Judge, if I could have until next Friday to get it filed, I believe I can fully brief the issue. Is that acceptable? THE COURT: How much time after that Mr. Scarola, would you like to get your reply? I would suspect a week would be Palm Beach Reporting Service, Inc. EFTA00788355 245 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enough time. MR. SCAROLA: I am just checking dates, Your Honor. I'm sorry. THE COURT: What I'm conceptualizing is trying to set the hearing sometime between, like, the 23rd of October and the 3rd of November. MR. SCAROLA: That part is a problem. Between the 20th of October and the 3rd of November, I'm in Africa. I'm sorry, was the suggestion that the reply be filed by the 13th of October? THE COURT: Yes. Not the -- MR. SCAROLA: I'm sorry. The response. THE COURT: The response. MR. SCAROLA: The response be filed by the 13th of October. We can have our reply filed by the 20th of October, Your Honor. THE COURT: If that's okay, because, again, the timing was solely to try to fit you in and give you a reasonable amount of time between the 23rd of October the 3rd of November so that I can keep this moving. But if you're away -- I knowing having all the lawyers here, your vacations are Palm Beach Reporting Service, Inc. EFTA00788356 246 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 well deserved. I am not going to compromise that by any means. MR. SCAROLA: I will actually be representing a herd of elephants, sir. It's a business trip. THE COURT: Off the record. (A discussion was held off the record.) MR. SCAROLA: I don't have any problem with the 20th. We will get it in by the 20th. I would prefer to be here for the hearing. THE COURT: That's why I'm saying I'm certainly not going to compromise your vacation to require you to be here. I don't know what your schedule looks like during the earlier part of November, other than I'm sure you're going to be in a jam with others that are going to be demanding your time. I will see what I have available right now. I don't know -- it's going to be the end -- nearing the end of the docket that we are now on, so that usually means a busy time. But what we will do is this. What I Palm Beach Reporting Service, Inc. EFTA00788357 247 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 would like you to do is come in during the week of October 16th at an 8:45 and give me a better idea of availability. I will have -- once you notify me -- and give us a heads-up at my office, you can have your assistant, Mr. Scarola, contact Denise and give her a heads-up when you're coming in so that we can also prepare and give you some type of time. You get back, you said, on the 3rd? MR. SCAROLA: Yes, sir. THE COURT: So we can give you some time as well. We can start contemplating what's available during MR. SCAROLA: Your Honor, I can make it work towards the end of that following week, the week of November 6th, Wednesday, Thursday or Friday. I can move things around to be available to Your Honor if those times work for the Court. MS. HADDAD COLEMAN: I am not in town. I leave Thursday the 4th of November. I have a notice of unavailability filed, Judge. I leave -- I am gone that Thursday and Friday. But I can come Wednesday if Palm Beach Reporting Service, Inc. EFTA00788358 248 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 works. THE COURT: Well, you said the 3rd and 4th. That's Friday and Saturday. Mr. Scarola, I think, is suggesting the 8th, 9th and 10th. MR. GOLDBERGER: The 10th is a court holiday, Your Honor. It's Veteran's Day. MS. HADDAD COLEMAN: Let me look at my book. Maybe we can set the date now. Do you mind if I have my phone out, Judge? THE COURT: I don't have November 10th as a holiday. MR. GOLDBERGER: My assistant told me it's a holiday. THE COURT: You're right. I guess because Veteran's Day is actually the 11th, the observation is the 10th, so that's correct. The calendar doesn't show a holiday, but my official court calendar does, so I apologize. So the 9th and the 10th, I guess -- I'm sorry, the 8th or the 9th is what we are looking at. I don't know where I am. I Palm Beach Reporting Service, Inc. EFTA00788359 249 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 no idea. I am just throwing that out there. MR. SCAROLA: Should we just contact your JA about coordinating something, Your Honor? THE COURT: Well, again what I would like you to do is come in at an 8:45 in a couple of weeks, let's say on October 19th or something -- the 18th or 19th. And that way I can give you a better idea of availability once I have that opportunity to do so. Denise is back, but she had -- most of her day was jury duty. MR. SCAROLA: May we also discuss the motion -- the setting of the motion for temporary stay of proceedings? MR. GOLDBERGER: That's what I was just going to bring up. That's going to be e-filed this evening. MR. SCAROLA: We've actually been handed a copy, and we've been told that it has been filed. We have just received it, but we now have it. THE COURT: Let me look at the 13th of Palm Beach Reporting Service, Inc. EFTA00788360 250 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 October -- we mentioned that date originally for some other reason today. That may be time that I may have. I know there's a one-day hearing or trial. I think it's on that day. And we may have already filled it, because I've been using it quite a bit lately. MR. GOLDBERGER: Judge, you're not going to believe this, but in my new role as a traffic hearing officer, I am the bencher on duty on the afternoon of the 13th. I am available in the morning. THE COURT: Well, let me see what's available. But I know that when we had calendar call I set aside a day, in an abundance of caution, for a case. But again, I know that I have offered it to others, so it might be taken. MR. GOLDBERGER: I know everyone is trying to get out of here, but just a last matter. You ordered us to take Mr. Edwards' depo within 30 days. We now know that Mr. Scarola is going to be chasing elephant herds and prides of lions in Africa for the first portion of that. That kinds of Palm Beach Reporting Service, Inc. EFTA00788361 251 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shortens our window of opportunity of doing that deposition, unless he has someone else that can sit in for the depo. MR. SCAROLA: I probably do. MR. GOLDBERGER: Great. Okay. THE COURT: Again, I want the record to be clear that, in a case of this type and magnitude -- usually I hold consistent no matter what the case -- but certainly I'm not seeking to compromise anyone's vacation time. They're well deserved. I don't want to put anybody in any form of awkward position simply to accommodate the Court's deadlines. MR. GOLDBERGER: We will see what we can work out with Mr. Scarola's office on that. Thank you, Judge. THE COURT: I am going to keep these materials for now. But what I am going to ask you to do is, anytime there's a resetting of a matter, would you kindly forward to me a courtesy copy and not depend on the amount of stuff that I have? Okay, thank you. Palm Beach Reporting Service, Inc. EFTA00788362 252 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 above proceedings were concluded at 4:43 p.m.) COURT CERTIFICATE STATE OF FLORIDA ) : SS COUNTY OF PALM BEACH ) I, SONJA D. HALL, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true record of my stenographic notes. Dated this 9th day of October 2017. SONJA D. HALL Palm Beach Reporting Service, Inc. EFTA00788363