DS9 Document EFTA00792811

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 UNCERTIFIED TRANSCRIPT DISCLAIMER IN THE MATTER OF EPSTEIN v. EDWARDS DRAFT ONLY !!!! NOT PROOFREAD EFTA00792811 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 following transcript(s) of proceedings, or any portion thereof, in the above-entitled matter, taken on November 29th, 2017, is being delivered UNEDITED and UNCERTIFIED by the official court reporter at the request of Kara Rockenbach, Esquire. The purchaser agrees not to disclose this uncertified and unedited transcript in any form (written or electronic) To anyone who has no connection to this case. This is an unofficial transcript, which should NOT be relied upon for purposes of verbatim citation of testimony. This transcript has not been checked, proofread or corrected. It is a draft transcript, NOT a certified transcript. As such, it may contain computer-generated mistranslations of stenotype code or electronic transmission errors, resulting in inaccurate or nonsensical word combinations, or untranslated stenotype symbols which cannot be deciphered by non-stenotypists. Corrections will be made in the preparation of the certified transcript, resulting in differences in content, page and line numbers, punctuation and formatting. This realtime uncertified and unedited transcript contains no appearance page, certificate page, index or certification. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792812 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: We are here on Epstein versus Rothstein and Edwards. The two applicable parties being dealt with -- have a seat, please. Thank you. -- being Mr. Epstein and Mr. Edwards, and the counterclaim brought by Mr. Edwards against Epstein relative to a malicious prosecution claim that has been brought. We will confine our arguments to that particular matter. And we will keep in mind the following: Direct all of your arguments to the bench. Please do not speak to each other. Please stay away from any pejorative, unnecessary comments as it relates, in particular, to the counter-defendant. I will remind you that the Court order that I executed relative to the continuous of the trial on 14 November this year, ordered that no replies be provided to the Court absent court order. You have violated my order. The replies are being ignored. I do not expect that to be repeated, absent sanctions. Is that understood? Both sides? Ms. Rockenbach? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792813 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. ROCKENBACH: Yes, Your Honor. THE COURT: Mr. Scarola? MR. SCAROLA: Yes, Your Honor. THE COURT: If I need them, I will ask for them. I have several bankers boxes' worth of materials here. I don't need anything further unless I request it. I am well-advised in the case, as you may or may not know. I think I announced this earlier, for whatever it's worth, I handled the underlying cases in division AB. So I have had a long history in dealing with the matters that surround the instant action. Let's start with the counter-defendant's revised omnibus motion in limine. MR. LINK: May it please the Court. THE COURT: Yes, sir. Thank you. MR. LINK: Thank you, Your Honor. We know that we have provided you with a forest, maybe two forests, and we really appreciate your spending the time to go through it. If you think back to the motion that we filed to continue -- and we appreciate Your DRAFT ONLY !!!! NOT PROOFREAD EFTA00792814 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 Honor giving us time to understand what this case is about. The reason we need this time and we need your time today is because we are not sure what case we're trying. And we have to understand what case we're trying, Judge, in order to determine what evidence should come in. So with Your Honor's permission, I would like to just show you what I've put up here, so -- THE COURT: Do you have a hard copy of your PowerPoint? MR. LINK: Yes, sir. THE COURT: If I may have it. MS. ROCKENBACH: May I approach, Your Honor? I shared this with Mr. Scarola last evening. THE COURT: Thanks. MR. LINK: Your Honor, before we get to the blowup and the screen, I would like to just take a minute and talk to you about what we think the evidentiary issues we have raised in our motion that have to be resolved. The first is -- and I know Your Honor DRAFT ONLY !!!! NOT PROOFREAD EFTA00792815 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 know -- you have told us this over and over -- you know the elements of malicious prosecution, and that you know them well, and they're well-settled. But when you read the papers you will see there is a disagreement about what those elements are. And so I just want to take a moment to go through them and find out -- what we really need to understand before we can try this case to a jury is this: what facts are in dispute that a jury has to decide. That's our struggle. So, Your Honor, the malicious prosecution, element one, the commencement of a proceeding, that is not an issue in this case. Element two. Was it filed by the present defendant -- the counter-defendant. Not an issue in this case. Item three. The bona fide termination in favor of the plaintiff. That is an issue in this case. That takes me to item two for one moment on my board, Your Honor, which is burden of proof. The counter-plaintiffs DRAFT ONLY !!!! NOT PROOFREAD EFTA00792816 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 suggest in their papers that once they prove the underlying claims by Mr. Edwards' three plaintiffs that were settled in 2010, that they have met enough to go forward and skip by the bona fide termination. The reason the bona fide termination is important is that that is the one area in the burden of proof -- the one area that shifts to us as -- THE COURT: If I'm not mistaken, are we talking about bona fide termination of the Epstein action brought by Epstein versus Rothstein and Edwards? MR. LINK: Yes. THE COURT: So why are we dealing with the underlying claims of the bona fide termination issue? MR. LINK: I don't know why we are, except that is part of the papers that we are dealing with. THE COURT: They are part of the papers, as I understand it, so as to establish a nexus between the reason why Mr. Epstein brought this claim in the first place against Rothstein and Edwards, and to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792817 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 try to determine the rationale that Mr. Epstein had to bring this case in the first place, which is a question that the jury is going to have, which is a question that the Court has, and what was the reason behind bringing this case. Was it one of vengeance? Was it one of hatred? Was it one of -- MR. LINK: Malicious. THE COURT: Malicious. Let me get to the point. Was it one of feeling that he was taking -- that the part of those whose investments were had by Rothstein as a result of that massive Ponzi scheme -- as he indicates in his deposition -- he felt that these people were taken advantage of as a result of Rothstein's misdeeds? I don't know what the reason was, and I'm sure the jury is going to ask what the reasons were. But there is going to be some introduction, albeit it tempered -- clearly tempered -- MR. LINK: Yes, sir. THE COURT: And Ms. Rockenbach I believe she was the signatory to the motion -- acknowledges that some of that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792818 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 information is going to be in. There is no way we're going to be able to sanitize the case to that extent. MR. LINK: We wouldn't ask the Court to do that. THE COURT: So that's what I'm trying to understand. Why are we going there when it comes to bona fide termination? MR. LINK: The reason is that I want to make sure that we are all on the same page about whose burden of proof in the case, because that will make a difference about the evidence that needs to come in. THE COURT: I don't think there is any issue -- I don't believe Mr. Scarola is taking issue that initially the burden of proof is with the counter-plaintiff Edwards as to the determination or the showing that there was a bona fide termination of the case in his client's favor -- this case, meaning Epstein versus Rothstein and Edwards, and specifically Rothstein versus Edwards. Is that fair, Mr. Scarola? MR. SCAROLA: It's fair, Your Honor, that we acknowledge that we have the burden DRAFT ONLY !!!! NOT PROOFREAD EFTA00792819 10 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 proof with regard to every element. It is also our position that the issue as to whether the underlying claim was bona fiably terminated in favor of Bradley Edwards is an issue of law for the Court. There are no disputed -- Mr. Edwards is present, yes. There are no disputed issues of fact with regard to what happened, and therefore, the Court will need to make the legal determination as to whether that constitutes a bona fide termination. And we believe that that is an issue that has been resolved through the appellate process as well. THE COURT: Up to the point where there's a belief that the issue has been resolved through the appellate process as well, I agree with Mr. Scarola's position. At this point, in my view, ultimately it becomes potentially a legal issue. If the facts are clear and there's no factual dispute, then it becomes purely a legal decision as to whether or not there's been bona fide termination. MR. LINK: We agree 100 percent, Judge. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792820 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 100 percent. THE COURT: I don't want to deviate -- MR. LINK: I know. So I'm going to go to the next piece, which is the key, which is the absence of probable cause. And the absence of probable cause focuses here -- the absence of probable cause -- and this is what Your Honor was just talking about -- focuses here. December 7th, 2009. That's when Mr. Epstein brought his claim against Rothstein, Mr. Rothstein's firm and Mr. Edwards. THE COURT: Did he bring it against Rothstein's firm? I only have Rothstein individually -- MR. SCAROLA: Rothstein, individually and Bradley Edwards, individually. MR. LINK: My apologies. THE COURT: That statement is retracked. It's Rothstein individually and Edwards, individually. Mr. Scarola concurred and Mr. Link has now concurred. MR. SCAROLA: And L.M., which I think is of some significance also. THE COURT: Was she brought in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792821 12 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 originally? MR. SCAROLA: Yes. MR. LINK: She was, Judge. Here is our view of what we have to do when we look at the evidence we are going to show you -- the exhibit list, the testimony to come in -- is to focus on what the jury is going to have to decide. Again, I'm not sure what the facts are in dispute, but it's here. The only information that makes a difference is what Epstein -- what Epstein looked at; what he considered; the inferences he drew from that information; and whether when you take the totality of that information, Your Honor, he had a reasonable basis to bring a civil proceeding against Mr. Edwards. I don't think there is any dispute. I have read the Court's transcript where the Court has said -- the case against Mr. Rothstein, I understand that. I don't think anybody is disputing that. The question is was there sufficient -- THE COURT: Hold on. Hold on a minute. Let's not take my comments out of context. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792822 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Whether or not there was ever any issues that Mr. Epstein had viably against either Rothstein, Edwards or L.M. are still, as far as the Court is concerned, unanswered. MR. LINK: Remember we have a default against Mr. Rothstein. THE COURT: That's a different issue. MR. LINK: I understand your point, Judge. THE COURT: I don't want my comments to be taken out of context. MR. LINK: Fair enough. THE COURT: A default is different than a court indicating some type of understanding as to Mr. Epstein's cause of action against Rothstein in this particular case. Because, as I said, the jury will question and the Court continues to question why Mr. Epstein brought this case in the first place. MR. LINK: Fair enough. Thank you for the clarification. THE COURT: And the reason why that's important is because the counter-plaintiff has argued that circumstantially -- and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792823 14 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 based upon, in large part, invocation of the Fifth Amendment by Mr. Epstein, they are going to need to prove that or disprove that potentially through the Fifth Amendment issues that we are going to be discussing. Because while Mr. Epstein may have his own motivation, circumstantially it is going to be up to the plaintiff to prove that motivation was not, in fact, in good faith. And I'm using good faith not as a term -- not as a legal term, but more of a term of art. MR. LINK: I understand that. THE COURT: So, it brings us to the point that we need to get to. So I am with you so far in terms of where you're going. And you're leading me through this. I appreciate it very much. But it does get us now to this really critical issue of, well, again, there's this huge question that's being asked by -- going to be asked by the finder of fact and the trier of the law, and that is, how does the counter-plaintiff prove its case when Mr. Epstein has answered selected questions? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792824 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I was -- I am now paraphrasing Mr. Epstein's answers in large part. I found out that Rothstein was factoring these cases. I found out that these investors were being taken advantage of. Taken advantage of through the forging of an order -- forging of an order that purported to have the signature of Judge Marra -- a tremendously well-respected jurist in this community, now taken senior status. I, meaning Mr. Epstein, was not only concerned about Rothstein doing what he did, but also I had suspicions that Mr. Edwards was involved in this process, because there were some articles that discussed the query could Rothstein have done this alone, and implicated at least the cases -- not to my knowledge Mr. Edwards -- but the cases that Mr. Edwards was serving as lead counsel. Some before this particular court in division AB back in 2009 and that period of time -- perhaps just around that period of time. So there's going to be a large question in the trier-of-facts' mind and remains in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792825 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Court's mind. How was Mr. Epstein damaged by what transpired from the standpoint of Rothstein, or what may have transpired from his own mind as it relates to Mr. Edwards? That's going to be a huge question, and remains a huge question. What was Epstein doing at that time, meaning, why did he file this lawsuit? What was his damages? Why was he even doing this in the first place? That's going to create an issue. And the reason I bring it up is solely to get into the argument that's going to be raised by the counter-plaintiff Edwards. And that is how do we prove this where Epstein chooses to answer only certain questions regarding his motivation, i.e., malice, and probable cause? But it doesn't answer questions germane to his mindset that, okay, there were these factored cases by Rothstein. He's paying a severe price for what he did. The millionaire investors who got involved in this Ponzi scheme have clearly been damaged and restitution has been paid, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792826 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to my understanding, to the extent that those assets of Rothstein's and those who were otherwise implicated paid what they paid. But how is Mr. Epstein damaged, and what was his motivation -- other than altruism, other than the questions that were asked by Mr. Scarola, which he didn't answer -- that could have been referencing a myriad of things: vengeance, anger, hostility. But they have that ability -- in my respectful view, in reading these materials -- to be able to raise those issues and perhaps through the Fifth Amendment Avenue. MR. LINK: Maybe, Your Honor. THE COURT: We need to concentrate on that. And we need to not only look at -- what I'm trying to say is, through Ms. Rockenbach's excellent written presentation -- MR. LINK: I helped a little bit, Judge. THE COURT: Actually, Mr. Link signed it. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792827 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: There you. I took credit for it all, Your Honor. THE COURT: My apologies. MR. LINK: It was a little bit of me. THE COURT: We get in trouble when we assume. Irrespective of that, Mr. Link signed it. So you can tell I'm more concentrated on the body of work than who necessarily executed it. But what I am trying to say is, what I believe respectfully is being done here is it's a one-sided argument. Now, I agree that you have to zealously represent your client and take his side, and I have no problem with that. But what I'm also suggesting is, at the same time, there has to be some consideration and some concession that they have a viable -- I won't say viable claim -- but they have viable arguments to support what they are trying to accomplish. And the means to do that is largely hamstrung by Mr. Epstein's refusal to answer questions. Go ahead. MR. LINK: Thank you, sir. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792828 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Those are exactly the issues we have. And there's one thing, Your Honor, I think that I would ask you to consider. This is very important. And I will tell you that if you walk through these elements, this element right here -- this is the key -- the absence of probable cause does not take into consideration anybody's motive, their anger, their malice, their state of mind or anything else other than -- other than -- and we will get to malicious -- you are dead-on -- but probable cause is an objective standard. If the facts are not in dispute, it's an objective standard to be determined by this Court. That's what the Florida Supreme Court has told us. So, what's important -- what's important is the counter-plaintiff doesn't challenge that this information was available. They don't challenge that the information, when read, it says Rothstein was involved in a Ponzi scheme. It says Mr. Epstein's three cases were being used to lure investors and information about them was fabricated. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792829 20 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 So there's not a dispute about that. The question is this. The question is, did Mr. Epstein have some reason to doubt or not believe the information he was reading. Because even though probable cause, Your Honor, is an objective standard, if I know what I'm reading is false, then I haven't really in good faith relied on it. But it doesn't matter. The case law says you cannot establish probable cause or the lack of it by the most actual malice known to man. I can hate this gentleman. I can want to bury this gentleman. I can want to run him out of business. But if I have objective probable cause -- THE COURT: And you are saying, as a matter of law, you are suggesting to me that newspaper articles -- which are the bulk of the reliance that Mr. Epstein is suggesting -- is sufficient to establish probable cause? MR. LINK: Yes, sir, I am. THE COURT: We are really not there yet because -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792830 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: I know we're not. THE COURT: -- this isn't a motion for summary judgment. MR. LINK: It's not. But I wanted to answer the Court's question. I think it's really important, Judge, as we go forward, that we differentiate the element of probable cause and the element of malice. Because you are exactly right. When you get to item five, malice, what's his intent to hurt Mr. Edwards. That is absolutely relevant for the jury's determination. No question. Okay. It is. But it is not relevant to whether there was a lack of probable cause. And that's a balance that we have here because -- THE COURT: What's not relevant in the absence of probable cause? Are you talking about malice? MR. LINK: Malice. Intent. We will show you cases, Your Honor, where it says if you have probable cause and you have malice, there's no claim for malicious prosecution. You only look at malice once you've established probable cause. You can't use DRAFT ONLY !!!! NOT PROOFREAD EFTA00792831 22 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 malice to establish probable cause. You can, on the other hand, use probable cause to establish malice. THE COURT: I understand. MR. LINK: That makes sense? THE COURT: I understand you completely. MR. LINK: The reason that's important is because if you combine -- if you say, What's in his mind? How is he trying to hurt this guy? When he's reviewing the Razorback complaint, the U.S. Attorney's statement, and the newspapers articles that are out there, then you are combining malice and probable cause. So, that's what we have to avoid. It's really critical, and here is why. By the way, I want for the Court to know I really appreciate the hard work that Mr. Edwards' team has put in. They did a lot of writing. We did a lot of writing. We have crystalized the issues for this Court's determination. So one of the things that Mr. Edwards tells us in his response to our motion in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792832 23 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 limine, he wants to tell us how he's going to try this case. And here is what he says. "Edwards starts by proving the truth of the claims he brought on behalf of his three clients." That evidence, Your Honor, if this case hadn't settled, would absolutely have been relevant to that trial, without a question. Every -- I shouldn't say every -- many of the questions that were asked of Mr. Epstein that he took the Fifth to very well could have been relevant to this lawsuit, okay? But the truth of the allegations that they were making has nothing to do with what Mr. Epstein reviewed in 2009 before he brought the suit. There's nothing that's in their mind or that happened to them that can have influenced Mr. Epstein when he was reading the material. THE COURT: So what you're suggesting, though, Mr. Link, is that there could never be a successful plaintiff in a malicious prosecution case. MR. LINK: No, sir. I'm not suggesting DRAFT ONLY !!!! NOT PROOFREAD EFTA00792833 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that at all. I will give you an example. What if this lawsuit was filed and there were two articles that existed that said that Mr. Edwards had nothing to do with the Ponzi scheme. And Mr. Epstein, in looking at the information that was available, took that information -- or he knew Mr. Edwards wasn't involved at all in any way -- and I'm not telling you that Mr. Edwards was. I am saying based on the information at that time -- THE COURT: Where was that information, by the way, that suggests Mr. Edwards had involvement? MR. LINK: The information that suggests that he had involvement is this. MS. ROCKENBACH: Your Honor, may I approach? I have a copy that might be better for the Court. I shared this with Mr. Scarola yesterday. MR. LINK: Your Honor asked a great question. It is without a doubt nothing in the press or the U.S. Attorney's office or anywhere else that comes out before Mr. Rothstein goes down that connects DRAFT ONLY !!!! NOT PROOFREAD EFTA00792834 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 directly Mr. Edwards to the Ponzi scheme. It does not. So what we have to then look at is this information. So you have as your backdrop -- put yourself in Mr. Epstein's shoes for a minute. You have as a backdrop your reading that the three cases that you have are being used to solicit investors, and you're being told that you have already offered a $30 million settlement, which was untrue. That you've already agreed to pay $200 million, which was untrue. That there were 50 other claimants out there at the Rothstein firm, which were untrue. And you read all of that, and then you start thinking about what's happened in the litigation against you. In the litigation against you, you start to see things that are different from when Mr. Edwards was a sole practitioner. THE COURT: Freeze that phrase for a moment. MR. LINK: Yes, sir. THE COURT: When you think about the litigation that was brought against you -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792835 26 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 when you are saying what Mr. Edwards brought against Mr. Epstein, correct? MR. LINK: Yes, sir. THE COURT: Very well. MR. LINK: Yes, sir. That's what I'm talking about. THE COURT: I want to make sure that that is what you're saying. MR. LINK: We're on the same page. Edwards' clients versus Mr. Epstein. And you look at the time period that Mr. Edwards is at Rothstein's -- this is really the question. I think it's a legal question. The question is, was there sufficient smoke for you to think there could be fire? Was there sufficient information that you could draw a reasonable inference from that would allow you to bring a civil claim? And here is what we see. We see many different things that happened. So, for example, all of a sudden you have Mr. Edwards and his team saying they want to depose Donald Trump, Bill Clinton. And there wasn't any testimony from the three folks that Mr. Edwards represented DRAFT ONLY !!!! NOT PROOFREAD EFTA00792836 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that they had any contact with Mr. Clinton or Mr. Trump, or any of the other folks that they said they wanted to depose. The three folks that Mr. Edwards represented never said they were on one of Mr. Epstein's planes, yet they spent 12 hours deposing Mr. Epstein's pilot and didn't ask a single question about Mr. Edwards' clients. He had a state court case filed on behalf of L.M. He then files a 234-page federal court complaint with 100-and-some counts that he never serves. He then files a motion for fraudulent transfer in the federal case saying Mr. Epstein is fraudulently transferring assets, and lists in there all these assets he has. And Judge Marra denies it and says this was brought without any evidence whatsoever. So if you look at these things that happened, and you now have them in the context of, wait a minute, I just read that Rothstein was telling folks that these cases were worth $500 million, and Mr. Epstein has DRAFT ONLY !!!! NOT PROOFREAD EFTA00792837 28 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 already offered $200 million. And that's not enough. We are going to get more. If you are Mr. Epstein, you start thinking, Well, was all of this stuff being done to generate information to show the investors in the Ponzi scheme? Then we know that the flight logs that came from the pilots, that had nothing to do with the three plaintiffs that Mr. Edwards used were used by Rothstein to show investors. THE COURT: But couldn't that same information, Mr. Link, serve the counter-plaintiff as well as it might serve Mr. Epstein, which creates a potentially classic jury question? And that is, that all of these things that were done -- the inconveniencing of his pilots, the inconveniencing of his high-level friends, the implications of these high-level friends -- all of these things that were done to anger Mr. Epstein at or around the time, if my memory serves, when these cases were being settled -- doesn't that serve them just as well to create an issue of probable cause as it does your client to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792838 29 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 say, Well, all of these things were done? And it then gets us back to what I earlier asked, and that is, even if that's taken as true, even if Rothstein was pumping these cases up and claiming to these investors that it was then publicly known through primarily the press, media was swarming -- as they should have been -- over this absolute criminal act, the likes of which, from an economic standpoint, from a private individual, perhaps has still never been seen before, other than Mr. Madoff in New York. But the point I'm trying to make is, it still gets me back to that same question. Yeah, Mr. Epstein may have been angry, he may have been concerned about his friends, the high-level people that he associated with, and how this could drag him down as well as them. Certainly a bona fide concern, perhaps. But then it gets to the question, yeah, with all of that, it still gets me to my original question and what the jury is going to be asking, more importantly, how was DRAFT ONLY !!!! NOT PROOFREAD EFTA00792839 30 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. Epstein damaged as a result of this activity? MR. LINK: May I answer that question? But then I have to weave back, because you gave me something I have got to talk about. THE COURT: Sure. MR. LINK: The damage that he felt -- now, let's keep in mind what case we're trying today -- or will be trying -- which is whether there was probable cause to go forward. THE COURT: Against Mr. Edwards? MR. LINK: Against Mr. Edwards. We are not trying the case against Mr. Edwards. We don't have to prove who would have won that case. So I'm going to get back to that in a sec. What he thought his damages were at the time, his real dollar damages is that he was spending money paying lawyers to defend what was happening during this Rothstein period. And so if you connect the dots and say, okay -- you said it better than I did, Judge. Rothstein is doing these criminal activities, which included using my name, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792840 31 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 three legitimate lawsuits -- THE COURT: Who is my? MR. LINK: Mr. Epstein. THE COURT: Okay. MR. LINK: I keep trying to make you Mr. Epstein for my example. It's the only way it works for me. If you're Mr. Epstein and you see -- Judge, you see what's in the press and how your -- I want to make this clear. We have never challenged when Mr. Edwards filed them that he didn't have a good faith, legitimate basis to do so back in 2008. That's not what this case is about. But in 2009, if you're Mr. Epstein and you see all of this information and you look at what's happening here and you say, Have I spent legal fees, paid my lawyers in order to have to defend activity that was really designed not to benefit the three plaintiffs, but to let Rothstein take it and show investors? And we know, as a matter of fact, Judge, that Rothstein did it. He used bankers boxes from the Epstein cases. He DRAFT ONLY !!!! NOT PROOFREAD EFTA00792841 32 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 used flight manifests from the Epstein cases. So he actually used the information that was provided to him by Mr. Edwards to show investors. This is going to answer your question. This is key. I think I remember your question. This is key, if I remember your question. You said what if Mr. Edwards had a legitimate purpose? I believe Mr. Edwards can get on the stand and persuade you, Judge, he had a reasonable basis for doing everything he did. THE COURT: I didn't ask that question. MR. LINK: Well, you said what if he had a legitimate basis? What he was doing was trying to benefit the three folks. THE COURT: No. What I said was, couldn't that information that you just indicated to me that forms the basis for Mr. Epstein allegedly bringing this suit, could that not be -- could that not be utilized by Mr. Edwards to submit to the fact that -- submit the fact that the reason why Epstein brought this suit in the first place was one of trying to get back at DRAFT ONLY !!!! NOT PROOFREAD EFTA00792842 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Edwards for inconveniencing his friends, for dragging those friends -- high-level friends into the process, for inconveniencing his pilots? All of these things that I brought out. That was the point that I made. MR. LINK: What element of the claim is that for? What element? That's malice. It's not probable cause. What Mr. Edwards thought, what he did, why he did it, has nothing to do with probable cause. It may have, Your Honor, a lot to do with malice. THE COURT: I think it has a great deal to do with probable cause, quite frankly. I think it's a mixed bag, so to speak, when you get to probable cause and malice. I agree with you that probable cause has to be proven before malice. But I think that there are -- certainly, in a case like this, which is an extremely unusual and complex matter that there are lead-overs, if you will, as it relates to probable cause and the malice elements. And I don't think it can be disputed here. This is not like the simple cases that we read in Florida Jurisprudence that deal with malicious DRAFT ONLY !!!! NOT PROOFREAD EFTA00792843 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prosecution the more simple concrete-type of cases that sets one plaintiff against one defendant. This is different. And I think that the issue of malice and probable cause are going to be somewhat congealed and somewhat of a lead-over from probable cause to malice. Not vice versa. I understand the parameters legally in that regard. MR. LINK: I agree with everything you just said except -- without incurring the wrath of the Court -- I have to dispute the first part you said because I don't believe, Your Honor, that the law is, what's in Mr. Edwards' mind -- what's in Mr. Epstein's mind about his reasons for bringing the case, have anything to do with probable cause. I think they have everything to do with a malice. And the law is very clear. You can't use malice to demonstrate probable cause. So if you can't use malice, what difference does it make how much Mr. Epstein may have hated Mr. Edwards and wanted to do him harm? MR. SCAROLA: I thought that you were DRAFT ONLY !!!! NOT PROOFREAD EFTA00792844 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pausing, and I wanted to raise a procedural question. If you are pausing -- MR. LINK: No problem. I never know when I'm pausing either. MR. SCAROLA: I have the same problem. Your Honor, I'm a little bit confused about the direction that that argument is taking, because I thought we were arguing a motion in limine to exclude evidence. And once there's a concession that the evidence is relevant to malice, even if we accept -- and I don't -- that it's not relevant to probable cause, it's relevant and it comes in. So I suggest that, since we have had an on-the-record concession of the relevance of the evidence, that part of the argument is over. THE COURT: Well I think Mr. Link -- I am giving him latitude, because I interrupted him to ask these questions that really needed to be answered from my standpoint. And as I look at these cases that are going to trial, I also try to put myself, not in either parties' shoes, but DRAFT ONLY !!!! NOT PROOFREAD EFTA00792845 36 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 certainly in juries' shoes when it comes to questions that they're going to have, and that really needs to be answered, because it helps me to narrow the issues as well. So I appreciate your courtesies in that respect. MR. LINK: My pleasure, Your Honor. THE COURT: Let's go ahead -- and if we could, let's get to the core issues that we're dealing with today and see where we are, because Mr. Scarola also makes a good point. I mean, a lot of this material that seems to be a matter of your motion when it comes to excluding this testimony or this evidence, it's essentially been conceded that most of this evidence is going to be relevant. MR. LINK: I didn't say that. I want to be very clear. I did not say that the evidence that he wants to submit or the questions he asked or the exhibits that he listed should come in on malice. What I said to the court is that Mr. Epstein's state of mind and how much he would have disliked Mr. Edwards or wanted to hurt him would be relevant to malice. That's very DRAFT ONLY !!!! NOT PROOFREAD EFTA00792846 37 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 different than asking the question about do you have a preference for minor children. THE COURT: So if we can, move now to issues of evidence that is being sought to be limited in terms of its introduction to the jury. MR. LINK: Yes, Your Honor. My partner Ms. Rockenbach will handle that. And, Your Honor, just so the Court's aware, Ms. Rockenbach has a professionalism meeting at Mr. Scarola's office that starts at noon. Do you mind breaking at 11:45? THE COURT: That's fine. I have a court luncheon, as well, with my colleagues down in the judicial dining room at noon, so that's not a problem. MS. ROCKENBACH: Your Honor, I would like to take the first issue in the omnibus -- revised omnibus motion in limine. But before we talk about Fifth Amendment, I just want cite one case to Your Honor before we leave this arena of probable cause. When I was reviewing the case law in preparation for this hearing, I chuckled to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792847 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think that the Florida Supreme Court in 1926 called this an ancient action, malicious prosecution. But it is that very case that answers a point that Your Honor was just discussing. I'm talking about the Tatum Brothers case. And it says in Tatum Brothers -- THE COURT: Do you have a tab number for me? MS. ROCKENBACH: The tab number is -- I don't know that actually. I might be able to get that. THE COURT: If it's in your binder, I can probably find it. You did a good job with your -- MS. ROCKENBACH: The index. THE COURT: -- index. Yeah. I don't have a Tatum Brothers by that first name. MS. ROCKENBACH: I apologize, Your Honor. It's at 92 Florida 278, and it's published in 1926. The court said it is well established that want of probable cause cannot be inferred from malice, however great such malice may be, even the most express malice. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792848 39 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 So before we leave that arena, that case back in 1926 said that you can't go backwards. You can't find malice then infer probable cause. THE COURT: I understand. I am just making a point that, in this set of unusual facts, it's not necessarily a clear-cut distinction that can be drawn. But again, sometimes facts will create these types of issues and they will be different than the 1926 set of facts. But go ahead. MS. ROCRENBACH: This is true. So, Your Honor, the first issue about the Fifth Amendment, I want to be clear that with regard to probable cause, my client has an original complaint that was filed against Mr. Edwards in December of 2009. He obviously didn't raise any Fifth Amendment with regard to any allegations that he filed in public court. He also filed two affidavits. Did not raise any Fifth Amendments with regard to the statements and facts that he alleged in those affidavits, one in 2013; and then the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792849 40 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 most recent, 2013. There's a pending motion to strike the 2017 set for these pending motion hearings. There was never any type of attack on the 2013 affidavit and they are substantially the same. The third issue about substantive testimony that my client gave that goes to the probable cause issue were the two depositions in which Mr. Scarola deposed Mr. Epstein. And that first one was March 17, 2010 -- and it's in the court file -- it was approximately three hours. And it's important, Your Honor, just if the Court would indulge me to read a few answers, because the point here is -- I should have started with this. If I may use the easel. So really there were two categories of questions that were asked of my client by Mr. Scarola. Some pertain to Fifth Amendment, which he raised, and some pertain to the malicious prosecution action. My client substantively answered in that March 17, 2010 deposition -- under the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792850 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 column of malicious prosecution -- page 19, Mr. Scarola asked, "Your complaint in this action" -- he's referring to the malicious prosecution action -- "alleges that L.M. made claims for damages out of proportion to alleged damages. What does that mean?" "It means what it says." Mr. Scarola: "I don't understand it. Explain it to me." Mr. Epstein substantively answered questions related to his probable cause for instituting the civil proceeding of malicious prosecution when -- "I believe that as part of the scheme to defraud investors in South Florida out of millions of dollars, claims of outrageous sums of money were made on behalf of alleged victims across the board, and the only way, in fact, Scott Rothstein sits in jail. And what I have read in the paper, claims that I settled cases for $200 million, which is totally not true. She has made claims of serious sums of money, which is outrageous." He answers the questions, "Have you settled claims?" "Yes, I have." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792851 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 of the same deposition. My client substantively answers the probable cause question for why he brought -- and Your Honor asked the question -- why did Mr. Epstein file this malicious prosecution action? He told Mr. Scarola back in 2010 -- on page 23, Mr. Scarola said, "Did Brad Edwards do anything that he shouldn't have done that forms the basis of your lawsuit against him?" "Yes, many things." "List them for me, please." "He has gone to the media out of, I believe, an attempt to gin up these allegations. He has contacted the media. He has used the media for his own purposes. He has brought discovery. He has engaged in discovery proceedings that bear no relationship to any case filed against me by any of his clients. "His firm, which he is the partner of, has been accused of forging a federal judge's signature." Those are but two -- just two that I have taken and the Court has indulged me in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792852 43 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 reading substantive answers. THE COURT: Believe me, I have read these over and over again. They're segregated in various motions that I have been privy to, and I also have read the transcript in full relative to Mr. Epstein's questions. The point that I tried to make with Mr. Link was that, number one, if as a court as a system of jurisprudence, we simply rely upon the contentions of the now defendant in a malicious prosecution claim as to probable cause, then there would really be, essentially -- there would be no malicious prosecution claim that would be brought. Secondly, I understand that it is the plaintiff's burden of proof. Now, if it's a pure legal question, the Court will deal with that accordingly. But at least for now we understand that it's the plaintiff's burden to prove as to probable cause. The point that I made and tried to make with Mr. Link was if a defendant in a malicious prosecution claim -- and I think some of these cases speak essentially to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792853 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that issue -- takes the Fifth Amendment in similar types of cases, then the plaintiff's position will never really be made known, unless there's an introduction to some degree of the fact that to certain questions -- now graphic sexual questions, the likelihood is I am not going to allow those into evidence. MS. ROCKENBACH: Understood. THE COURT: I haven't heard from Mr. Scarola, so I don't want to suggest that I am prejudging anything. But there is a bar that we need to respect as it relates to the difference between relevant evidence and a 403. I get it. But at the same time, I think as the judge, as opposed to an advocate, and taking into consideration both sides' positions, I have to recognize that there is a definitive and direct correlation between the invocation of Fifth Amendment rights as to issues that would go to proof of probable cause relating to the plaintiff's claim, and not simply take Mr. Edwards' (sic) contentions at face value. Because in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792854 45 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 circumstances, such as this one where the Fifth Amendment has been discussed -- and in the vast majority of cases has -- Did I misstate something? MR. SCAROLA: Yes, sir. You said Mr. Edwards. You meant Epstein, I'm sure. So the record is clear, I thought it appropriate to correct that. THE COURT: We have all made those mistakes. I knew it was going to happen. I apologize for it. I caught myself once before. I apologize. Madam Court Reporter, could you just read back where I started with questioning Mr. Rockenbach, please? (Thereupon, the requested portion of the record was read back by the reporter as above duly recorded.) THE COURT: With the vast majority of cases that have dealt with this tension, the allowance on a limited basis of the invocation of the Fifth Amendment makes perfect sense, because logically it is a way for the plaintiff in the malicious prosecution claim -- Edwards -- to be able DRAFT ONLY !!!! NOT PROOFREAD EFTA00792855 46 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 to prove the case -- at least prove probable cause. It makes sense. And if I can divine common sense from these cases, then I feel I have made some reasonably decent strides. But it makes sense. I don't know if you can really argue with that logic. MS. ROCKENBACH: I don't, Your Honor. There's a caveat. We agree with the Court, and we would rely on two cases for this point, because we are talking about -- the reason I drew that line for Fifth Amendment and malicious prosecution is we're talking about whether Mr. Edwards can, in this malicious prosecution case, read questions to the jury that my client took the Fifth Amendment to and draw a negative inference therefrom. The US Supreme Court in Baxter -- that's the case -- that's the Fifth Amendment case -- it says, "It's key that there's independent evidence existing of the fact to which the parties refuse to answer." That's one building block for this issue. The second building block is a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792856 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fourth DCA decision called Frazier versus Security and Investments, 1993. What does Frazier tell us? Not only do we build off the US Supreme Court and say you have to have independent evidence in order to use this Fifth Amendment adverse inference, but Frazier says that this adverse inference is limited against parties when they refuse to testify in response to probative evidence offered against them. Probative evidence offered against them. We looked at those three rings earlier. This lawsuit here is not the ring involving -- I am going to say them all wrong -- E.W., L.M. and Jane Doe. It's not. This is the malicious prosecution ring and suit. So the reason I read some excerpts from Mr. Epstein's deposition to Your Honor is to show that he didn't take the Fifth Amendment on issues relevant to why he filed the malicious -- why he filed his civil proceeding, the underlying suit for this malicious prosecution case against Mr. Edwards. He substantively answer those DRAFT ONLY !!!! NOT PROOFREAD EFTA00792857 48 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 questions. What he didn't answer were questions that would fall in the Fifth Amendment column that would be relevant in those three claimants' lawsuits or claims or criminal action. In that substantive three-hour deposition taken of my client, he was asked, "How many children have you sexually abused?" Have you ever sexually abused children? Have you ever socialized with -- and then he was asked about public figures -- the governor of New Mexico? "On how many occasions did you solicit prostitution? How many prostitutes do you contend you solicited? How many minors have you procured for prostitution. These are questions -- How many times did you engage in oral sex with females under age 18?" These have no relevance to the malicious action. And those are the very questions that we are asking Your Honor to not only preclude from being admitted to -- into evidence or any reference in the malicious prosecution, but also to preclude DRAFT ONLY !!!! NOT PROOFREAD EFTA00792858 49 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 from using the Fifth Amendment right against self-incrimination when those very questions have, A, no probative value in this lawsuit, no probative evidence, whatsoever; and B, there is no independent evidence -- THE COURT: I knew you all worked very hard in having produced these materials, and you all got involved somewhat late in the game, but what I didn't get is a definitive list of questions and answers that are sought to be excluded. Globally, as I indicated, and thus far, my inclination is not to allow those types of questions to be asked of Mr. Epstein or to be utilized as -- to be published to the jury. However, questions that deal with the fact that suits were brought against Mr. Epstein by at least the three people that were brought -- other suits that were brought against Mr. Epstein either by minors or by women of age that were actually filed or claims that were made and were paid by Mr. Epstein, those types of questions, I DRAFT ONLY !!!! NOT PROOFREAD EFTA00792859 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe, are going to be of probative value, which is essentially relevance, defined as tending to prove or disprove a material fact. What's the material fact? You can answer it or I will answer it. MS. ROCKENBACH: I have a question for Your Honor. But go ahead. THE COURT: What I would perceive to being the probative issue or the relevance gets to why Mr. Epstein brought this claim in the first place. A basic question, as I mentioned before, that the jury is going to have and the Court has, and for them to be hamstrung from asking those questions, flies in the face, as far as I'm concerned, of the majority of the cases that I have read that touch on these types of cases. They may not be a specific malicious prosecution case, but the logic still is maintained. You see? It can be differentiated -- some of these graphic questions that I'm not going to repeat here, but are a matter of public record and are in the materials far more graphic than what you have given us as DRAFT ONLY !!!! NOT PROOFREAD EFTA00792860 51 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 exemplars -- and I respect the fact that you didn't need to bring those into the record today. But what I am saying is that it goes back into the logic that I described earlier. MS. ROCRENBACH: Your Honor mentioned two categories -- THE COURT: And I'm not -- excuse me for a moment. I apologize for that. But I'm not trying to be definitive as far as the categories that are going to be or not be allowed. What I'm trying to give you is some type of global perspective, because, as I said before, unfortunately, whether it's time or whatever it may have been, the questions, to my knowledge, have not been segregated out. So as to go through on a question-by-question basis, yes or no. That may have to be done at a later time. But what I'm trying to do is indicate to you that from a jury perspective, they are going to need to know what fueled potentially, Mr. Epstein. Was it what he says, or at least from a circumstantial DRAFT ONLY !!!! NOT PROOFREAD EFTA00792861 52 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 standpoint, and based upon his refusal to answer questions germane to those three pseudonym -- the pseudonyms used by those plaintiffs and others who have brought claims -- I don't think those three cases, to my recollection, were the only three cases that were brought -- maybe by Mr. Edwards. MS. ROCKENBACH: They were the only ones brought by Mr. Edwards. And that leads me to the point -- I was going to jump back with Your Honor and say, you identified two categories and you said it's potentially relevant and probative to discuss those three that were the three lawsuits and others. THE COURT: Are you going to tell me that he -- part of -- Mr. Epstein did not bring any cases against any of the other lawyers? Is that what you're going to suggest? MS. ROCKENBACH: Number one, that is true and correct and accurate. He did not. And those other cases -- any other claims that were not being represented by DRAFT ONLY !!!! NOT PROOFREAD EFTA00792862 53 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, they have no relevance to Mr. Epstein's lawsuit that he brought in December of 2009. THE COURT: You can argue that. I have no problem with that argument. MS. ROCKENBACH: But, Your Honor, as you've recognized, Your Honor is the gatekeeper. And introducing evidence that has absolutely no probative value and no relevance would be very harmful, inflammatory and clearly prejudice my client from -- THE COURT: I understand the point. You can proceed. MS. ROCKENBACH: Thank you, Your Honor. MR. LINK: Your Honor, can I offer a suggestion based on what I have heard? THE COURT: Any objection, Mr. Scarola? MR. SCAROLA: No, sir. THE COURT: Yes, sir. MR. LINK: Your Honor raises a good point, which is, without the specific questions in front of you, it makes it more difficult. And I do apologize. You're right. We DRAFT ONLY !!!! NOT PROOFREAD EFTA00792863 54 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 scrambled up until 10 o'clock the night before Thanksgiving. THE COURT: That's why I wasn't criticizing anybody for not having -- MR. LINK: And we didn't take it that way, Judge. But I do think it would be helpful for the Court and for the parties if we go through the questions and the answers -- there's not that many of them, frankly -- and have the Court make a ruling, because without doing it question by question from the depositions, you are giving this general guidance, but it doesn't help us get ready for the jury trial, Your Honor. THE COURT: I agree. I agree. And I have no problem with that. We have set aside several days in order to deal with that. But we can talk about the general theory of the utilization of the Fifth Amendment and how that is going to be presented to the jury. So let's go on and proceed further, please. Thank you, Mr. Link. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792864 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: Thank you, Judge. MS. ROCKENBACH: Thank you, Your Honor. I have provided Your Honor with the law that really is central and core to your gatekeeping function under 90.401 and 403. And the point is that there's no probative evidence. These Fifth Amendment questions that were asked of my client -- THE COURT: No probative value. MS. ROCKENBACH: No probative value. And the Frazier -- the Fourth DCA says that even that adverse inference against parties when they refuse to testify in response to probative evidence offered against them. If my client had taken the Fifth Amendment when Mr. Scarola asked a question about what did Mr. Edwards do to wrong you? How did he abuse his license to practice law, and my client said Fifth Amendment, absolutely, that is a question that would not only get read, it would get the adverse inference. But the questions that were asked of my client have zero probative value and are not anything related to the issues of probable DRAFT ONLY !!!! NOT PROOFREAD EFTA00792865 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cause in this action. So I might suggest that since Mr. Scarola is the proponent of those questions and that evidence, that he would identify questions that he wants to present to which my client pled the Fifth. Before I stop speaking, though, just one other point. Mr. Edwards wants to use my client's invocation of the Fifth Amendment as a gag order on the column of malicious prosecution answers, meaning, in one of his motions it's to strike the affidavit. And to be clear to the court, we are not submitting an affidavit as testimony at trial. We wouldn't do that. But it is a blueprint for what my client would testify to, as is the complaint that my client filed against Mr. Edwards. Those were the allegations and the facts and circumstances, which goes to probable cause that Mr. Epstein relied on in December of 2009. So Mr. Edwards is moving to strike the affidavit, and based on the Fifth Amendment, says that my client can't DRAFT ONLY !!!! NOT PROOFREAD EFTA00792866 57 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 use it sword and shield. My client is not using Fifth Amendment as sword and shield whatsoever. In the example I gave Your Honor, that would be a sword and shield if my client refused to answer the question of why he filed the original proceeding against Mr. Edwards in December of 2009, why he instituted that action, Fifth Amendment, that would be a sword and shield, and they could get an adverse inference. So part of my omnibus -- revised omnibus motion in limine and the response to, I think, Mr. Edward's motion to strike my client's affidavit, implicates the Fifth Amendment. THE COURT: We will take up with the striking of the affidavit separately. MS. ROCKENBACH: Okay. THE COURT: I don't think -- MR. SCAROLA: That issue is moot. The affidavit is not going to come into evidence, obviously. It was moved to be stricken as support for a motion that has already been denied. So I don't know why DRAFT ONLY !!!! NOT PROOFREAD EFTA00792867 58 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 we're talking about striking the affidavit. MS. ROCKENBACH: Good. Then it seems that it's moot by Mr. Edwards and we will move on. But we wanted to make sure that that testimony that's provided in the affidavit should not be under some type of gag order. My client should be able to testify as to what -- why he had probable cause. THE COURT: My position, before Mr. Scarola mentioned its mootness, was that as long as the information that's set forth in the affidavit, which by the way -- and it's not uncommon -- as brilliant as both sides are, I didn't have a copy of the affidavit. MS. ROCKENBACH: I apologize to the Court for that. THE COURT: It's okay. While it may have been attached somewhere -- one other thing. I don't know why Mr. Scarola, from your office, I didn't receive any binder or anything else. I had to, last night, copy the replies and the responses to take home with me. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792868 59 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: We work in a binder-free zone, Your Honor. THE COURT: That's fine. But I do require -- because most -- as last night -- most of my preparation is done at home. And I'm so tired of looking at computers that it's much easier for me to have the hard copies. I know others are much more computer savvy when it comes to those kinds of things. But I just find it more comfortable to be able to have something in my hand and read it. If you can kindly go ahead and forward them to me so -- last night getting the responses and having my JA I commend her for staying as late as she did last night and getting all of that material and helping getting it all marshaled -- Again, I just wanted to gently remind you folks that I may do things differently than others in the sense that I still like to have hard copies and not to sit there in front of a computer later in the evening. Anyway. Sorry I got off on that tangent. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792869 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Did you want to add anything else? MS. ROCKENBACH: Yes, Your Honor. As part of that omnibus motion in limine, we somewhat moved on from the Fifth Amendment questions and answers, because I think Mr. Scarola may want to tee up for the Court what precise questions that he is seeking to admit and introduce into evidence, so that Your Honor can rule on each one. Perhaps we can take that up after lunch. I'm not sure if that works. THE COURT: I would like to hear some of Mr. Scarola's arguments now. I would like to get into the global issue of the Fifth Amendment, as well as parameters that he believes are appropriate as it concerns the nature of the questions that are going to be sought to be introduced and the invocation of the Fifth Amendment and where we stand currently. Because if I'm understanding correctly, because of the pendency of that federal lawsuit, essentially Mr. Epstein is going to be taking the same position now as he has in the past? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792870 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. ROCKENBACH: With regard to the Fifth Amendment? THE COURT: Yes, ma'am. MS. ROCKENBACH: Yes, Your Honor. That's correct. I want to make sure. But not with regard to any probable cause questions, like those that were asked in his depositions, to which he did not invoke the Fifth Amendment. They were relevant questions to this action. He will not be invoking the Fifth as to those questions. But yes, consistent with the questions that were asked of him in his deposition, to which he invoked the Fifth, he will be doing that again. THE COURT: And you're not, at this point -- because I know that the counter-plaintiff Edwards was concerned about retracting any of his Fifth Amendment invocations. That is not planned at this juncture? MS. ROCKENBACH: That's correct, Your Honor. THE COURT: So that obviates, then, the need for Mr. Scarola to redepose DRAFT ONLY !!!! NOT PROOFREAD EFTA00792871 62 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. Epstein? MS. ROCKENBACH: Correct. THE COURT: Mr. Scarola, thank you for your patience. You may proceed, sir. Thank you, Ms. Rockenbach and Mr. Link, for your written and oral presentations. MR. SCAROLA: Thank you very much, Your Honor. If you don't mind, I'm going to stand at the podium that says, Plaintiff. Your Honor, there is a very fundamental disagreement between present counsel for Mr. Epstein and Mr. Edwards. You heard Mr. Link say -- and I think I took down the quote exactly -- we have never challenged that these three cases were legitimate cases. Well, I can understand why it is that at this point in the litigation, Mr. Link wishes that they had never challenged that these three cases were legitimate cases. But the fact of the matter is that Bradley Edwards was sued for ginning up, fabricating, constructing those three cases, and others, as a knowing participant in Florida's largest ever Ponzi scheme, that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792872 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is, there were two clearly identifiable allegations of wrongdoing contained within the complaint filed by Bradley Edwards. He was alleged to have fabricated these cases. And it was alleged that the reason why he fabricated the cases was as a knowing participant in the Ponzi scheme. I can provide the court -- and I will do that -- with a copy of the complaint that was filed in this action. We've highlighted various allegations in that complaint, Your Honor, that specifically include the assertions that Bradley Edwards was involved in manufacturing, fabricating, ginning up these claims. In paragraph seven, it is alleged that L.M. was an essential participant in the scheme referenced in this complaint, by among other things, substantially changing prior written sworn testimony so as to assist the defendants, plural, in promoting their fraudulent scheme for the promise of a multi-million dollar recovery relevant to civil actions, defined below, involving Epstein, which was completely out of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792873 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proportion to her alleged damages. If we go to paragraph 30, "By using the civil actions against Epstein as bait and fabricating settlements regarding same, Rothstein and others were able to lure investors into Rothstein's lair and bilked them of millions of dollars which, in turn, were used to fund the litigation against Epstein for the sole purpose of continuing the massive Ponzi scheme." "The sole purpose of continuing the massive Ponzi scheme." These weren't legitimate claims. They were being used solely to fund the Ponzi scheme, according to the allegations. Thirty-one. "As part of this scheme, Rothstein and the litigation team" -- and the litigation team is defined in the complaint as Brad Edwards. Paragraph E: -- "utilized the judicial process, including, but not limited to, unreasonable and unnecessary discovery for the sole purpose of furthering the Ponzi scheme." Forty. "Edwards filed amended answers DRAFT ONLY !!!! NOT PROOFREAD EFTA00792874 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to interrogatories in the state court matters, E.W. and L.M., and listed additional high-profile witnesses that would allegedly be called at trial, including, but not limited to:" And then various individuals are identified. And then paragraph 41. "The sole purpose of the scheduling of these depositions was, again, to pump up the cases to investors. There is no evidence to date that any of these individuals had or have any knowledge regarding RRA's civil actions." THE COURT: For the record, that's a quote from paragraph 41, as opposed to argument. MR. SCAROLA: Thank you. Sir. I'm sorry. If we go to page 18 of the complaint, subparagraph H. "Rothstein" -- and again, this is a quote. "Rothstein and the litigation team knew or should have known that their three filed cases were weak and had minimal value for the following reasons." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792875 66 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 Those reasons are listed. Again, questioning the legitimacy of the claims. Page 21, paragraph 44. "The actions described in paragraph 42 above herein had no legitimate purpose in pursuing the civil" litigations (sic) "against Epstein, but rather were meant to further the fraudulent scheme and criminal activity of Rothstein." Paragraph 46, the last line. "RRA and the attorneys in the civil actions" -- Please remember, the civil action is a defined term in the complaint. It's L.M., E.W. and Jane Doe's claims -- "needed to create a fiction that included extraordinary damages. However, the actual facts behind her action would never support such extraordinary damages." Going down to the last sentence in subparagraph A. "Under the circumstances, her claim for damages against Epstein, one of L.M.'s many johns during that same period, would be so incredible and certainly not likely to produce the extraordinary settlements promised to RRA's investors." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792876 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Paragraph 49 of page 27, second sentence. "Rather than evaluating and resolving the cases based on the merits, that is, the facts, which included knowledgeable, voluntary and consensual actions by each of the claimants and substantial pre-Epstein psychological and emotional conditions," et cetera. So again, the allegation is that these children were knowledgeable, voluntary and consensual participants. THE COURT: Let me ask you this. My memory is good, but not great. The three litigants that Mr. Edwards represented and perhaps still represents -- L.M., E.W. and Jane Doe -- were they all allegedly underaged at the time of these encounters? MR. SCAROLA: Yes, sir, they were. So that obviously, as a matter of law, they were incapable of consenting. The last sentence I want to reference in this case, Your Honor, appears at page 30. The last sentence in paragraph 52, in order to continue to bring in moneys from investors, Rothstein and other DRAFT ONLY !!!! NOT PROOFREAD EFTA00792877 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 co-conspirators used the civil actions against Epstein, along with other manufactured lawsuits, as a means of obtaining massive amounts of money." So when opposing counsel tells you, We have never challenged that these three cases were legitimate, again, while I understand why they wish that were true, that is not true. And when Mr. Epstein was deposed in this action, Mr. Epstein was asked about what he meant when he testified that these cases were ginned up. And what he said was -- referring to L.M., E.W. and Jane Doe -- what he said was, Well, when I said ginned up, I meant manufactured, fabricated cases. And the assertion is made that he never asserts the Fifth Amendment with regard to matters that are relevant to probable cause, as to whether he had a legitimate basis to claim that Bradley Edwards fabricated these cases. Page 34, the deposition of March 17, 2010 at line 23, quote, Specifically, what DRAFT ONLY !!!! NOT PROOFREAD EFTA00792878 69 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 allegations against you which you contend Mr. Edwards ginned up? Answer: "I would like to answer that question. A, many of the files and documents that we've requested from Mr. Edwards and the Rothstein firm are still unavailable. "With respect to anything that I can point to today, I'm, unfortunately, going to have to take the Fifth Amendment on that, the Sixth and Fourteenth." Now, that's just one very obvious example where he's asked directly, what are the allegations that you claim in your complaint are ginned up, and he refuses to answer the question on basis of the Fifth Amendment privilege. There are many others. And the question is posed, which questions do I want to place before the jury as to which Mr. Edwards -- excuse me, I did it -- to which Mr. Epstein has asserted the Fifth Amendment, and the answer is every single one of them. THE COURT: And that's where we're going to have difficulty. As far as the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792879 70 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 Court is concerned the case that -- strike that. The question and answer that was just provided would be admissible. What we're talking about, Mr. Scarola, are questions that were cited in the motion and that the court has chosen not to read, that are of a graphic, sexual nature, and have, to my recollection, a general form of question, as opposed to specifics: Have you ever done certain things to minors? Have you ever been with prostitutes? Have you ever -- things of that nature. MR. SCAROLA: I don't recall that last question, but I understand the Court's -- I understand the Court's concern. THE COURT: Ms. Rockenbach's question. Again, I know you understand it, but I want to make sure that the record is clear, and that's this. I have an obligation, as both sides are well aware, to ensure that we are working on a level playing field to the extent that it is possible. I have the obligation, as Ms. Rockenbach points out, to be the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792880 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gatekeeper of evidence and to ensure to the best of my ability that we are not going to be engaging in pejorative name-calling types of questioning, nor are we going to get into inflammatory types of questioning just for the sole purpose of information. Now, I know you wouldn't do that. But at the same time, as advocates, your respective positions have to be clear-cut in favor of your respective clients. However, as I said earlier, it really becomes an issue of drilling down into the specifics before I can make rulings on the actual questions that are being sought to be introduced. So the global aspect of the Court's decision at this time, until I look at the actual questions, is essentially this. And, that is, that I'm going to permit -- and we've already gotten a stipulation on the record by Mr. Epstein's counsel, which I appreciate -- that is, he's not going to be receding from his Fifth Amendment invocations. He's not going to be changing his testimony, so as to necessitate further DRAFT ONLY !!!! NOT PROOFREAD EFTA00792881 72 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 discovery as it relates to his testimonial evidence that has already been presented. Therefore, those questions that deal with, for example, the question that you asked and answered, would be admissible. Those, because of the reasons that I stated earlier, would seem to make common sense to me and seems to be the thrust of the decisions of the court's, whether in Florida or outside of Florida -- the vast majority being outside of the state and some from the federal courts -- and, that is, that the Fifth Amendment cannot be used to take away Mr. Edwards' ability to prove his case or prove the probable cause element. So to the extent that it would be needed to go in front of the jury, any questions that deal with the issue of Mr. Epstein's lawsuits brought by Mr. Edwards on behalf of the respective clients, would be germane. And any invocation, such as what was illustrated here, would be germane and relevant and found to be admissible. That's the core ruling of the Court. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792882 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, when it comes to issues of general graphic questioning, such as what has been exemplified by way of the counter-defendant's motion, those will not be permitted. The closer question, and the one that I need to drill down further, is one of -- because the complaint -- and I appreciate the fact that you brought this with you today and provided it to me -- because the complaint delineates the nature of the allegations -- at least from a summary perspective of the three claims -- how much are we going to be able to introduce, if those questions were asked? I haven't memorized the deposition testimony. There were at least two depositions, if I'm not mistaken. MS. ROCKENBACH: Yes, Your Honor. THE COURT: Two depositions. I haven't memorized that testimony. But since the complaint -- let me cite to you exactly where we are -- where I am alluding to here. Page 18 and it states, "Rothstein and the litigation team knew or DRAFT ONLY !!!! NOT PROOFREAD EFTA00792883 74 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 should have known that their three filed cases were weak and had minimal value for the following reasons." Then it goes through "L.M. testified she had never had any type of sex with Epstein; worked at numerous clubs; is an admitted prostitute and call girl; has a history of illegal drug use" (pot, painkillers Xanax, Ecstasy); and continually asserted the Fifth Amendment during her depositions in order to avoid answering relevant but problem questions for her. "E.W. testified she worked 11 separate strip clubs, including Cheetah, which RRA represented and in which Rothstein may have owned an interest. And E.W. also worked at Platinum Showgirls in Boynton Beach, which, as the subject of a recent police raid, where dancers were allegedly selling prescription painkillers and drugs to customers and prostituting themselves. "Jane Doe (federal case) seeks $50 million from Epstein. She and her attorneys claim severe emotional distress as a result of her having voluntarily gone to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792884 75 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 Epstein's home. She testified that there was never oral, and/or sexual intercourse; nor did she ever touch his genitalia. Yet, Jane Doe suffered extreme emotional distress well prior to meeting Epstein as a result of having witnessed her father murder his girlfriend's son. She was required to give sworn testimony in that matter and has admitted that she lied in sworn testimony. Jane Doe worked at two different strip clubs, including Platinum Showgirls in Boynton Beach." End quote. That's going to be a matter for further discussion, as far as what, if any, questions were related to those three individuals, and whether Mr. Epstein refused to answer those questions. Because if he did refuse to answer those questions specific to those three individuals, then the likelihood is -- again without prejudging -- I haven't looked at those questions -- that I will admit those into evidence, because they relate directly to Mr. Epstein's claim in his deposition and his repeated claim that these cases were, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792885 76 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 quote, ginned up, end quote, and had no merit until rather recently. MR. SCAROLA: And in that regard, Your Honor, obviously, if the defense is going to take the position, as they have stated on the record now, that these were all legitimate claims, the extent to which we need to get into details with regard to what happened between Jeffrey Epstein and each of the three claimants against him is going to be very different than if they persist in challenging the legitimacy of the claims. Now, if they do that, if they are continuing to challenge the legitimacy of the claims, despite the on-the-record announcement that's just been made, this is going to be a very different trial than if they come in and say, In spite of the fact that Jeffrey Epstein alleged that Bradley Edwards fabricated these claims, we no longer take that position. We recognize the fact that these were, indeed, legitimate claims, very valuable legitimate claims. So valuable that we settled them for $5.5 million in combination. And extremely DRAFT ONLY !!!! NOT PROOFREAD EFTA00792886 77 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 valuable claims because of the punitive damage exposure that Mr. Epstein confronted. How much we need to prove is dependent upon how much is contested. I doubt that they are going to concede punitive damage liability. THE COURT: Where are we on that? Has there been a ruling on the punitive damage claim? MR. SCAROLA: We have an amended permitted by the Court. There is a punitive damage claim pending against Mr. Epstein. There are pending issues with regard to the implications of Fifth Amendment assertions with regard to issues concerning net worth, because among the questions he's refused to answer are any questions relating to his net worth. THE COURT: Okay. But there is a current punitive damage claim? MR. SCAROLA: Absolutely. Yes, sir. THE COURT: I just want to make sure. The way it was written, it was a little bit cryptic in terms of pending. I didn't know if it was still a motion that needed to be DRAFT ONLY !!!! NOT PROOFREAD EFTA00792887 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heard in that regard. That's all been taken care of. MR. LINK: I think Judge Crow entered that order, Your Honor. MR. SCAROLA: All over but the jury verdict. Your Honor, in the 10 minutes or nine minutes now that I have left before lunch, I want to go through something that I think will be helpful to the Court. In resolving some of the issues that Your Honor has focused on, which clearly are issues of concern with regard to how probable cause is proven in the context of a Fifth Amendment assertions on the part of the defendant who won't talk about some elements -- MR. LINK: Mr. Scarola, may I interrupt for one second? Do you mind? MR. SCAROLA: Yes, sir. MR. LINK: Judge, I want to make sure this is clear, because I thought I stated this very clearly, but sometimes what comes our of my mouth isn't what's in my head. THE COURT: It's okay. Go ahead. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792888 79 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. LINK: Which is, I believe I very clearly said that we have never taken the position that during the time that Mr. Edwards was a sole practitioner, when these cases were filed up to the point that he joined Mr. Rothstein's firm, did we contend that he was doing anything that was inappropriate. THE COURT: Okay. MR. LINK: During the time that he was at the Rothstein firm -- if you will read the complaint -- everything that Mr. Scarola just read to you was all during the time he was employed at Mr. Rothstein's firm. There is not an allegation in this complaint that relates to the time period from when they were filed until he joined Mr. Rothstein's firm. That's a very significant distinction, because we are absolutely going to say that Mr. Rothstein himself was using -- MR. SCAROLA: I'm sorry. Could I finish my argument in the few minutes that are left before we hear rebuttal? THE COURT: But it may be helpful to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792889 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hear what Mr. Link is trying to suggest so that you can formulate your argument. MR. SCAROLA: I know exactly -- THE COURT: I will give him a minute. MR. LINK: I don't want to take long. I just want to clarify, because Mr. Scarola said that we have conceded that nothing was fabricated. What was fabricated was not the filing of the three lawsuits in 2008. It was that there were other claims in addition to those three, and that one of these three settled for 30 million, and that Mr. Epstein had offered $200 million. Those are the things that we were talking about during that time period. THE COURT: Well, the allegation, though, in subparagraph H, which was already read into the record -- I will read it again, quote, Rothstein and the litigation team -- parenthetically Mr. Scarola has suggested that the litigation team is defined as Mr. Edwards -- returning to the quoted provisions -- knew or should have known that their three filed cases were weak DRAFT ONLY !!!! NOT PROOFREAD EFTA00792890 81 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 had minimal value -- and for the reasons I have already gone through in addressing what I think is going to be relevant as to those three individuals if the contention is still that these claims were not legitimate during the period of time that Mr. Rothstein ad Mr. Edwards worked together. MR. LINK: I just want to make this distinction. I don't want to beat this horse too much. If you look at the paragraph before that paragraph, it talks about the $500 million settlement. THE COURT: I will take that in consideration. MR. LINK: So it's relative to that. Second, Your Honor -- MR. SCAROLA: I'm sorry. I would like, in the few minutes remaining, to be able to make some points before -- THE COURT: Mr. Link, I am going to ask you, then, to save your commentary for rebuttal. MR. LINK: I just was trying to answer your questions. THE COURT: I didn't know I had a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792891 82 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 question pending, but I appreciate it. MR. LINK: My pleasure. MR. SCAROLA: Your Honor, I have prepared an outline, which I hope is of some help to the Court in placing these issues in context. The first thing that Your Honor needs to determine is the issue that we have been focusing on. What are the factual allegations that we claim were maliciously prosecuted against Bradley Edwards? Now, what we have just heard is an effort to draw a distinction that is not drawn in the complaint. What we heard is we claim that the legitimate cases that were filed by Bradley Edwards while he was the sole practitioner somehow became illegitimate the moment he walked trough the door of RRA. That's what we just heard. That just doesn't make any sense. That's not the allegation in the complaint. The allegation in the complaint -- and as testified to by Mr. Epstein repeatedly in his deposition -- the allegation in the complaint is Bradley Edwards, quote, ginned DRAFT ONLY !!!! NOT PROOFREAD EFTA00792892 83 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 up these claims and he describes that as he crafted the complaints, he fabricated the complaints. Now ginned up doesn't happen to appear in Merriam-Webster's dictionary. But there are sources that define ginned up. The Oxford Dictionary says ginned up means to generate or increase something, especially by dubious or dishonest means. The McMillan dictionary: To create, to generate, especially artificially or by dubious means. The Free Dictionary: To create or produce. So what we are alleged to have done is to have generated by dubious and dishonest means, claims on behalf of three individuals who really weren't victims for the sole purpose -- as Mr. Epstein repeatedly alleges -- for the sole purpose of supporting a massive Ponzi scheme, in which, as Your Honor as observed repeatedly -- and I will get to this in just a moment -- Jeffrey Epstein could not possibly have been a victim. Didn't know about it. Didn't DRAFT ONLY !!!! NOT PROOFREAD EFTA00792893 84 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 know anybody involved in it. Didn't know it was going on until after it was over. Didn't spend a single penny investing in his own fabricated settlements. And to the extent that he claims his damages are attorney's fees for what was going on while these cases were being prosecuted, Your Honor is very, very familiar with the litigation privilege, and knows that nothing that went on in the course of the prosecution of those cases, whether it was legitimate or illegitimate, can form the basis of a separate civil lawsuit. Motion for contempt, motion to impose sanctions, 57.105 motion, bar complaint -- a lot of other remedies are available, but not a separate civil action, because he had to spend attorney's fees on what he claims were illegitimate discovery pursuits, which the evidence will show were totally and completely justified, and in many cases initiated long before Bradley Edwards ever became a member of RRA. So, even if it were not already clear DRAFT ONLY !!!! NOT PROOFREAD EFTA00792894 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that -- THE COURT: You are talking about the expenditure of attorney's fees? MR. SCAROLA: Yes. That's correct. Could not be damages. Just can't be as a matter of law. Even if it were not already clear that Epstein alleged Brad fabricated the three cases he was prosecuting against Epstein, that's the only allegation that could possibly support a claim against Brad -- because as I mentioned -- because of the litigation privilege. But in addition to that, he suffered no damage from the Ponzi scheme. He didn't even know about it. Any action Brad took in the course of prosecuting those three cases, absolutely privileged. And as a matter of law, it has been established in this case that there was no evidence to support those claims, because we filed a motion for summary judgment. On the eve of the motion for summary judgment, without ever having filed any opposition whatsoever, he voluntarily dismissed those DRAFT ONLY !!!! NOT PROOFREAD EFTA00792895 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 claims. That issue has been resolved. So we must prove lack of probable cause as to either/or both of the two false claims. We have to prove Epstein did not have a reasonable basis to believe that Brad fabricated the three claims, and he didn't have reasonable basis to allege that Brad was a knowing participant in the Ponzi scheme. How do we do that when there is a Fifth Amendment assertion? How do we prove what Epstein reasonably believed when he blocks relevant discovery with the assertion, not only of a Fifth Amendment privilege, but of a clearly legitimate attorney-client privilege as well? And Your Honor has read the depositions. You know all of the relevant questions that were not answered with regard to attorney-client privilege are matched by the number of relevant questions to which he asserts attorney-client privilege as well. So where do we go from there? And the answer -- THE COURT: Take about two minutes to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792896 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrap up. I want to respect the fact that I have already allowed Ms. Rockenbach to leave at 11:45. MR. SCAROLA: Yes. Thank you. I will, Your Honor. The answer lies in a very fundamental presumption. And that fundamental presumption is every person is presumed to have intended the natural and probable consequences of his act. Very basic principle of law. It is cited specifically in the case that I have on this page. But it is a universal principal of law recognized in all American jurisdictions. So, proof that Epstein filed a false claim against Bradley Edwards gives rise to the presumption that he intended to file a false claim against Bradley Edwards. Florida statute 90.301 through 304 -- those are three provisions of the evidence code -- talk about the effect of that presumption -- and I won't go into that now. I will wait until after lunch -- but, basically, this lays out the way this case is proved. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792897 88 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 If we prove that these were not false claims, if we prove that Jeffrey Epstein knew they weren't false claims, because he was the one who physically participated in doing what he is alleged to have done, so he had to have known what he did -- once we've proven that, the presumption arises he intended to file knowingly false claims against Bradley Edwards and we have shifted the burden of proof to him to prove one of two things: the claims were true. That's a defense. The other defense is, Well, we know the claims were not true, but I reasonably believed them to be true at the time. Thank you, sir. I will leave it right there. THE COURT: Thank you, again, both sides for your excellent presentations. Thank you to our courtroom personnel as well. What we are going to do is return at about 1:40. I have something that I need to do between the lunch, which I'm going to leave a little early and an errand I need DRAFT ONLY !!!! NOT PROOFREAD EFTA00792898 89 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 do. So come back at 1:40. What I propose we will do is I will give you two hours this afternoon. We will go to about 3:40, and then proceed back with the remaining issues on the days that we have already set aside. Again, thank you all very much for your courtesies. Have a pleasant lunch. We will reconvene at 1:40. We will be in recess. Thank you. (A recess was had 11:48 a.m. - 1:44 p.m.) THE COURT: Good afternoon, everybody. Welcome back. Okay let's go ahead and proceed then. Mr. Scarola, you were in the midst of your PowerPoint. MR. SCAROLA: Thank you, sir. Yes. Your Honor, just to recap the point at which we broke off, the defense has taken the position that the Baxter and Frazier cases stand for the proposition that the Fifth Amendment may not be the sole basis upon which a plaintiff rests its case to satisfy the burden of proof with regard to any element of the plaintiff's claim. We DRAFT ONLY !!!! NOT PROOFREAD EFTA00792899 90 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 don't take issue with that. That's good law. You cannot determine from a Fifth Amendment adverse inference alone whether probable cause did or did not exist. And that's why I have reviewed with Your Honor what the other evidence is that both directly and circumstantially establishes that there was an absence of probable cause. We begin with a point that one is presumed to have intended that which one did. And Jeffrey Epstein when he filed claims, demonstrated to be false, is presumed to have intended to file claims that were false. We are not taking about malice yet. Independent of any evidence that relates to malice, we get to prove the truth of Brad Edwards' underlying claims on behalf of L.M., E.W. and Jane Doe. So that then brings us -- THE COURT: I think I have already essentially ruled on that from a global standpoint. I am in agreement with you that any Fifth Amendment invocations as it DRAFT ONLY !!!! NOT PROOFREAD EFTA00792900 91 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 pertains to L.M., E.W. and Jane Doe -- again, globally and without getting into graphic -- I intend to admit as being relevant. You can proceed. MR. SCAROLA: Thank you very much, Your Honor. So we had broken off at this point where I began to talk about Florida Evidence Code sections 90.301 through 304. And I have a copy of those evidence code provisions that I will provide to the Court. I have provided them to opposing counsel as well. THE COURT: Thank you. MR. SCAROLA: These provisions focus on the shifting burden of proof, what a presumption does and what a presumption does not do. And I have underlined some sections here for Your Honor that I think are of particular significance in those three evidence code provisions. And basically the gist of these evidence code provisions is that once we have proven that these were false claims, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792901 92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 once we have adduce proof that these were false claims, and take advantage of the presumption that the filing of knowingly false claims gives rise to one is presumed to have intended to do that, which one did, and presumed to have intended the natural and probably consequences of filing false claims, then the burden shifts. And that's the point at which we broke for lunch, where I pointed out that at that point Mr. Epstein has every right to come in and say, now, Wait a second. You have put on evidence that these were false claims -- I mean, that these were valid claims, but I have the right to come in put on evidence that they were not valid claims. And he absolutely does. THE COURT: I think that was the gist of my point I made earlier regarding the fact that we can't take it from one side only. And that if the proof is essentially within the invocation of the Fifth Amendment, i.e., the questions that were asked that would be pertinent to the issues of probable cause but refuse to be answered, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792902 93 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 then Edwards should not be penalized because of that. MR. SCAROLA: Yes, sir. And I certainly agree with it. And that's why I made the comment that it becomes significant when the defense stands up during the course of this argument and says we are not claiming that these were fabricated claims at the point in time at which Brad Edwards is a sole practitioner. We're claiming they became fabricated claims after he joined RRA. And then I guess what they're saying is they're unfabricated when he settled them for $5.5 million. If he wants to try to make that argument to the jury, that's fine. He can try to make that argument to the jury. I don't think it's going to go anywhere as a matter of fact, nor do I think it's going to go anywhere as a matter of law. But he can try it. He can try to say the valid claims got unvalidated and then got validated again, and I settled them for $5.5 million. At any rate, the burden does shift to him. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792903 94 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 Now, he can also say that these were valid claims, but I reasonably believe them, mistakenly, but reasonably believed them to be invalid claims. I had probable cause to support my malicious prosecution claim, because I thought, mistakenly, but reasonably, that they were invalid claims. Then we get to the fact that Epstein cannot reasonably believe what Jeffrey Epstein knows to be false. And Jeffrey Epstein knows whether he molested these children or he didn't molest these children. So if we prove that he molested them, he cannot contend he reasonably believed that he didn't molest them. We proved he knew the cases were fabricated with proof that he actually molested L.M, E.W. and Jane Doe. We proved that these were not ginned up cases. These were not fabricated or created, not ginned up by proving that he settled them for $5.5 million, not while he was under some misapprehension about what these cases were all about, but after the Ponzi scheme was DRAFT ONLY !!!! NOT PROOFREAD EFTA00792904 95 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 fully and completely disclosed. After he read all of these news articles that he claims that he relied on -- or that his lawyers claimed he relied on, because he hasn't made those claims, but his lawyers have made those claims -- and we proved the cases weren't fabricated, with proof of his guilty plea to the molestation of children with his Fifth Amendment assertion. Because his Fifth Amendment assertion at that point clearly is relevant and material, and an adverse inference can be drawn from that. We proved that he did not have a basis to file these claims, because he fails to defend against the summary judgment, voluntarily dismisses the cases, and never refiles them. No question about the fact that at this important in time there has been a bona fide resolution of his claims in favor of Bradley Edwards. And we proved the cases were not ginned up by proving similar fact evidence. And Your Honor made some reference to this, but I want to be sure that we focus specifically on this aspect of the case, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792905 96 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 because one of the things that the defense is attempting to exclude is any reference to anything other than L.M., E.W. and Jane Doe cases. Your Honor suggested -- and I thought that I heard you correctly -- that evidence with regard to other claims actually filed against Epstein would be relevant and material. And clearly it is. THE COURT: I believe what I said was those cases filed by Mr. Edwards were any claims that were made against Epstein by a client represented by Mr. Edwards. Tell me why you think that the aggregate cases not having anything to do with Mr. Edwards' representation or Rothstein firm's representation -- because Mr. Berger, I think, was involved in some respects as well. MR. SCAROLA: Co-counsel. THE COURT: Solely as co-counsel -- I believe that to be the case -- are you suggesting that the aggregate cases would be relevant? MR. SCAROLA: Yes, sir. And they are DRAFT ONLY !!!! NOT PROOFREAD EFTA00792906 97 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 relevant for multiple reasons. Your Honor will recall the chart that was put up by opposing counsel that attempted to summarize all of those things that Jeffrey Epstein could have reasonably relied upon to -- I guess what they're saying now is mistakenly conclude that Brad Edwards was part of this Ponzi scheme. And among those things that are referenced in that chart were Brad Edwards' efforts to -- for example -- and this is only one example -- to take discovery from pilots about what was going on on Jeffrey Epstein's private planes when all of Brad Edwards' three clients acknowledged that they were not passengers on the planes. And that is true. It is true that all of Brad Edwards' clients acknowledged that they were not passengers on Jeffrey Epstein's private jets. But both the Florida Evidence Code and federal rules of evidence expressly permit the federal rules are very explicit about this: Expressly admit the introduction of evidence with regard to other child molestations in any DRAFT ONLY !!!! NOT PROOFREAD EFTA00792907 98 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 child molestation claim. THE COURT: So let's talk about that for a minute. Because again, what I don't want this to turn into is a case testing whether or not Epstein was an alleged serial child molester. It would not, in my view, pass muster legally, and I don't want to try this case twice. I think that we should be extremely circumspect when it deals -- when we are dealing with global issues of molestation of graphic descriptions of any types of alleged molestation, except where we are dealing with claims that have been brought on behalf of those represented by Mr. Edwards. The risk of error, if we go beyond that intended limitation, is significant. And I want to make sure that we, again, are focused on the elements of the claim. And whether it be for compensatory damages associated with Mr. Edwards' claim or punitive damages associated with Mr. Edwards' claim, we are still dealing with a malicious prosecution claim, solely a malicious prosecution claim. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792908 99 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 so to deviate from that direction would be precarious and concerning to the Court, in particular, because when we're dealing with issue of probable cause, we're focusing on -- as I've made clear -- not only Mr. Epstein's stated intent, but I fully intend to allow circumstantial evidence, inclusive of the invocation of the Fifth Amendment relevant questions pertaining to the plaintiff's -- the counter-plaintiff's, more precisely -- Mr. Edwards' position to explain to the jury why -- or to the Court -- why Mr. Epstein brought this claim. What were the true motivating factors concerning same. To allow this to intrude into allegations of serial molestation is dangerous and is concerning. You may proceed. MR. SCAROLA: Thank you, Your Honor. I acknowledge the legitimacy of the Court's concern. And I recognize the fact that the Court, appropriately, under Rule 403 must balance probative value against prejudice. However, as soon as Mr. Epstein takes DRAFT ONLY !!!! NOT PROOFREAD EFTA00792909 100 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 position, as he has in this demonstrative exhibit that -- THE COURT: Show me where, please. MR. SCAROLA: Let's go through these and -- let me zoom in. On this top line are all of those circumstances subsequent to 4/9/09 when Bradley Edwards became a member of Rothstein, Rosenfeldt & Adler, which counsel says gave raise to a reasonable suspicion that Bradley Edwards was a knowing participant in the Ponzi scheme and was using fabricated claims to support that Ponzi scheme. Let's take them one at a time. Jane Doe move to unseal the non-prosecution agreement. Now, the non-prosecution agreement is expressly referenced in the complaint, as is the Crime Victims' Rights Act case. So if Jeffrey Epstein is going to say efforts to unseal the non-prosecution agreement contributed to his reasonable belief that Bradley Edwards was a knowing participant in the Ponzi scheme, we need explain what the non-prosecution agreement DRAFT ONLY !!!! NOT PROOFREAD EFTA00792910 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was. THE COURT: Okay. MR. SCAROLA: And what the non-prosecution agreement was, was a deal that Jeffrey Epstein entered into with the federal government to avoid criminal prosecution for the molestation of approximately 40 children. Bradley Edwards was challenging the validity of non-prosecution agreement by filing a Crime Victims' Rights Act case, also referenced in the complaint. THE COURT: So let's stop there for a minute and let's refocus ourselves on the motion that's before the Court. It's a motion in limine, particularly -- from this Court's perspective, important as it relates to the invocation of the Fifth Amendment and attorney-client privilege, whatever that might amount to be. If you ask Mr. Epstein -- or if you have asked Mr. Epstein a question regarding whether or not he was motivated to sue Mr. Edwards because in part of the move by Jane Doe through Mr. Edwards -- as I DRAFT ONLY !!!! NOT PROOFREAD EFTA00792911 102 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 understand, Mr. Edwards has been counsel. MR. SCAROLA: Yes, sir. Pro bono counsel in that case for many years. THE COURT: And you ask Mr. Epstein is it not true that you entered into this non-prosecutorial agreement because of X, Y and Z, I don't think there's a problem with that. In other words, if he refuses to answer the question, then I think that can be admitted. A question of whether you are a serial child molestation would fail the 403 analysis in my view. MR. SCAROLA: I'm sorry. If I led the Court to believe that that's what the question was going to be, then I wasn't communicating very well. THE COURT: You have always communicated exceptionally well, so could very well be my error. So tell me what is the intend, then -- do you recall the questions that have been asked, if any, regarding this particular NPA that he failed to respond at this point? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792912 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: No, sir. I can't recall those offhand. What I was addressing was not specifically a Fifth Amendment issue. Although, I recognize the fact that this motion is supposed to be focused on the Fifth Amendment. But Your Honor, I thought, raised the question about whether we were going to get into the existence of other claims besides the claims of L.M., E.W. and Jane Doe. And that's what I was responding to. I was pointing out that there is absolutely no way to avoid getting into the existence of those other claims, because Epstein has raised those issues in the complaint he filed against Brad Edwards. And he is relying upon those circumstances by virtue of the presentation that is being made being made during this hearing to suggest to Your Honor, One of the reasons why I had probable cause to believe that this was maliciously prosecuted case against me was because of what went on after Brad Edwards joined RRA in moving to set aside DRAFT ONLY !!!! NOT PROOFREAD EFTA00792913 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the non-prosecution agreement. So if that's what he's telling you he intends to prove, I'm simply pointing out to Your Honor -- and I can go through this. It's going to come up in almost every one of these elements -- while I understand the Court's concern about trying to narrow the focus, the door has been blown off the hinges by Mr. Epstein's own complaint. And his lawyers have taken that door and thrown it out the window when they argued to Your Honor that one of the reasons why we believe -- or Jeffrey Epstein reasonably believed that Brad Edwards was a knowing participant in the Ponzi scheme, is because he moved to set aside the non-prosecution agreement after he joined RRA. Now, many aspects of this timeline -- THE COURT: I have to say, I really don't understand the connection, but I will give Mr. Link to explain it to me. MR. SCAROLA: I'm not sure I understand it either, but this is their exhibit. They are the ones that are saying this was the basis for our making this determination, or DRAFT ONLY !!!! NOT PROOFREAD EFTA00792914 105 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 Mr. Epstein reasonably believing that Brad Edwards was a knowing participant in the Ponzi scheme. THE COURT: Just for the record, there was never a malicious prosecution claim filed by Epstein -- MR. LINK: There was not, Your Honor. THE COURT: Abuse of process claim? MR. LINK: Yes. THE COURT: Juts so that the record is clear. MR. SCAROLA: Abuse of process claim. MR. LINK: And, Your Honor, if I may just point out -- THE COURT: No, not right now, please. You will have amble opportunity to rebut. MR. LINK: Thank you, Judge. THE COURT: I don't want to get into what we did this morning. MR. SCAROLA: So all I am responding to -- and maybe this isn't the appropriate time to that -- is the idea that we are able to sanitize this case to the point where we are not going to be talking about a variety of other claims that were being prosecuted DRAFT ONLY !!!! NOT PROOFREAD EFTA00792915 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by other plaintiffs' lawyers working together with Brad Edwards, and not going to be talking about the Crime Victims' Rights Act case, because as Your Honor has repeatedly acknowledged, motive is going to be very significant. And we intend to prove that Jeffrey Epstein's motive in filing these knowingly false claims against Brad Edwards his motive was to extort Bradley Edwards into abandoning or cheaply compromising the rights of his clients, and abandoning his efforts through the Crime Victims' Rights Act case to set aside the non-prosecution agreement. He had an enormous economic motive, if he could limit his civil exposure, and he had a tremendous motive, in terms of the criminal liability he faced, and the way he chose to address that was, I'm going to make an example out of Brad Edwards, who ha taken a leadership role among all these plaintiffs lawyers, and I'm going to target one of these victims. I'm going to sue them both, and I'm going to show them what happens when you try to take on this billionaire. That's DRAFT ONLY !!!! NOT PROOFREAD EFTA00792916 107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what he was trying to do. Plain and simple. And we are entitled, I respectfully suggest, to be able to prove just how big a motive that was. What's at stake. THE COURT: I'm not in disagreement with you. When this went on the board, my first response to Mr. Link and his presentation as to Mr. Epstein's reasons were what? Was that this can be turn around directly to harm potentially Mr. Epstein and provide Mr. Edwards with the motivation. So I'm not in disagreement with you. The only thing I am concerned with -- certainly one of the more pertinent things that I am concerned with for today's hearing, again, relates back to how far we are going to permit the jury to hear, or how much we are going to permit the jury to hear as it relates to these other claims. Now, as you further described it -- again, subject to Mr. Link's rebuttal -- there is no way around the fact that the NPA is going to become a part of this trial. As I have indicated earlier, and the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792917 108 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 reason for my question, was to ensure that my understanding was correct that the principle reason -- or a principle reason Mr. Epstein continues to invoke the Fifth Amendment is because of the pendency of this NPA case, correct? MR. LINK: Generally, yes. It's not the pending of the NPA case, but it's the case -- THE COURT: The potential of a criminal -- further criminal exposure if the NPA gets revoked -- or whatever the terminology is -- MR. LINK: That's correction, Your Honor. THE COURT: -- in Judge Marra's court, assuming he's still the Judge on the case. MR. SCAROLA: Just to clarify that point, if I could. THE COURT: Sure. MR. SCAROLA: The non-prosecution agreement is an agreement with the U.S. Attorney's office for the Southern District of Florida. It extends immunity to Mr. Epstein and his unnamed co-conspirators DRAFT ONLY !!!! NOT PROOFREAD EFTA00792918 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 for crimes claims committed in the Southern District of Florida. So even if per chance the Crime Victims' Rights Act case were to go away tomorrow, which seems highly unlikely, Mr. Epstein will still have a valid right to assert a Fifth Amendment privilege. And I acknowledge that. I haven't challenged the validity of his Fifth Amendment assertion. What we are talking about is not his right to assert it, it's the consequences of that assertion. THE COURT: And to respectfully bring us back into focus on what's before the Court, generally, the invocation of the Fifth Amendment, and bringing out the fact that the NPA in some form or fashion, because of it being a reason for the invocation of the Fifth Amendment, is going to be mentioned during the trial. There's no way around it. MR. LINK: We understand that, Judge. THE COURT: Fine. The question that I am going to pose to you and Mr. Scarola now is how far we are DRAFT ONLY !!!! NOT PROOFREAD EFTA00792919 110 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 going to go with that agreement and where the 403 analysis has to focus. So -- Not now. When you have your opportunity. Mr. Scarola. MR. LINK: Champing at the bit, Your Honor. MR. SCAROLA: Your Honor, I believe that it is unavoidable that the jury be informed as to what the non-prosecution agreement is. It would be our intention to enter it into evidence. They need to understand what the Crime Victims' Rights Act is. What they don't need to do is to resolve the legitimacy of 40 other plaintiffs' claims. Now, some of Mr. Epstein's (sic) clients -- in fact, I think all three of them -- are identified in the non-prosecution agreement. So Mr. Epstein, as part of the non-prosecution agreement, agrees to compensate each of these 40 people under specific circumstances. And that gets us into a discussion as to why the federal lawsuit was filed. And this is something DRAFT ONLY !!!! NOT PROOFREAD EFTA00792920 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 that we have referenced briefly in argument before Your Honor earlier. But -- THE COURT: I want to stay on this subject for just a moment, if I could. And that is, tell me why you believe that the motivation that Mr. Epstein may have had to file this suit was relating to or is related to this Jane Doe moving to unseal the NPA. Explain that to me again, please. MR. SCAROLA: Yes, sir. I think that obviously motive can only be proven through circumstantial evidence if the defendant is not confessing. And not only is Mr. Epstein not confessing, he's refusing to give considerable relevant testimony because of his assertion of both the attorney-client privilege in the absence of any assertion of advice of counsel defense, as we have already established, and his Fifth Amendment privilege. So we need to prove what his motive is circumstantially. And Mr. Epstein clearly knows that Mr. Edwards is lead counsel in this Crime Victims' Rights Act case. He clearly knows, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792921 112 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 because he's a participant in that case. He has intervened in the case. He knows that the consequences of that Crime Victims' Rights Act case could be that he loses the immunity that he negotiated with the U.S. Attorney's Office. So being able to push Brad Edwards aside as the primary moving force in the Crime Victims' Rights Act case is obviously a reasonable conclusion from those circumstances. But it goes beyond that, because direct threats were made to Bradley Edwards by Jeffrey Epstein. THE COURT: So the suggestion, I guess, from the defense, the malicious prosecution claim of Mr. Epstein is that he found it necessary to file the lawsuit -- strike that. Yeah. He found it necessary to file the lawsuit against Rothstein, Edwards and L.M., because he felt that by doing this unsealing it was motivation, it was exposure, it was public information so as to allegedly gin up these three claims held by the three plaintiffs with the initials and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792922 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 Jane Doe. MR. SCAROLA: Yes. THE COURT: On the other hand, as I indicated, the reverse effect taking place, would be Mr. Edwards' position that in fact the ill motive was the fact that -- and to file this lawsuit against Edwards and others -- was because Mr. Epstein was being exposed, if you will. MR. SCAROLA: Poor choice of words. THE COURT: Pardon me? MR. SCAROLA: Poor choice of words. That was a joke, Your Honor. A bad one. THE COURT: That's okay. I understand. So that's essentially what I am understanding count -- point counterclaim. MR. SCAROLA: Yes, sir. My only point is, we can't avoid getting into that. As soon as they raise it, we can make the counterpoint. We can explain why it was done. And the same thing is true with regard to everything else that is on this list. The claim for $50 million -- THE COURT: I'm not sure that they even DRAFT ONLY !!!! NOT PROOFREAD EFTA00792923 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 have raise it for it to be relevant. MR. SCAROLA: I don't think they do, because we have an obligation to prove our case. We get to prove malice. THE COURT: Well, I am even talking about probable cause. MR. SCAROLA: And probable cause. Yes, sir. I agree. We can prove probable cause. We can prove what Mr. Epstein knew. We can prove his motives, and we can prove malice as part of proving probable cause. But I don't think it's necessary to ever parse out is this relevant to probable cause only, is it relevant to malice only. If it's relevant to one or the other it comes in. THE COURT: And the 40 individuals that you are contending and that's the subject to this NPA are all minors? MR. SCAROLA: Yes, Your Honor. And what the federal law says is $150,000 per molestation. That's what the federal law says. And what the NPA says is if these claim are brought pursuant to the federal statute, you are not going to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792924 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 contest your liability. Now, what they did contest is whether it's 150,000 per molestation, or 150 cap. So once you pay the 150,000 you get to molest these kids as many times as you want to. THE COURT: Per claim? MR. SCAROLA: Yes. So that was an issue. But that's the reason why -- and the jury is going to need to hear this -- why does Brad Edwards file a 256-page -- or 256- paragraph -- whatever it is -- or 256 counts -- THE COURT: 254-page -- MR. SCAROLA: Whatever it is. Why does he file this lengthy federal case? Was that really as an effort to try to gin up these cases for purposes of participating in a Ponzi scheme or was there an independent legitimate basis for doing what he did? THE COURT: Of course, the interesting part of that is from the timeline, the complaint filed -- the federal complaint, 234-page federal complaint was filed after the settlement of three cases. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792925 116 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: No, sir. I don't think so. MR. LINK: No. THE COURT: I thought that the settlement was 7/6 -- I'm sorry. My bad.I was reading '09. The 7/27/09, and then 7/6/10. That was my error. MR. SCAROLA: Yes, sir. And you may recall -- we have already made reference to the timing of the filing of that federal case that we were obliged to file within two years after L.W. coming of age. She was about to celebrate her 20th birthday and it needed to be filed within that time. THE COURT: There were statute of limitations issues. Again, another counterpoint. MR. SCAROLA: Exactly correct. Absolutely. I am only suggesting to Your Honor that it is very difficult to be able to say as a blanket matter, I am not going to let in evidence of these other claims. THE COURT: Again, I am not taking that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792926 117 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 position yet. What I'm saying is that on a matter-by-matter basis -- and we are using Mr. Epstein's timeline and those pertinent events, which are noted therein -- if there were questions that relate to the NPA that were asked of Mr. Epstein and he did not answer based on Fifth Amendment grounds, the inclination -- again, without reading question by question, would be to allow that in, subject again, to the issue of multiple claimants, if you will, the 40 minors that you represented to the Court. But again, when we look at it from the standpoint of both sides trying to balance this as best I can under 403. On the one hand we have Mr. Edwards taking strike that -- Mr. Epstein taking the position that doing what was done by Jane Doe through Mr. Edwards as counsel was an attempt to publicize and to sensationalize the circumstances so as to increase the value of at least the claims that were held by the Rothstein firm. MR. SCAROLA: Which I think is what DRAFT ONLY !!!! NOT PROOFREAD EFTA00792927 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 every lawyer is supposed to do within the bounds of propriety, obviously. But our job is to maximize the value of our clients' claims. THE COURT: And on the other side of the coin is Mr. Edwards taking the position that the impetus -- or an impetus for filing the complaint at bar was the exposure of Mr. Epstein -- once again, to the ignominy of having to face the publicity of a non-prosecutorial agreement where there were admissions, where there were agreements -- perhaps not admissions -- but agreements that limited the prosecution of him as it relates to multiple claimants or multiple potential victims. So again, my ruling on that is if there are questions that have to do with this issue, globally they will be allowed to be asked subject to further argument as it relates to the multiplicity of the numerous victims that we are dealing with here as alleged. Same as it goes with this 234-page federal complaint. If there were any DRAFT ONLY !!!! NOT PROOFREAD EFTA00792928 119 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 questions that were asked of Mr. Epstein where he refused to answer on Fifth Amendment grounds, I find that the information would be relevant. Therefore, his failure to answer would be -- would be able to be utilized if such questions were asked of him regarding the 234-page federal complaint filed on behalf of L.M. by Mr. Edwards. MR. SCAROLA: Let me just clarify one point, and that is we have been focusing on questions that have already been asked of Mr. Epstein. Obviously, we have the right to call Mr. Epstein as an adverse witness. We have the right to put him in that witness chair in front of the jury, and to ask him questions that Your Honor has considered to be appropriate that may not have been asked at the time of his deposition. So I want to make it clear that we don't consider, nor do I understand Your Honor to be ruling that we would only be limited to asking questions already asked of him in his deposition. We would permitted to ask him any question, relevant and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792929 120 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 material to the claims that he has made against Mr. Edwards. And that as has been announced, we know he will be invoking his Fifth Amendment right. THE COURT: With the caveat and understanding that any reasonably sensitive type of question that is going to be construed as graphic -- reasonably construed as graphic, going to be questions about global conduct, should be run by the court first by way of a proffer. MR. SCAROLA: I understand the Court's concern. And I -- THE COURT: I am very, very cognizant of the fact that we are going to spending a significant amount of time both pretrial and at trial. And I do not want to get into a circumstance where we are going to be taking liberties at the expense of ensuring that a fair trial is provided to all. MR. SCAROLA: I am happy to make the commitment to the Court, because I understand your concern, and I recognize the sensitivity of these issues. THE COURT: Thank you. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792930 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 MR. SCAROLA: I will make a commitment to the Court that we will proffer in advance any question that we reasonably anticipate will invoke a Fifth Amendment privilege. THE COURT: All right. Let's move on then. Again, let's refocus back to some of these issues that are directly before the Court. MR. LINK: Your Honor, can I just clarify, because I don't want that to leave untouched and it's this. May I, Your Honor? THE COURT: Briefly. MR. LINK: Thank you. Very briefly. I want to be clear that we have not heard the questions, so I can tell you, without knowing what the question is, whether we will raise the Fifth Amendment or not. My commitment to the Court was the questions that were asked already were not going to change the assertion of the Fifth. THE COURT: I think that was a caveat to Mr. Scarola's recitation. MR. LINK: Thank you, Your Honor. THE COURT: Again, it is with the same caveat that I explained earlier, and that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792931 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 is, I am going to have both sides provide me with questions that -- well, really it would start with Mr. Edwards and Mr. Scarola providing your side with questions -- the specific questions that were asked that Mr. Scarola in good faith believes he will be asking at trial that have already been subject to invocation of the Fifth Amendment and/or attorney-client privilege or any other privilege, for that matter. All I've see are Fifth Amendment ad attorney-client privilege. There may have been a Fourteenth amendment or another amendment. MR. SCAROLA: Those questions will be elicited through Mr. Epstein's deposition, Your Honor. THE COURT: So what I'm trying to, again, give you global guidance as to how the Court intends to rule on some of these issues, but at the same time reserving the ability to be able to review the specific questions that with the Court's global guidance today are still subject to debate as to whether or not they are going to be DRAFT ONLY !!!! NOT PROOFREAD EFTA00792932 123 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 asked. For example, Mr. Scarola may have a list of 30 questions that after he has culled through the testimony he intends to ask -- strike that. He intends to publish before the jury by way of deposition utilization. If you find that any or all of those questions are outside the parameters the court has provided to you today, then it will be incumbent upon you to bring those before me and to -- MR. LINK: Judge, I understand. That's a fair procedure. THE COURT: -- and I will entertain further argument or I may not entertain further argument. I may just rule on it pursuant to the law that I have and what I perceive to be the appropriate rules of evidence. MR. LINK: Understood. That procedure is very clear to me. THE COURT: So let's go back now -- I want to give Mr. Scarola his opportunity -- is there anything else specifically that we DRAFT ONLY !!!! NOT PROOFREAD EFTA00792933 124 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 need to talk about now on Fifth Amendment issue? Because most of these other exhibit matters we can handle those -- we can handle them today, if you'd like to. But we don't need to handle them in conjunction with the Fifth Amendment issue. Things like massage tables and messages from notepads in Epstein's homes, flight logs, things of that nature, don't really get into necessarily Fifth Amendment issues. MR. LINK: We agree. THE COURT: So why don't you go ahead, Mr. Link. I want to give you an opportunity to rebut. MR. SCAROLA: Your Honor asked if there were other specific matters relating directly to Fifth Amendment. And the financial discovery raises Fifth Amendment issues that need to be discussed. THE COURT: Okay. We can do that after we get finish with Mr. Link's rebuttal on the global Fifth Amendment issues that we've dealt with thus far. Thank you. MR. LINK: Okay, I'm going to pick up a couple pieces of -- Your Honor, I just want DRAFT ONLY !!!! NOT PROOFREAD EFTA00792934 125 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 to touch on a couple pieces of the presentation, then I will go back to where I want to go. You asked about this timeline. And it doesn't say that it had anything to do with setting aside the NPA. This timeline says this. Jane Doe moved to unseal the NPA. And the reason that that caught Mr. Epstein's attention was because Mr. Edwards and Jane Doe already had it. They had a copy of the NPA, so why would they want it to be unsealed. THE COURT: For the same reasons that we discussed earlier -- Mr. Scarola was rather blunt about it -- and that is that doing that will enhance the value of the claims made by the three pseudonym plaintiffs. MR. LINK: Maybe. THE COURT: It may be. And I grant you that. But it also could inflame Mr. Epstein, potentially, as well. It also could provide Mr. Epstein with bona fide good faith motivation that he thought that this was resolved and now it's being opened DRAFT ONLY !!!! NOT PROOFREAD EFTA00792935 126 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 up again, so I can see both sides. MR. LINK: No question. That's what takes us to the Fifth Amendment and what we're talking about. And that that's this. Everything that was just discussed has to do with the truth -- with the truth of the allegations that are contained in Epstein's complaint against Mr. Edwards. What Mr. Scarola wants to do and what Mr. Edwards told us in his deposition, is they want to show the world that those allegations were untrue. THE COURT: Which allegations? MR. LINK: The allegations Mr. Epstein filed against Rothstein and Edwards. THE COURT: That the allegation as it relates to the claims by the three pseudonyms plaintiffs? MR. LINK: No, sir. THE COURT: Start again. I am not following you. MR. LINK: So there was a lawsuit filed by Mr. Epstein. He sued Rothstein and he sues Edwards. THE COURT: And L.M. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792936 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 MR. LINK: And L.M. In that claim, if you read it fairly, you will not find an allegation that says that the three plaintiffs Mr. Edwards represented fabricated their claim. What you will find, Your Honor, when you read it, is that it says that those three cases were used to entice investors to invest in other cases. They also say in this complaint very clearly, that those three cases -- those three cases, the value of them -- the value -- not the legitimacy of filing them -- the value. THE COURT: That's not what it says. Paragraph H, which I will read for a third time says, quote, Rothstein and the litigation team -- which I'm assuming that included Mr. Edwards -- knew or should have known that their three filed cases were weak and had minimal value for the following reasons. MR. LINK: Yes. I agree with that. And I think any questions about that -- right -- any questions about that would go to whether that statement is true. But it DRAFT ONLY !!!! NOT PROOFREAD EFTA00792937 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 doesn't say -- it says they were weak. It doesn't say that they were ginned up. It doesn't say they were fabricated. It doesn't say any of the words that Mr. Scarola told you it said. It said that they should have known -- remember what I said, it follows the $500 million paragraph. If you relate it to the $500 million, they should have known that these cases weren't worth $500 million. But it doesn't not say anywhere in this complaint that Mr. Edwards fabricated those three cases in 2008. It doesn't say that anywhere. It doesn't say it anywhere. I absolutely agree -- I absolutely agree it says they were used by Rothstein to attract investors. Rothstein lied about those cases. Mr. Edwards candidly told us in his deposition that Rothstein used his cases -- Mr. Edwards' cases -- and fabricated claims about them in settlements. THE COURT: And the point is what? MR. LINK: The point is this. What Mr. Scarola wants to try to the jury is this DRAFT ONLY !!!! NOT PROOFREAD EFTA00792938 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 case right here. He wants the jury to hear the case that settled, these three folks to get on the stand and say that they were physically abused when they were minors. And if that is true -- that's what he tells us -- plaintiff Edwards starts -- my proving the truth of the claims he brought on behalf of them. If he does that, if he proves their underlying claim, he now has lack of probable cause. It's a disconnect. Because lack of probable cause has to do with Edwards' (sic) state of mind at the time. THE COURT: Edwards or Epstein? MR. LINK: Epstein. We have all done it four times. Epstein. Epstein's state of mind, and only his state of mind. I am competent if this case was tried -- this is the Epstein versus Rothstein and Edwards -- that Mr. Edwards will get on the stand, and he would tell the jury all the reasons why he did what he did. And they may believe him. But whether he had a legitimate reason or not, isn't relevant to whether Epstein had DRAFT ONLY !!!! NOT PROOFREAD EFTA00792939 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 probable cause. THE COURT: Let's focus on the Fifth Amendment issues. MR. LINK: Well, that's why it's important, because if you asked Mr. Epstein a question -- if you asked him a question that goes something like this, Did you touch E.W.? And sanitize it. Don't put anything graphic. Did you touch E.W.? what does that question -- it would be relevant here. He asserts the Fifth, relevant to this case (indicating), Judge. He asserts the Fifth, how is that relevant to the reasons in his head about why he decided to sue Rothstein and Edwards? How can it be relevant to that? THE COURT: If you asking me, as opposed to being rhetorical, I can answer it simply. MR. LINK: Both. THE COURT: This is pre-settlement, the filing of this lawsuit at bar, okay? MR. LINK: Yes. THE COURT: His strike, if you will, is a preemptive one on virtue filing of this DRAFT ONLY !!!! NOT PROOFREAD EFTA00792940 131 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 lawsuit. MR. LINK: That could be his motive. I agree. THE COURT: That's a simple answer. MR. LINK: Well, but that goes to motive not probable cause. Remember, the motive ties into the malice element. THE COURT: I understand. But the plaintiff in the malicious prosecution claim, Mr. Edwards, has the ability, through direct and circumstantial evidence, to be able to put on a case as to what was Mr. Epstein's reason. Why did he do it? To contradict Mr. Epstein's contentions. And, in my respectful view, one of those motives -- if you're asking me -- which you have -- and you suggested that you have -- MR. LINK: I have. Go ahead. I need teaching all the time. THE COURT: It's not teaching. It just a common sense logical thought that the reason why you bring a lawsuit like this that constitutes somewhere in the neighborhood of 35 pages where you are DRAFT ONLY !!!! NOT PROOFREAD EFTA00792941 132 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 claiming after this -- shortly after this law firm blew up -- MR. LINK: Correct. THE COURT: -- and everybody is scrambling. Nobody knows what's going on. Federal agents are raiding the offices, including, I presume, Mr. Edwards' office. MR. LINK: Yes. They took the Epstein case boxes. THE COURT: This is filed in 2009. The number 40,800 -- give you an idea of how many foreclosure cases we had back then. But the bottom line is it's -- I don't know if it's on this timeline -- the lawsuit is noted as to when it was filed. MR. LINK: 12/7/09. THE COURT: 12/7/09. Rothstein is arrested on 12/1/09. A week later (sic). MR. LINK: A week before. THE COURT: A week before. Exactly. Excuse me. A week before. Razorback complaint is filed 11/20/09. Things are, what I would, again, perceive, if you are asking me -- MR. LINK: I am. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792942 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: -- to be at the zenith of stress and tension. MR. LINK: I agree. THE COURT: Here is something that is filed that, at least arguably could be suggested, was trying to get to Mr. Edwards at his weakest moment. MR. LINK: How about if for purposes of today I agree with you that was the motive. I am going to agree with you. Let's say, Your Honor, you are exactly right. For purposes of today that was the motive. What does that have to do -- this is the whole Fifth Amendment -- what does that have to do with this (indicating). THE COURT: With probable cause. MR. LINK: Probable cause. Because here is what probably cause -- THE COURT: Did he have probable cause to file this lawsuit when he did? MR. LINK: When he had the most evil of intent. THE COURT: You said it, not me. MR. LINK: Only for purposes of today. THE COURT: You asked me what my DRAFT ONLY !!!! NOT PROOFREAD EFTA00792943 134 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 perception could be -- MR. LINK: Yes, sir. THE COURT: -- and what this jury's perception, more importantly, could be. Because again, any answers that are given my this Court are what I perceive based upon 35 years of doing this work, as a trial lawyer and a trial judge, and seeing hundreds of jurors and how they would go about their work. MR. LINK: You're older than I am. I didn't think that was possible. THE COURT: So that's where I think my frame of reference is. NR. LINK: And I appreciate it. And I appreciate it. And I'm agreeing with you, when you look at the element with what you just described could potentially be evidence of malice. According to the jury instruction and the case law is it cannot be evidence of probable cause. Here is one of the disconnect. I heard Mr. Scarola tell you the two statements he wants to focus on. What he is telling you in a subtle way is that he wants to have a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792944 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 defamation case. Publication of two statements, falsity. And then he said to you, then the burden shifts, which it does in a defamation case. He used the defamation words: truth with good motive. This is not a defamation case. It doesn't matter. It doesn't matter if they have all the evidence in the world that they would have won, they would have had a land-slide victory, if the Epstein versus Rothstein and Edwards case was tried. It doesn't make any difference, because the focus has to be in December 2009 was there enough information. I'm not saying, Judge, if you were the lawyer if you would have brought it, or whether I would have brought it, but it was brought. And question is, was there enough information available that a reasonable person would -- could have reasonably brought this claim when they did. The timing can be suspect. The motive can be suspect. The malice can be suspect. But if there's enough information and logical inferences, then you don't have a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792945 136 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 failure of probable cause. And the reason that's important under Fifth Amendment is if these three plaintiffs come in and testify, then essentially what we have -- we are trying the very original case that was filed in 2008, because I have to then cross-examine them on all of their claims and their damages and their health condition, and whether they had done prostitution before, and all of the other things that would have been tried in that case. So then if we open the door to 40 other people, we are going to have 43 sexual molestation cases. THE COURT: I'm not suggesting we are doing that. Again, this is not the work of Mr. Scarola. This is not the work of Mr. Edwards. This is not the work of you or Ms. Rockenbach. This is the work of Mr. Epstein -- MR. LINK: I agree it is. THE COURT: -- making these allegations in subparagraph H, 1 through 3 -- some weird tiny numbers. H, 1 through 3. He's, with DRAFT ONLY !!!! NOT PROOFREAD EFTA00792946 137 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 all due respect, stuck with these allegations. He's stuck with this lawsuit. He's stuck with the claims are contained therein and the allegations that are contained therein. MR. LINK: Absolutely. I agree 100 percent. But what are we stuck with? That's the question. Are we stuck trying this case, Judge? Or are we stuck trying to prove to a jury that based on the information that existed, that we had reasonable basis to bring a civil proceeding? Because that's what it talks about. It doesn't say what claim did you bring? What count did you bring? What statements did you bring? It is a civil proceeding. THE COURT: Right now, though, Mr. Link, we're concentrating on the Fifth Amendment issues. There is not a motion in limine in front of me at this juncture as to the 40 other -- or the 40 in total alleged victims. There is not a motion in front of me regarding how far we are going to go with regard to the trial -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792947 138 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. LINK: Fair enough Judge. THE COURT: In regard to the claims of the three litigants represented by Mr. Edwards. MR. LINK: Your Honor is 100 percent right. I appreciate you indulging me to answer some of the questions that's were on my mind. And I am appreciate that. Where we would like to go next, Your Honor, if the Court has time -- or we can take it up next time -- are those things that were on the exhibit list and witness list. One of the things we don't know, based on the rulings so far, is will E.W., L.M. and Jane Doe be taking the stand, because that's part of the motion in limine what we have been talking about. THE COURT: Are they listed as witnesses? MR. LINK: Pardon me? THE COURT: Have they been deposed? MR. LINK: They have not been deposed in this case. THE COURT: I presume they are listed DRAFT ONLY !!!! NOT PROOFREAD EFTA00792948 139 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 witnesses. MR. LINK: They are listed as witnesses. MR. SCAROLA: Your Honor, I'm sorry -- MR. LINK: Were they deposed in this case? MR. SCAROLA: One of them was deposed. MR. LINK: I'm sorry. MR. SCAROLA: One of them was deposed in this case just recently. MR. LINK: I thought that was -- oh, yes. You're right. Sorry about that. One out of two. MR. SCAROLA: And the only one noticed to be deposed. MR. LINK: And that's an issue that you told us to come back to you on, Judge. Because if they are going to called -- I don't know if they are -- but if they are going to be called, then I would like the opportunity to depose those two. THE COURT: What I said somewhat off the cuff, but not as articulate as the Second District Court of Appeal in the case of Liabos versus Harman -- L-I-A-B-O-S. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792949 140 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 Harman, H-A-R-M-A-N 215 So.2d 487 was what I intended earlier, just so that we are all clear on the issue of probable cause, at least as it relates in this case in my relatively quick word search. It says, "It should be first noted that the lack of probable cause is a mix question of law and fact -- I will omit the citation -- that is to say when the facts relied on to proving lack of probable cause are in dispute, their existence is to determined by the jury as a question of fact. Their legal effect, on the other hand, is determined -- to be determined by the Court, but only after these facts are admitted to found -- are admitted or found to be true. MR. LINK: Yes. That's right. We are in complete agreement, which is, if the facts we say we relied on in bringing this claim -- if there's a dispute about one of those facts and whether we rely on it, then we would have a jury trial, and the jury would determine whether we relied or not. The Court would then take the 10 pieces of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792950 141 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 information that was relied on and decide if that was enough. You may agree it is, you may agree it is not, Judge. It's going to be your call. THE COURT: Let's go back to the Fifth Amendment issues and deal with those now. You have gotten my global rulings on the issues. I am going to review the individual questions that are intended to be reasked or to be published by the counter-plaintiff Edwards at trial as it relates to Mr. Epstein's invocation of the Fifth Amendment and the related privileges that he is claiming. I don't want to be hamstrung by this record as only dealing with Fifth Amendment. Anything that's in his deposition that has been objected to on privilege grounds. MR. LINK: Thank you, Your Honor. We appreciate it. THE COURT: Thanks. What I would like to then get into next are some of these exhibits. If we can deal with those now, let's go ahead and do that. We will use the next hour or to take care of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792951 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 those please. MS. ROCKENBACH: May I approach the bench, Your Honor? THE COURT: Sure. MS. ROCKENBACH: I have a copy of Mr. Edwards' amended exhibit list. And those items that are highlighted -- some of which Your Honor has already mentioned -- this would be related to paragraph B -- or item B in the revised omnibus motion in limine on page 22. Mr. Epstein has raised both and asserted both relevance, 90.401 and the gatekeeper function of the Court, probative value, prejudicial effect of 90.403. Some of the examples that Your Honor had mentioned, I think, was a massage table, which was number 59. But if we start at the front, there is an order confirmation from Amazon for the purchase of a book entitled "Slave Craft: Workbook for Erotic Slaves and their Owners." Completely irrelevant, prejudicial, has zero probative value whatsoever to do with the malicious prosecution action. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792952 143 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 same is true -- and I have highlighted all of these -- they are really grouped, Your Honor. Some of them are just so outrageous when you read them, such as the erotic book, sex offender registrations, massage table, school records and year books of Jane Doe and -- unidentified year books just of Royal Palm Beach. Flight logs, evidence of contributions to Palm Beach Gardens Police Department. And there are some articles, which leads me very quickly -- and I think we can probably -- I hate to jump, but I think, based on Your Honor's ruling, it's possible that Mr. Scarola will agree to item C in the motion in limine, which relates to derogative adjectives when referencing my client. Based on the rulings that you have made this morning, I believe that Mr. Scarola probably would agree not to refer to Mr. Epstein as convicted child molester, billionaire pedophile or the like. THE COURT: Well, billionaire pedophile, I agree is subject to argument. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792953 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 But convicted child molester, Mr. Scarola. MR. SCAROLA: That is an accurate description of Mr. Epstein. It is a description, which I believe appears in some of the newspaper articles that Mr. Epstein alleges he relied upon to form a reasonable belief that Bradley Edwards was a participant in these -- in this Ponzi scheme. THE COURT: Did he take a plea of guilty? MR. SCAROLA: Yes. He entered a plea of guilty to two felonies. He is a registered sex offender here in -- THE COURT: I just want to make sure it was a guilty plea, as opposed to a nolo or -- MR. SCAROLA: No. It was a guilty plea, Your Honor. Under the non-prosecution agreement with the federal government, he was required to plead guilty to two state court felonies. THE COURT: Mr. Goldberger, did you want to comment on that? MR. GOLDBERGER: Thank you, Your Honor. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792954 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 Just for a point of clarification, neither of the counts that Mr. Epstein pled guilty to are, quote, those that suggest that he's a child molester. It was procuring an underaged for prostitution. That's the count. So the suggestion by counsel for the counter-plaintiff that he is somehow a child molester, there's just no basis in the guilty plea that he entered. Now, he is a registered sex offender subject to a 403 analysis. Perhaps counsel will be able to go there. But there's no evidence to support, based on the documents and on the guilty plea that he's a child molester. He simply didn't plea guilty to anything factually related to that. THE COURT: Tell me exactly what he pled guilty to. MR. GOLDBERGER: Let me get the document, if I can -- THE COURT: Sure. MR. GOLDBERGER: -- Your Honor, so there's no mistake. Solicitation for prostitution, procuring someone under the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792955 146 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 age of 18 for prostitution. MR. SCAROLA: Three someones, which made it a felony, correct? MR. GOLDBERGER: Yeah. Solicitation of prosecution requires three individuals before it goes from a misdemeanor to a felony. THE COURT: Even if it's under the age -- alleged victim is under the age of 18? MR. GOLDBERGER: That's the other count that he pled guilty to. Solicitation of prostitution of someone under the age of 18. The solicitation for prostitution, in order to make that a felony it requires three separate incidents. But none of those success factually in any way the facts that he was a child molester. That's the point that I think my co-counsel is trying to make. THE COURT: Convicted child molester is the term that was used. MR. GOLDBERGER: And that's simply not factually correct. THE COURT: Anything else, Mr. Scarola? MR. SCAROLA: Since we are dealing with DRAFT ONLY !!!! NOT PROOFREAD EFTA00792956 147 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 this in the context of Fifth Amendment assertions -- THE COURT: No, we are dealing with this as a matter of a portion of the omnibus motion in limine. MR. SCAROLA: Then I don't have any further comment. THE COURT: The objection is sustained. The motion is granted. As I understand it in reviewing the case law recently, the guilty plea would be admissible. The registration of sex offender, I am going to need some additional briefing on. MS. ROCKENBACH: And believe me, I've done that, Your Honor. I'm not sure we can take it up today. But Mr. Edwards asked this Court to take judicial notice of it and we have supplied a response. THE COURT: I can only go through so much material within the time -- MS. ROCKENBACH: I know. I think we only addressed part C of the motion in limine. I hoped it would be quick, that's why I brought it up. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792957 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 THE COURT: Off the record. (A discussion was held off the record.) MR. SCAROLA: Getting back to the ruling Your Honor just made, I certainly have no intention of referring to Jeffrey Epstein as a convicted child molester when his convictions did not expressly relate to child molestation. It was solicitation of prostitution, multiple solicitations for prostitution. I will be sure that I accurately refer to those things when I make reference to them. THE COURT: Of a minor? MR. SCAROLA: Of minors. THE COURT: My understanding of the case law it's clear that the plea is admissible. MS. ROCKENBACH: Your Honor, maybe we should take that up. And I guess we are going to skip exhibits for a minute, because this is too important to just gloss over. THE COURT: I don't know if it has been briefed, at least in the briefs that -- MS. ROCKENBACH: Probably not the way we would like, but we don't want to paper DRAFT ONLY !!!! NOT PROOFREAD EFTA00792958 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the court. Pages 26 and 27 deal with the derogatory adjectives. That is somewhat along those lines. But where I think Mr. Scarola is going is 90.610 of the Florida Evidence Code, which indicates that when Mr. Epstein is on the stand he can be asked, Have you ever been convicted of a felony? The answer, Yes. But the identity of that felony is not admissible, and that is part of the evidence code. So I'm not sure -- Your Honor is correct, this has not been fully briefed, because all that I anticipated were these two very inflammatory terms. THE COURT: The distinction, though, Ms. Rockenbach, that I would respectfully make -- and I'm not going to suggest that I'm an authority on this particular area -- is that typically that question is asked for one of credibility. Meaning, have you ever convicted of a felony or a misdemeanor involving moral turpitude. MS. ROCKENBACH: Correct. THE COURT: If the answer is yes, the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792959 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 next question is how many times. If there is any falsity to any of those -- either of those responses, then the requesting party has the opportunity to provide the Court, and potentially the jury, with counter-evidence typically in the form of certified copies of convictions. MS. ROCKENBACH: That's correct. THE COURT: Now, that's a lot different than in this case, where we are not necessarily talking about merely credibility. What we're talking about what in essence -- if not the heart, certainly near the center of the entire case. In other words, but for the fact that -- at least, but for one of the facts that Mr. Epstein was convicted, the context of a malicious prosecution claim and the context of the contentions that would be made by Mr. Edwards relating to the malicious prosecution claim would be that his conviction and his legal peril were part of his reasons for bringing the case against Mr. Edwards. So this is not merely an issue of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792960 151 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 testing credibility of any given witness. As I understand it, just about any witness can be asked those questions. This is more of an issue of a fact central to the presentation of the case. MS. ROCKENBACH: Your Honor, Mr. Epstein's guilty plea was June 30th, 2008. His lawsuit against Mr. Edwards was December 7th, 2009. So the guilty plea was entered at least a year and a half before he sued Mr. Edwards. And my concern with this under the impeachment part of the Florida Evidence Code 610.5 -- I am going to quote from Ehrhardt, 2016 version, "When a witness who testifies as a criminal defendant there is a danger" -- we are not even a criminal defendant. We are not even trying the criminal case -- "but there's danger that the jury will consider the convictions, which are admitted only to impeach as evidence the defendant is a bad person. The concern is greater when there are number of prior convictions." There's on one. But the point is, this is bad character DRAFT ONLY !!!! NOT PROOFREAD EFTA00792961 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 evidence under 90.404. It's improper impeachment under 90.610. And we absolutely oppose and object to the guilty plea coming into evidence. It has no relevance to the issue of why my client filed a malicious prosecution action a year and a half after he pled guilty. THE COURT: Mr. Scarola. MR. SCAROLA: Ms. Rockenbach is incorrect that we would seek to admit this evidence solely under 90.610. Because under that provision of the evidence code, we would be restricted to, Have you ever been convicted of a crime? How many times? I understand that entirely. And that's strictly a matter of credibility. However, the issue that we have the burden of proving is an issue of probable cause. And that involves, as we have explained in great detail, an analysis of what Mr. Epstein knew. Part of what Mr. Epstein knew when he sued Bradley Edwards is that he was guilty of multiple crimes involving sexual activity with minors. That's part of what he knew. He DRAFT ONLY !!!! NOT PROOFREAD EFTA00792962 153 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 pled guilty to that. Now, he was asked in deposition, Who are the minors that you pled guilty to? Objection. Fifth Amendment. I refuse to answer on the ground that it may tend to incriminate me. those people. Well, we can draw an adverse inference He refused to identify from that. And the adverse inference we draw is that the three people were L.M., E.W. and Jane Doe. Now, he can get up and try to rebut that adverse inference through something other than his own testimony, because through his own testimony he has foreclosed any further evidence coming from him. But if there's some independent source where he can suggest to the jury that this is not a proper inference to draw. He wasn't pleading guilty to crimes committed against these three young women -- these three children at the time -- then he can do that. But it is relevant and material to the issue of probable cause because he admitted sexual offenses relating to children and refuses to can DRAFT ONLY !!!! NOT PROOFREAD EFTA00792963 154 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 identify in the context of this case who those children are. So this isn't just propensity. This isn't bad character. This is evidence that is directly material to an element of this case that we are obliged to prove. So your Honor's reaction was absolutely correct. There are other reasons why this comes in in the context of this case. Thank you, sir. MS. ROCKENBACH: Your Honor, may I reply? THE COURT: Sure. MS. ROCKENBACH: In Mr. Epstein's deposition March 17th, 2010 on page 103, Mr. Scarola asked him, line 23, "Who is the minor that you procured for prostitution? And the answer is, "I do not know." Let's get back to the probable cause issue. MR. SCAROLA: I'm sorry. I do stand corrected. I am remembering now that that was his response. It wasn't the Fifth Amendment assertion. It changes none of the arguments I've just made. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792964 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 THE COURT: I understand. MS. ROCKENBACH: Your Honor, the issue of whether my client pled guilty to prostitution with one minor or not is not relevant to what facts and circumstances. And that's the phrase of all the cases reported. What facts and circumstances were known to Mr. Epstein when he filed his malicious prosecution. And the Wright versus Yorco (phonetic) case. We haven't talking about it, but -- THE COURT: I'm familiar with it. MS. ROCKENBACH: I'm sure, Your Honor. -- both sides cited it. And it talks about what constitutes that probable cause. The public record. The public record. So my client can rely on two parts. Rely on firsthand knowledge or trustworthy information provided to him. That's the Razorback lawsuit. That's Mr. Bill Scherer, the Fort Lauderdale attorney being quoted by the newspaper as saying that Epstein -- Rothstein didn't act alone. It's the head of the South Florida FBI saying this was not a one-man show. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792965 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 The issue of my client's plea of guilty, has nothing to do with his probable cause of whether he believed Mr. Edwards was in connection with Mr. Rothstein in puffing up the claims. THE COURT: One thing I appreciate the appellate courts doing recently is writing, somewhat extensively, on the fluidity of motions in limine, and the fact that until the Court can digest at trial all of the facts that are being presented in putting these things into context, it makes it somewhat difficult, and recognizes the trial court's difficulty in dealing with some of these motions and some of these issues without context. But, in my respectful view, the flaw of the argument from its inception -- again, I'm not trying to be disrespectful -- but the flaw in the argument is what I perceive to be a lack of recognition of, not only Mr. Epstein's rationale for filing his suit, but the focus, or lack thereof, on Mr. Edwards' responsibility and burden a strict one, and a strong one according to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792966 157 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 onerous -- used by one of the cases in being able to prove probable cause here. And Mr. Scarola has used in his briefing this building blocks approach. And I think the same type of analogy or picture can be utilized here when speaking about the motive. What was the probable cause in actuality from the counter-plaintiff Edwards' standpoint for Epstein doing what he did. As I indicated before, but didn't use the analogy, what you and Mr. Link provided to the Court provides, not only building blocks for potentially Mr. Epstein's probable cause, but likewise provides building blocks for Mr. Edwards' proving that he did not have probable cause. And as far as the Court is concerned, if the guilty plea came after he filed suit, then there might be some reasonable argument to separate it out and say, Judge, he hadn't even filed suit -- the suit was filed -- strike that. He hadn't pled guilty. The guilty plea came three years after he filed this suit DRAFT ONLY !!!! NOT PROOFREAD EFTA00792967 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 for malicious prosecution, then it would probably be a relevancy argument that may or may not win the day. But when looking at it from a building block type of analysis, as I have in the most simplest terms, in looking at it from both sides, which I am incumbent to do, as Mr. Scarola alluded to, this is but one item that could be argued to have fueled Mr. Epstein to have filed this lawsuit, thus making it relevant. Now, the fluidity issue that I spoke about is, I'm willing to look at it, again, if there's a case on point that specifically says otherwise. But for purposes of this particular matter, the Court would find absent the production of a case that would say otherwise, that Mr. Epstein's guilty pleas -- I understand it's combined, so I'm not suggesting there were more than one combined plea -- would be relevant, that it would be relevant to the issue of probable cause, and it would be relevant, potentially, to the issue of malice. And that, again -- with the Court DRAFT ONLY !!!! NOT PROOFREAD EFTA00792968 159 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 at it from both sides, and analyzing it from both sides, it could be used by Mr. Epstein. It could be used by Mr. Edwards. But it provides, at least, some relevancy, defined again as proving or tending to prove or disprove a material fact. The material fact is the element of probable cause and perhaps malice. So again, I am going to rule that they would be admissible. Next issue, please. But again, we are going to completely and entirely stay away from any type of pejorative comment. I understand that sometimes things are said in the heat of deposition that would never be repeated at trial. Again, I'm certainly ordering that that not take place. All right. We want to go back to some of these -- in the time that we have left, let's go back to some of these exhibits and see if we can work through them. MS. ROCKENBACH: Thank you, Your Honor. We had identified and have highlighted, starting with number three, photographs and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792969 160 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 information of Mr. Epstein's homes, planes automobiles. I'm not sure what relevance that would have as to why he filed a malicious prosecution action. THE COURT: Let's take them one at a time. Mr. Scarola, what's your position? MR. SCAROLA: His homes and his automobiles are evidence with respect to his pecuniary circumstances. Obviously a relevant matter when we are talking about a punitive damage claim. THE COURT: Typically, though, net worth is what is considered, not necessarily -- unless it's impeachment, i.e., you'll have a picture of a home that he owns in the US Virgin Islands -- I think that he has some connection with one of those islands -- and I'm not trying to suggest anything as far as anything inappropriate -- but I can conceive of this situation that if Mr. Epstein testifies that his net worth is X comprised of A, B and C in large part, but you find an asset that he has not taken into account that's worth DRAFT ONLY !!!! NOT PROOFREAD EFTA00792970 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 twice as much of his claimed net worth -- MR. SCAROLA: I know he has a minimum net worth of -- I don't mean to interrupt, Your Honor, but Mr. Epstein refuses to provide any evidence with regard to his net worth, so we are obliged to offer circumstantial evidence of his net worth, unless and until those objections based on Fifth Amendment grounds are overruled on the basis that they are non-testimonial. THE COURT: I think that's a subject for another motion. MS. ROCKENBACH: It is, Your Honor. MR. SCAROLA: It is. But Your Honor should not be deciding this issue on the basis of the premise that we are going to get evidence from Mr. Epstein as to what Mr. Epstein's net worth is. THE COURT: Agreed. MR. SCAROLA: All he has told us is he's willing to stipulate to a net worth in excess of $100 million. Well, it makes a difference as to whether it's 100 million, 200 million or a thousand million, that is a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792971 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 billion dollars, or $2 billion. So even if we're left with a Fifth Amendment assertion, we are back to the same issue that was raised by the defense, and that is, there needs to be some evidence independent of the Fifth Amendment assertion that would allow the inference to be -- THE COURT: I'm going to cut you off. I'm going to defer on number three. Number four is the Amazon receipt for the "SM 101: A Realistic Introduction, Slave Craft: Roadmap for Erotic Servitude-Principles, Skills and Tools" and Training Miss Abernathy. A Workbook for Erotic Slaves and their Owners." MR. SCAROLA: I never read it. Your Honor, if I might -- MS. ROCKENBACH: It has no relevance, Your Honor. Prejudicial. Should not be discussed, referenced, admitted. I think it's also a receipt from Amazon for the book, by the way. It's an order confirmation. If my memory serves correct, it's a receipt for the purchase of a book. It has nothing to do with malicious DRAFT ONLY !!!! NOT PROOFREAD EFTA00792972 163 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 prosecution. THE COURT: Mr. Scarola. MR. SCAROLA: In fact, it does. I might explain to Your Honor that many of items that on this list that are being challenged, a vast majority of them, were part of an appendix to the motion for summary judgment that was not defended against by Mr. Epstein. THE COURT: Let me ask you this. Was this particular exhibit located prior to the suit being filed by Mr. Epstein? MR. SCAROLA: Yes, sir. MS. ROCKENBACH: It's the receipt located by whom? THE COURT: By anybody. For the purposes of this case. MR. SCAROLA: These are items -- THE COURT: In other words, was it discovered in a lawsuit that was filed prior to Mr. Epstein filing this suit? MR. SCAROLA: No, sir. It was discovered when a search warrant was executed by law enforcement shortly after the criminal allegations were made against DRAFT ONLY !!!! NOT PROOFREAD EFTA00792973 164 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. Epstein before any of the civil lawsuits were filed. So law enforcement gets probable cause to execute a search warrant on Mr. Epstein's home. And one of the things that is found -- or many of the things that are described here, are found during the course of the execution of that search warrant and formed probable cause for the criminal charges against Mr. Epstein. Even more significantly, they formed the basis for the civil lawsuits that were filed on behalf of L.M., E.W. and Jane Doe. That is, this is all evidence taken into account in substantiating the validity of the claims of these three particular victims of Mr. Epstein. And all of these things are delineated in the motion for summary judgment that Mr. Epstein does not defend against and voluntarily dismisses his case on the eve of the hearing. Your Honor is well aware of procedurally he would have been obliged well in advance of the hearing to file his DRAFT ONLY !!!! NOT PROOFREAD EFTA00792974 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 opposition to the motion for summary judgment. He doesn't do that. Why is that significant in the context of this case? Because, as we have heard from the defense, they are going to challenge whether there is a bona fide termination of the claim against Mr. Edwards in favor of Mr. Edwards. Was the abuse of process claim terminated under such circumstances as to indicate a bona fide termination? How do we make that decision? Well, the only way to make that decision is to talk about the motion for summary judgment, what supported the motion for summary judgment, and the fact that the motion for summary judgment was not opposed, a voluntary dismissal was taken, and the statute of limitations permitted to expire without ever refiling those claims. So as long as bona fide termination remains an issue, the motion for summary judgment is clearly relevant and material. And this is all part of the motion for summary judgment. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792975 166 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 Many of these things, in addition to that, forms the basis for the explanation of Mr. Edwards' conduct when he was a member of RRA, and demonstrate that he wasn't abusing process in any respect at all while he was prosecuting these claims. He was pursuing very relevant and material avenues of discovery reasonably calculated to lead to admissible evidence. So that's my full response to this. THE COURT: The objection is sustained on two grounds: on relevancy and also 403 analysis. I will entertain the introduction outside the presence of the jury, if it becomes necessary. The other concern I have is that at best it appears to sound like it may be impeachment on a collateral matter. Collateral to the summary judgment -- the summary judgment motion that was made and then not challenged. For those reasons, I'm going to sustain the objection at this time. Again, subject to context for being able to readdress it, if necessary. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792976 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 MR. SCAROLA: Number four is sustain? THE COURT: Yes, sir, for the reasons stated in the record. MR. SCAROLA: Understood. THE COURT: The NPA, I have already indicated that the inclination would be -- if properly predicated -- would be allowed. The Jane Doe, one of two complaints -- I don't see any -- what would be the grounds for objecting to that? MS. ROCKENBACH: I'm not sure what the relevance is. I'm not the proponent of the evidence, but I don't see what relevance there would be of Jane Doe's complaint. The relevance in this malicious prosecution action might be the allegations of this complaint, this action. But when we start bringing in other complaints as exhibits for a jury to read, I think that go far afield from -- THE COURT: This is the same Jane Doe or a different Jane Doe? MR. SCAROLA: Same Jane Doe. THE COURT: Overruled. Next issue. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792977 168 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: Excuse me, Your Honor. There are two Jane Does. This is Jane Doe 102. Jane Doe 102 was a Bob Josefsberg client. And just so I orient Your Honor with regard to this matter. Under the terms of the non-prosecution agreement, the federal court appointed Bob Josefsberg as counsel on behalf of all unrepresented victims to protect the interest of unrepresented victims turn the terms of the non-prosecution agreement. One of those multiple victims being represented by Mr. Josefsberg was an individual identified as Jane Doe 102. She has since been publicly as And the specific allegations in this complaint include the transport of Jane Doe Number 2 on Mr. Epstein's private jets to various homes owned by Mr. Epstein in various locations inside and outside the United States. THE COURT: She's expect to be a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792978 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 witness? MR. SCAROLA: Yes, sir. THE COURT: Live witness? MR. SCAROLA: Live. THE COURT: At this point I'm going to find that, if, in fact, she is a witness, that it would be cumulative, and hence I am going to sustain the objection on those grounds. MR. SCAROLA: May I just finish my argument as to why this complaint was of significance? Because she does -- she does allege in the complaint that she was molested onboard the airplane, and that she was prostituted out to third parties onboard the airplane, which provided the basis for Mr. Edwards seeking airplane logs and the testimony of pilots and the testimony of others identified in the flight logs as being present on the plane. THE COURT: That's fine. I don't have a problem with Mr. Edwards testifying. If it becomes an issue in terms of credibility or whatever it might be, then I will take another look on it. But on the basis of the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792979 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 arguments that I have heard, the objection is sustained for the reasons that I provided. MR. SCAROLA: Understood. Thank you, sir. MS. ROCRENBACH: Your Honor, before we leave, based on Your Honor's ruling, I would make an ore tenus motion for leave to depose , because now it has become clear that she is going to be testifying, based on Mr. Scarola's statement and Your Honor's ruling. THE COURT: Wasn't she scheduled to come to court from Australia? Wasn't that the lady? MR. SCAROLA: That's where she's living. She was scheduled to come to court. She was available to be deposed previously. They chose not to take her deposition. She has been listed as a witness for years in this matter. THE COURT: I have to do a written motion, but I want to be consistent with what I said recently, and that is that it's not -- the continuance is not -- and I DRAFT ONLY !!!! NOT PROOFREAD EFTA00792980 171 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 emphasize, not designed to be a wholesale reopening of discover, that the Court would take that up on an issue-by-issue basis. But, without pre-deciding anything, unless it can be demonstrated to the Court that there was unavailability, that there was a late filing, that there was some type of inability of a witness to testify, something along those lines. These witnesses have been listed for a lengthy period of time. Again, this was not the purpose of the motion that was filed and it was not the import of the order of the Court. Let's talk about number seven. MS. ROCKENBACH: Messages taken from message pads found at Mr. Epstein's home. THE COURT: What do the messages say? MR. SCAROLA: They relate to arranging sexual massages with minors. I can't tell you from memory -- but Mr. Edwards may be able to -- whether there are specific references to our three clients. THE COURT: Not to be overly technical or hypertechnical here, is Mr. Edwards DRAFT ONLY !!!! NOT PROOFREAD EFTA00792981 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 serving as co-counsel? MR. SCAROLA: Yes, Your Honor. I think I've told Your Honor before, we don't anticipate him taking an active role in the trial, but he remains as co-counsel of record in this case. THE COURT: Fair enough. Mr. Edwards, would you like to comment on that? MR. EDWARDS: Sure, Your Honor. The message pads include the names of many of the underaged females that visited and set up appointments at Mr. Epstein's home, including L.M., E.W. and Jane Doe. THE COURT: Have they been authenticated by Mr. Epstein? Or did he take the Fifth on that? MR. EDWARDS: He has taken the Fifth on questions related to that. They have been authenticated in other depositions by Detective Vicari, although those were taken in other cases. But he's an available witness who could testify as to the chain of custody: Where he found the message -- where he found the messages and how he DRAFT ONLY !!!! NOT PROOFREAD EFTA00792982 173 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 gathered them during the search warrant. THE COURT: The relevancy, Mr. Scarola? MR. SCAROLA: They clearly relate to the validity of the claims on behalf of these three victims of Mr. Epstein. They corroborate that these young women were there at his home on many occasions, and along with a large number of other underaged females who were being routinely molested by Mr. Epstein. MS. ROCKENBACH: Your Honor, may I relay? This is inflammatory. These message pads may be relevant had Mr. Edwards not settled the three lawsuits in which he represented those three women. But they are not relevant in the malicious prosecution case whether my client had probable cause to file this action or not, or malice. We are definitely getting far afield in terms of the exhibits. And it looks like -- and I understand why Mr. Edwards would want to try exhibits that were relevant to his clients' action because the exhibits that should be relevant in the malicious prosecution case are the facts and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792983 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 circumstance, or the lack of facts and circumstances on which my client relied in filing this lawsuit -- the civil action -- the civil proceeding. Message pads regarding these appointments are absolutely 90.403 prejudicial and not -- which prejudicial affect clearly outweigh any remote probative value in this action. MR. SCAROLA: It seems to me that we are going, unfortunately, around the same mulberry bush. The validity of the claims is an issue. In addition to that, the viability of the claims against Mr. Epstein from a criminal perspective is part of why he was so concerned about this non-prosecution agreement being set aside. He knew that there was a mountain of evidence that would prove that he was a serial child molester, that there were dozens and dozens of victims of his molestations, which were occurring multiple times a day, day after day after day. And the only way he could foresee at DRAFT ONLY !!!! NOT PROOFREAD EFTA00792984 175 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 this point in escaping the criminal exposure that was clearly going to result in convictions, because of this mountain of evidence available, was to scare off the one person who was challenging that non-prosecution agreement through the Crime Victims' Rights Act case. THE COURT: I'm going to defer on ruling on this. But it is not to be mentioned during opening statement. And it is going to be determined by the Court in the context in which I believe it would be necessary. And I'm concerned about first -- as I mentioned earlier on in another exhibits -- that this is collateral. That it would constitute impeachment on a collateral matter. Again, I don't want to get back into serial child molestation. I believe words to that effect were just utilized, so that's the reason for the ruling. I think that right now, based upon what I'm looking at, which is not the actual messages, but just the recitation of an DRAFT ONLY !!!! NOT PROOFREAD EFTA00792985 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 exhibit would be that there -- that any probative value would be materially outweighed by the prejudice. MS. ROCKENBACH: Thank you, Your Honor. We are working off of Mr. Edwards' exhibit list. And the next one is eight, documents related to Mr. Epstein produced by Alfredo Rodriguez. THE COURT: Alfredo Rodriguez was the houseperson, if I'm understanding? MS. ROCKENBACH: Yes, Your Honor. THE COURT: I don't know what that means. What specifically are we talking about? MR. SCAROLA: We're talking about a book that contain a list of Jeffrey Epstein's victims, their names and telephone numbers, as well as a number of other contacts that Jeffrey Epstein have, who through other evidence, were established to be regular guests in his home. These provided corroboration of the testimony of L.M., E.W. and Jane Doe. They provided evidence of the extent of Mr. Epstein's molestation of children, which DRAFT ONLY !!!! NOT PROOFREAD EFTA00792986 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 obviously supports the magnitude of the wrong in which he was engaged, which goes directly to the punitive value of the claims brought by L.M., E.W. and Jane Doe, that is, a jury faced with the task of making a determination as to the appropriate amount of punitive damages is instructed that they shall take into consideration the magnitude of the wrong, and that includes the total number of victims involved in the offender's wrongdoing. THE COURT: I presume that by the time the case was settled that I or a predecessor judge in that division had found a valid claim for punitive damages in terms of those case that we are dealing with here? MR. SCAROLA: Yes. There were multiple punitive damages claims pending. THE COURT: I would have expected so. I just didn't know the timing. MR. SCAROLA: Yes. MS. ROCKENBACH: Your Honor's question got us directly to the point. This is relevant evidence for punitive damages in Mr. Edwards' clients' cases, not in this DRAFT ONLY !!!! NOT PROOFREAD EFTA00792987 178 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 case. THE COURT: My concerns are, again, that we are going too far afield. And again, my best efforts to try to keep this as a level playing field when it comes to focusing on the claims that are made in this particular case, that being the malicious prosecution case. And while I know and I have already indicated, and I believe Epstein's counsel has conceded that it cannot be sanitized, and will not be sanitized, because it goes to many of the issues that are involved here, and by way of Mr. Edwards' recitations, through Mr. Scarola, the motives that Mr. Epstein may have had to file the action at bar. But at the same time I am going to rule in the same way as I did as to number seven, and, that is, that I find that under 403 that the probative value -- any probative value is materially outweighed by the prejudice involved. MR. SCAROLA: May I ask a rhetorical question, Your Honor? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792988 179 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Sure. MR. SCAROLA: When Mr. Epstein alleges that these cases were ginned up, when he alleges that asking in the complaint for $50 million was totally out of line and supportive of his conclusions that this was a fabricated claim constructed solely for the purposes of supporting -- knowingly supporting a Ponzi scheme -- when he alleges that these cases really had no significant value, how can we not talk about what the punitive damage value of the cases were and why they had enormous punitive damage value when they are claims relating to a vast number of molestations by a billionaire? THE COURT: Because we are dealing with the three cases that Mr. Edwards represented these three individuals. And to allow records, information about anybody else at this juncture would, in my view, be collateral to the allegations made by Epstein in his claim. And there's no contention here that Mr. Edwards, for whatever reason, went on some type of organized witch hunt so as to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792989 180 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 persecute or threaten Mr. Epstein with proof of other cases, proof of other alleged molestations, documents that are at issue or anything of that nature. MR. SCAROLA: That's exactly what was alleged, sir. It was alleged that Bradley Edwards was pursuing discovery with regard to molestations of other children that took place on an airline when none of Brad Edwards' clients were ever molested on the airplane. That he had no reasonable basis for doing that. THE COURT: Now, it seems to me we're engaging in a negative, proving up a negative. MR. SCAROLA: You lost me. THE COURT: You understand what I'm trying to say? MR. SCAROLA: No. THE COURT: None of Mr. Edwards' clients were molested on an airplane, then it seems to me to be conceding my point, and that is, then there's no reason for these other issues to be introduced, because there's nobody that Mr. Edwards represented DRAFT ONLY !!!! NOT PROOFREAD EFTA00792990 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 that was molested on an airplane. MR. SCAROLA: That's exactly my point, sir. That's the defense argument. THE COURT: Show me where that's -- MR. SCAROLA: That's the defense argument that this was irrelevant discovery. THE COURT: Show me where that's in the complaint about the other alleged victims. MR. SCAROLA: We'll have that for you in just a moment, Your Honor. THE COURT: Let me take a look at that and see how it may or may not be conjecture. MR. SCAROLA: While we are finding that -- we will have that for you in just a moment -- your Honor may recall that I referenced earlier -- and I have, unfortunately, misplaced the copy of the federal statute. I should have it -- I should have it in just a moment. THE COURT: I mean, I'm looking at paragraphs 17 and 18, for example, where Mr. Epstein alleges, while relative to this action, Epstein is currently named as defendant in three civil actions alleging sexual assault and battery that were handled DRAFT ONLY !!!! NOT PROOFREAD EFTA00792991 182 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by RRA and his attorneys, including Edwards, prior to its implosion -- presuming he means RRA's and not Mr. Edwards' implosion -- one of which was filed in federal court -- and the two in state court that I have already identified. The civil actions were filed in August and September of 2008. Paragraph 18 then says, quote, what is clear is a fraudulent and improper investment of a Ponzi scheme was, in fact, conducted and operated by RRA and certain of the named defendants, which scheme directly impacted Epstein as a named defendant in these civil actions -- referencing the three at issue. MS. ROCKENBACH: Correct. THE COURT: Where is -- MR. SCAROLA: Paragraphs 35 and 36. THE COURT: Let's take a look at those. Paragraph 35 states, quote, For instance, the litigation team relentlessly and knowingly pursued flight data and passenger manifests regarding flights Epstein took with these famous individuals knowing full well that no underaged women were on board DRAFT ONLY !!!! NOT PROOFREAD EFTA00792992 183 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 no illicit activities took place. Rothstein and the litigation team also inappropriately attempted to take the depositions of these celebrities in a calculated effort to bolster the marketing scam that was taking place, end quote. Next paragraph? MR. SCAROLA: Next paragraph. THE COURT: Quote, one of the plaintiffs' counsel -- strike that. One of plaintiff's counsel Edwards, deposed three of Epstein's pilots and sought the deposition of a fourth pilot currently serving in Iraq. The pilots were deposed by Edwards for over 12 hours, and Edwards never asked one question relating to or about L.M., E.W. and Jane Doe, RRA's clients, as it related to transportation on flights of RRA clients on any of Epstein's planes. But Edwards asked many inflammatory, leading and irrelevant questions about the pilots' thoughts and beliefs, which will never be admissible at trial, which could only have been asked for the purpose of pumping the cases, and thus by using the deposition to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792993 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 sell the cases or a part of them to third parties. End quote. Anything else? MR. SCAROLA: Those are two obvious references in the complaint to conduct on the part of Brad Edwards alleged to have been improper and forming part of the basis for abuse of process claims. THE COURT: The Court's ruling remains the same. MR. SCAROLA: I never like to argue after the Court has already ruled, but there is one additional point that I want to make. THE COURT: Sure. MR. SCAROLA: Your Honor, I have cited in -- we have cited in submissions to the Court, specifically the motion in limine addressing the scope of admissible evidence that we have filed. We have cited the provisions of Florida statute 90.404, subsection two, commonly known as the Williams Rule statute, which talks about evidence of other crimes. We have also cited the federal rule of evidence, Rule 415. And that rule expressly DRAFT ONLY !!!! NOT PROOFREAD EFTA00792994 185 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 permits the introduction in evidence of the molestation of other children in any federal action, criminal or civil, involving the molestation of a child. Congress explained -- and quote, That in the submission to the Court -- the reform effected by these rules is critical to the protection of the public from rapists and child molesters. It's justified by the distinctive characteristics of the cases to which it applies. "In child molestation cases, a history of similar acts tends to be exceptionally probative, because it shows an unusual disposition of a defendant, a sexual or pseudosexual interest in children that simply does not exist in ordinary people. "Moreover, such cases require reliance on child victims, whose credibility can readily be intact in the absence of substantial corroboration. "In such cases, there is a compelling public interest in admitting all significant evidence that will shed some light on the credibility of the change -- excuse me -- of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792995 186 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 charge and any denial by the defense." So -- THE COURT: And Mr. Scarola, if we were trying a sexual molestation case, there may be a stronger argument. But the very point that I'm making is that we're not trying a sexual molestation case, per. Now, there may be elements and issues that may arise, depending upon the nature of Mr. Epstein's position relative to these matters. However, it does not change the Court's view that these messages taken from a message pad at Epstein's home relate to others and that the documents related to Epstein produced by his houseman, Mr. Rodriguez, that relate to others, remains irrelevant. And any probative value, if found to be relevant, would be materially outweighed by the prejudice. The Court's decision remains the same. I think it's bolstered by the fact that we are not trying the child molestation case. And the significance of the collateral cases is not, in my respectful view, necessarily a touchstone of this particular case and this DRAFT ONLY !!!! NOT PROOFREAD EFTA00792996 187 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 particular analysis. We are going to have to call it a day. I thank you very much, again, for your arguments and your input, written and oral. Thank you, again. Again, thanks to our court reporter and our courtroom personnel also for their hard work and courtesies. Have a good rest of the week. We will see you back, if not before, on December 5th. MR. LINK: Thank you for your time. THE COURT: We will take up the remaining issues of evidence first, and then we will go back to the schedule, which I very much appreciate you all providing. We will adhere to that schedule as we continue on with the motions. We will be in recess. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792997