DS9 Document EFTA00793881

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case Ho. 502009CA040800XXXX303 i 2 3 THE COURT: Good morning. Have a seat. Thank you. Needless co say the recent barrage, as 3 4 opposed to flurry, of activity that has JEFFREY EPSTEIN, S transpired is of extreme consternation to Plaintiff/Counter-Defendant, vs. 4 the court. It has caused me to have to SCOTT ROTHSTEIN, individually; 7 engage in an inordinate amount of time to BRADLEY EDWARDS, individually, 8 the exclusion of other natters that needed Defendants/Counter-Plaintiffs. 4 my attention. 10 While the Court understands the gravity TRANSCRIPT OF PROCEEDINGS 11 of the issues that have transpired, it is 12 with extreme consternation and concern that DATE TAKEN: Thursday, March 8th, 2018 13 they have transpired on the eve of trial, a TIME: 10:07 a.n. - 12:08 p.m. PLACE 205 N. Dixie Highway, Room IOD 14 trial that has already been continued once, 15 matters that could have bean avoided had Nast Palm Beach, Florida BEFORE: Donald Hafolo, Presiding Judge Io timely action been taken. And the burden on 17 the Court to try to gat through what would 16 bo approximately four foot of documents is I0 extensive and onerous. I have done the boat This cause cane on to be heard at the time and place aforesaid, when and whore the following 20 that I can to go through the materials, and proceedings wore reported by: 21 I had some assistance, which I appreciate, 22 from ono of our staff attorneys, in trying Sonja D. Hall Palm Beach Reporting service, Inc. 13 to simply wade through the extensive, 1665 Palm Beach Lakes Boulevard, Suite 1001 24 complicated, and in many situations, years' West Palm Beach. FL 33402 25 old documents, some that go back almost a 2 4 1 I decade in terms of their age, and much of 2 APPEARANCES: 2 which I'm reviewing for the first time. 3 For Plaintiff/Counter-Defendant: 4 LINK 4 ROCKENBACH P.A. , So it's against that backdrop we will • proceed. WO will hear the motion filed by 5 By KARA BERARD ROCKENBACH, ESQUIRE Epstein to remove the case from the trial 6 By SCOTT J. LINK, ESQUIRE ^ docket relative to Florida Rule of Civil 9 For Defendant/Counter-Plaintiff: Procedure 1.440 first. SEARCY, DENNEY, SCAROLA, BARNHART C 8 SHIPLEY, P.A. e MR. SCAROLA: Good morning, Your Honor. With the Court's permission, believe it or 9 By JACK SCAROLA, ESQUIRE :0 not, there is ono agreed matter that we 10 By DAVID P. VITALE JR., ESQUIRE 11 would ask the Court to address first. By KAREN TERRY, ESQUIRE 12 I would like to introduce to Your Honor II 12 For Non-Parties L.M.. E.M. 4 Jane Doe 13 University of Utah Law Professor Paul 13 HATCH. JAMES 4 DODGE, P.C. 14 Cassell, former Federal Judge Paul Cassell, 15 who will present that matter to the court. 14 Y 16 MR. CASSELL: Good morning, Your Honor. 15 17 Since this is an unopposed motion, it will 16 For Jaffrey Epstein: 27 ATTERBURY, GOLDBERGER 8 WEISS, P.A. 18 just take 10 seconds to present. 19 I'm here pro hac vice, which I'm not 18 20 sure the Court is concerned about. Wo do By JACK A. GOLDBERGER, ESQUIRE 19 21 have a notion to seal the pleading and 10 22 related mails. It's unopposed. We ask li 22 23 that it bo granted. Temporarily sealed 23 24 until you roach a ruling. 24 25 THE COURT: That's fine. I will need 25 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793881 5 7 2 6 9 10 11 12 13 14 IS 16 17 IS 15 20 21 22 23 24 25 an order in that regard, please. All right, Ms. Rockenbach. MS. RoCEENBACH: Thank you. Hay it please the Court. Good morning. Your Honor mentioned the barrage that the Court has received. And it's the exact words that I have on the top of my yellow pad to describe the email flurry that has occurred within the last four days, which have truly made ma sick. I could not wait for this hearing to occur because of the fact that I know this Court does not need any more paperwork. You need to see the attorneys and understand the chain of evidence and how it was reprehensible that either I or my law partner has been accused of stealing documents. That has made me sick. So I look forward to discussing the privileged nature of the documents. And I thank Hr. Cassell for being here today. Your Honor, this is Mr. Epstein's motion to remove this case from the trial docket. It was prompted by Mr. Edwards' motion to separate the trials, which was motion -- for the obvious reason, when he • filed his motion to sot the case in the above-styled cause of action for trial on May 24th, 2017. There is no dispute. And Mr. Edwards has actually pointed it out, Mr. Epstein did not have a default against Mr. Rothstein. Contrary to what Mr. Edwards' suggestion is, is to cure this issue -- 10 THE COURT: Mr. Epstein did not have a 11 default against Mr. Rothstein. 12 MS. ROCKENSACE: Rothstein, thank you 13 very much. 14 Contrary to what Mr. Edwards has 35 suggested, there is no cure for a defective 26 motion to mat a cause for trial. You cannot 27 cure lt. 28 There are some cases that have been 29 cited. In fact, both sides. I cited Labor 20 Ready from the Fourth District Court of 21 Appeal in my motion. And I understand 22 Mr. Edwards intends to rely upon it. But iS this was an authored decision by Judge 24 Melanie May from the Fourth DCA. And that 25 case has great language to guide this Court 1 2 3 4 5 6 8 9 20 21 22 23 24 IS 16 17 10 19 20 21 22 23 24 25 filed on Friday, I believe, for the firs: time identifying that the fact that the default that Mr. Epstein has against Mr. Roth was on the original complaint and it no longer applied. Mr. Edwards pointed out to this Court and to Mr. Epstein -- he is absolutely correct -- that Mr. Epstein's operative complaint is the Second Amended Complaint to which there is no default. What rule 2.440 tolls this Court to do is to look at the time that Mr. Edwards moved -- it's maybe a notice to set trial. In this case It was a motion to set cause for trial -- was the case at issue. Rule 1.440 is ono of the most strictly complied with mandatory rules of civil procedure, which has boon recognized by the Fourth District Court of Appeal, and it's ono of those rare instances when a petition for writ of mandamus is appropriate when it's not complied with. So we need to look at the pleadings and not try this case twice. This case was not at issue when Mr. Edwards filed his 6 2 In that case Judge Hay wrote, •We do • not quarrel with those cases or their 4 holdings.• 5 Your Honor, would the Court like a copy • of this case to follow? THE COURT: Sure. MS. ROCKEHBACH: Thank you. May I • approach? :0 THE COURT: Yes. 21 MS. ROCKEHBACH: I have a similarly 22 highlighted copy for counsel. 23 So in that case, the Fourth DCA has 24 said, •We don't quarrel with genuine parts 35 of prior Fourth DCA case recognizing the 16 mandatory nature and compliance, strict 17 compliance with Rule 1.440.• Judge May 14 wrote, 'we don't quarrel with Bennett versus 19 Continental Chemicals.• 20 However, we point out that none of 21 those cases involve the case that has boon 22 pending at issue for years. Those cases 23 were at issue. Moaning, they had a default. 24 They had an answer. They had a final 25 pleading. Twenty days had run. Another 30 8 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793882 9 days had run. Compliance with rule 1.440, 11 pointed it out. 2 check the box. I researched it over the weekend. And 3 What Judge May said in this case, the on the very next business day, as soon as I 4 Labor Ready case, there was a Last minute possibly could, I filed the motion to remove 5 technical amendment to the complaint. And the case from the docket. 6 guess what, they went to trial. It was I then immediately moved to default. I 7 waived. have an order for the Court to sign to enter That case does not apply. Those facts 8 a default. Served it on Mr. Rothstein's 9 do not control. What you have before Your 9 counsel of record, Marc 'Balk. And we will 10 Honor is a -- no waiver, no waiver. You 10 then be ready once this Court enters the 11 have an objection that Kr. Edwards has 11 default, and presumably either party notices 12 pointed out, rightfully so, the case is not 12 it for trial in 20 days when it la then at 13 at issue. 13 issue, this Court can then set it no less 30 14 What I filed with the Court 14 days. That is the mandatory nature of the 25 immediately, simultaneously with the motion IS rule. 26 to romovo this case from the docket was a 26 I regret we're here, but this is a 27 proper motion for default against Rothstein. 27 strict compliance rule and we have to be at 28 There is no case that supports 28 issue. 29 Mr. Edwards' position to this Court about 29 And, Your Honor, the last thing either 20 severing a case In order to retroactively 20 side or this Court wants is to try this case 21 make it at issue. That doesn't happen In 21 twice. 22 the law. 22 THE COURT: Despite the representation, 29 The law says, in rule 1.440 in the 29 Ms. Rockenbach, that you made in your motion 24 Bennett case and the Gawker case from the 24 to continue, that Plaintiff and his trial 15 Second DCA, says that this Court has to look 25 counsel will not seek another continuance. 10 12 1 at May 24th -- and that is the salient date We will bo to ready to try the case in 90 2 that this Court must look at -- because that's when Mr. Edwards h aaaaa y moved this case and set the above-styled caused of 2 days -- MS. ROCKENBACH: Yes. THE COURT: -- quote, end quote. S action for trial, May 24th. 5 MS. ROCKEHOACH: Yes. 6 To bo clear, Your Honor, Mr. Edwards THE COURT: Why was that not pointed 7 8 did not move to sever at that time. This case has boon pending for sane eight plus out to me upon a review of the docket, presumably a review of the docket, to 9 20 years. He has never before tried to sever. He, at that time, on Nay 24th, instead :0 determine whether or not there was, in fact, a need to strike the trial notice at that 22 of pointing out the lack of at issue, and by 22 time, instead of gearing up, instead of 22 the way, you need a default, he moved the 22 spending an inordinate amount of court 29 case. He didn't oven move his counterclaim 29 resources, and now taking the position that 24 to set for trial, he moved the case. 24 because what in essence was dilatory conduct 25 And then further, to evidence IS on the part of the Epstein trial counsel 16 Mr. Edwards' intent to try this case 16 team, dating back to 2011, now constitutes )7 globally, main claim and counterclaim -- 17 reason for this case to be stricken? 10 which is appropriate, because the 10 Does that not sound inequitable? Does 19 counterclaim arises from the main claim -- 19 that not sound inappropriate? Does that not 20 he entered into a joint stipulation 20 sound specifically contrary to the quoted 21 indicating that that's how the case is going 21 language that I have just indicated here? 22 to be tried. 22 MS. ROCREHBACH: The quoted language as 23 So it was not Mr. Epstein who caused 23 you indicated, Your Honor, I made knowing 24 this last-minute, 11th-hour, oh, my gosh, we 24 that there was a default. 25 are not at issue, it was Nr. Edwards who 25 Mr. Edwards at that time never said Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793883 13 that default does not apply to the operative 15 Mr. Epstein, as the Plaintiff, and his trial 2 complaint. And I never, over thought that 2 counsel, will not seek another continuance, 3 it did not. and bo will be ready to try the case In 90 4 THE COURT: Isn't that your days -- quoted language, pledging to this 5 responsibility? Isn't that the Court that otherwise this case is ready to 5 responsibility -- before you make that go -- and now we aro faced with this defect • statement to this Court and make the after all of the time and expense that has 0 representation that in light of the fact 8 been made here and spent hare, is really a 9 that you guys wore getting up to speed, that 9 travesty. 10 part of getting up to speed, would have bean 10 And while I say that tongue in cheek in 11 your responsibility to chock the adequacy of 11 terms of my resignation, this would -- it 12 the pleadings -- and as the case that has 12 would be astounding to me if that was, in 13 been cited -- at least ono of them indicate, 13 fact, the case. 14 the responsibility would have been to file a 14 HR. LINK: Your Honor, may I have 25 motion to strike the case -- strike that- A 25 permission to stand next to my partner on 26 motion to strike the notice setting trial or 26 this? 27 the trial order seasonably and timely so 27 THE COURT: Sure. 0f course. 28 that we would not have bean In this position le HR. LINK: Thank you. 29 in the first place? 29 Judge, I want to make sure that Cho 20 It would seem to me that you aro 20 record is clear. We are not asking for a 22 essentially creating the error yourselves by 21 continuance. The words that we gave you, we 22 not doing duo diligence. 22 aro standing by. This is not a motion for a 22 HS. ROCKENBACH: I wish I had soon it. 22 continuance. And the words that my partner 24 I know there was a default against 24 told this Court wore absolutely true when 25 Mr. Rothstein, and that ho was in federal 2$ she said them. They are absolutely true 14 16 1 prison. Meyer before did Mr. Edwards raise today. This la not us not being ready. 2 this issue that ho raised on Friday. 2 This a legal defect that cannot be cured. And by the way, Your Honor, the fact that Mr. Edwards has raised it, ho is using And I apologize to the Court for where we aro and what wo have done. And I'm 5 it as an excuse to sever the trial, which 5 afraid wo aro going to spend a lot more time a does not cure the defect, and is an together on this case. 7 appropriate manner to try this case in any But I want this Court to understand 8 event. that when my law firm says something, we 9 Mr. Edwards is the ono who pointed out moan it. We absolutely do. And wo aro not 20 the Improper defect, who could have raised :0 moving for continuance. 22 it much sooner. 21 But this case cannot go to trial with li Your Honor, I wish I had seen it. I 22 this deface, that's just the law. But I 22 wish I had soon it. And wo aro ready to try IS don't want this Court to think for ono 24 the case, but that's not the issue. 24 second that my partner or I would over 25 Hr. Edwards having raised the defect 35 mislead you or say something we didn't moan. 16 now, we could go through this trial, got a 16 I have bean accused of enough of that this 17 verdict for Hr. Epstein, and I believe we 17 week. 10 would, and then Mr. Edwards could appeal on 10 THE COURT: The point that I'm 19 the defect because he has raised it. 19 making -- nobody is accusing you. 20 So thorn is but one action that the 20 HR. LINK: Not you, Your Honor. I've 22 Court can take, and that is -- 21 boon accused of stealing documents and a 22 THE COURT: If that transpires, then I 22 crime. 23 quit. Than I am resigning my position. 23 THE COURT: I understand. 24 Because If I can't trust what wan written 24 HR. LINK: And that's the first time in 25 already hero by you, that you -- that 25 32 years. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793884 17 19 2 3 4 5 6 7 8 9 10 11 12 12 14 25 26 27 28 29 20 21 22 29 24 26 THE COURT: And I appreciate that. I understand everybody's emotions are rather high, based upon the fact that all of this has transpired in such a short amount of time. But again, at the same tine, as I said before, it seems to me to be highly Inequitable -- and I understand your argument is legal in nature -- but highly inequitable to coma before the Court and suggest that by way of dilatory conduct on the part of the Epstein trial team in not securing the technicality that we aro speaking about, and that is a default against an individual who will remain in prison for the rest of his life. Who is, to my knowledge, based anecdotally, only based on anecdotal evidence, is penniless and has boon disgorged of any assets that he has and that his family has, that somehow because of this technicality we're caused to put this case back and not try the case after, again, an inordinate amount of time and expense, which is in essence taxpayer money, of which this Court has been and continues to be a 1 2 3 10 11 12 13 14 36 26 27 28 29 20 21 22 29 24 26 has drawn a significant amount of public interest and that has boon pending for -- MR. LINK: Nine years. THE COURT: Nine years is too simple. Throe thousand and thirteen days, as of today. MR. LINK: Yes, sir. Your Honor, if I may. Because what is really important to ms, more than anything in this case, is our reputation. And I want this Court to understand that we are not moving for a continuance. THE COURT: I didn't say that was your position, which la why there is a frustration hare. Continuances aro discretionary under the law. I have wide discretion. The Rule of Judicial Administration of this state -- and I do my boat to follow [ham. And you have probably heard me at 8 :4Ss make this statoment, at least if not expressly, implledly, that the trial courts of this state shall have a firm continuance policy. How, while that may not be popular amongst the bar when the Court enforces that 18 1 steward of those expenses and time. 2 Again, coupled with the fact that it 9 was represented to this Court that there 4 would be no further delays and that the case • would be ready to try. That tolls mo and • that represents to me, that counsel has done 7 their due diligence. Part of the motion said, •Me have hoard 9 the Court loud and clear, now we• -- Link 20 and Rockenbach •aro on the calm, with II support Cram the Gunstor firm, and we will 22 not allow the same typo of conduct that 29 transpired earlier, which the Court was 24 critical of, happen again.• 25 That pledge to this Court means 16 something to this Court. That means that )7 10 19 20 21 22 23 24 25 the docket has been assiduously reviewed, and that everything else, short of gearing up for trial on the substantive issues that are before this forum, have been resolved, rectified, and that certainly wo are not going to be reaching back seven years on a technicality to somehow thwart the efforts of the Court in trying to moved forward on behalf of both sides to resolve a case that 20 rule, it is nonetheless a rule of the 2 Florida Suprome Court, and I do my best to • follow the law, despite popularity concerns, 4 of which I have none. HR. LINK: And wo appreciate that, Your • Honor. THE COURT: So -- MR. LINK: Sorry, I thought you Hero • done. :0 THE COURT: I am not exonerating the II movant here, by any moans. You're the first 22 19 MS. ROCKEHBACH: The movanta being 14 Edwards or Epstein? 36 16 17 10 19 20 21 22 23 24 25 THE COURT: I'm talking about Edwards. Tho movant scatting the case for trial. MS. ROCKEHBACH: Understood. THE COURT: Because Edwards has the same responsibility to the Court, to this community, to the taxpayers, to the public, to my constituency, to assiduously review the docket, to ensure that the notice is being provided in accordance with rule 1.440. So by no moans am I exonerating anyone Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793885 21 here. It's just, again, a cumulation of having to go through what we have gone 23 And our concern with regard to Rothstein arose when we wore informed of the 3 through together. Up to now, what I have witnesses that wore intended to bo called 4 tried to maintain, a civil, professional and ostensibly in the case against 5 efficient atmosphere despite the nature of Mr. Rothstein, which was a damage only claim 6 the case, despite pejorative comments that for a conspiracy to commit abuse of process, 7 were made earlier, which the Court has a claim, which if it had boon defended, 8 indicated will not be tolerated, and that would have been thrown out because there Is 9 has boon fo carefully by all no tort because of the litigation privilege 10 concerned, and I appreciate that very much. 10 for conspiracy to commit abuse of process, 11 But hero we are. I am familiar with 11 and there could not possibly, under any 12 the law. I am familiar with the statute 12 conceivable version of the facts, over be a 13 -- strike that. 13 claim for damages by Mr. Epstein in 14 I am familiar with the rule. I am 14 connection with that. 15 familiar with the comments to the rule. I IS Nonetheless, we aro told that there aro 16 am familiar with the case law pertaining to 26 going to be -- there's going to bo testimony 17 the rule. from Mr. Rothstein -- excuse mo. From 16 I will allow you time for rebuttal, if 28 Mr. Epstoin's victims in that portion of the 29 needed. 29 case, that Mr. Edwards is going to be called 20 MS. ROCKENBACH: Thank you, Your Honor. 10 in that portion of case. 21 MR. LINK: Judge, thank you for letting 11 And what became apparent to us is, that 22 mo coma up hero. 22 an effort was going to bo made to use the 22 THE COURT: Mr. Scuola, again, I share 21 rouse of a claim against Rothstein as to 24 my frustration with you and the Edwards' 24 which we would have no standing to object, 25 legal team, as wall, as far as this 25 to insert into the record information that 22 conundrum. 24 would never be admissible in the claim of 2 It Is disappointing that a firm of your 2 Bradley Edwards against Hr. Epstein. 3 stature, an attorney of your stature, of It became a particular concern to us, 4 which I have an abiding respect for all of those who aro serving Choir clients in this because once a default is entered, the jury is obliged to assume the truthfulness of the 6 case, that, again, the docket was not facts that are alleged in the complaint. 7 assiduously combed, and wo aro loft here today with the vary thal possibility of this No are obviously contesting those facts. So what was going to happen if Chore 9 case not being tried as scheduled. was going to bo a focus on the underlying 20 Your response, please. :0 allegations -- 11 MR. SCAROLA: Yes, air. Your Honor, 21 THE COURT: Against Rothstein? 22 let mo first of all point out that rule 21 MR. SCAROLA: Against Rothstein -- is 23 1.440 only permits a party to notice a is that the same jury was going to be told, you le matter for trial once at issue. 24 must accept those allegationsi and then they 15 And at the time our notice was filed, 35 were going to bo told, you can't accept 16 we wore not a party to the case that was 16 those allegations. And that obviously in 17 pending against Mr. Rothstein. And quite 17 and of itself created a need for us to 18 frankly, had no concern about that case. It 18 approach the Court and ask that those claims 19 was simply not a matter that we cared about, 19 be severed. 20 and quite frankly believed, for the reasons 20 No then determined that Chore was no 21 that Your Honor has referenced, that it 21 valid default over entered against 22 would never really be tried. 22 Mr. Rothstein. It didn't happen. And 23 This is a defendant who has absolutely 23 that's not something, again, that was ever a 24 no ability whatsoever to over respond to a 24 concern to us. 25 judgment against him. 25 I don't represent him. I never want to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793886 I 25 represent him. I am uncomfortable about the 1 27 I.e., is there any law that supporta 2 idea of having to be involves Ln a trial in 2 the proposition that this would, in fact, be 3 which I might have to be raising objections 3 a separate action at this juncture having no 4 that would appear to bo objections on behalf 4 technical, even legal connection, between 5 6 7 of Rothstein to what's going on in that first portion of the case. so we found out about the procedural the claim brought by Epstein against Rothstein for some typo of conspiracy issue, and what is now a separate malicious e defect. Now the issue becomes, does Your ' prosecution claim -- albeit having its 9 Honor have the ability to address those q genesis in the original Epstein action -- 10 problems? And the answer to that question 10 but having nothing shared at this juncture, 11 is clearly yes. 11 either technically or legally, other than a 12 Severance of a permissive 12 case number? 13 counterclaim -- and there is no doubt about 13 MR. SCAROLA: Your Honor, I think that 14 the fact that this is a permissive 14 that is flawless logic. Kt are here to try 15 counterclaim -- costs within the sound 35 our claim against Epstein on a fourth 16 discretion of the Court. 26 amended, quote, unquote, counterclaim that 17 SHE COURT: The question that I had 27 is really a separate action. 25 was, in reviewing the material, is this 38 But while I understand the Court's 29 still a counterclaim at all, albeit 29 reasoning and agree with it, we don't need 10 technically brought as same, because Edwards 10 to try to technically call this something II no longer is a defendant in the matter II other than what it was derived from, and 22 brought by Epstein? 22 that Ls a counterclaim. 29 The solo defendant, as I understand it, 29 Because the law is very clear that this 14 on a one-count issue is Rothstein. 24 Court has the discretion to savor for 25 MR. SCAROLA: Yos, air. I refer to St 25 separate trials a counterclaim. And that's 26 28 I as a counterclaim Only because thit's the I the second -- excuse me -- that's the Third 2 procedural posturing in which it arose. 2 DCA case that we cited to Your Honor, Turner 3 But, when a voluntary dismissal was i Construction Company versus ENE Contractors. 4 taken with regard to all claims against 4 And let mo hand -- let me hand the 5 Bradley Edwards, it's no longer a 5 other copy of that to Your Honor. 6 counterclaim. It's now our claim against e So we can assume -- without needing to 7 Mr. Epstein. reach the argument as to whether this is or 4 SHE COURT: And while it has its e is not still a counterclaim -- we can assume 9 genesis in the original action filed by that LC la a counterclaim. There is no 20 Epstein against Rothstein, Edwards and L.M., :0 question about the fact that Lt's a 21 the fact that simply because it has its II permissive counterclaim. 22 genesis there, as I was trying to think this 22 And we are in a position, whereas the 23 through among the other materials that I had 19 Third District Court of Appeal observed, it 14 CO review -- and they were substantial -- is 14 III within a trial judge's discretion to 35 that can it not be argued that the only IS sever a permissive counterclaim from the 16 connection between Rothstein's claim bought 16 main claim if there is no evidence of 17 against him -- strike that. 17 prejudice. 10 Epstein's claim brought against 10 And I was very pleased to hoar Mr. Link 19 Rothstein, the only connection that is even 19 and Ms. Rockonbach stand before the Court 20 arguable, is that, in fact, the Edwards' 20 and toll you, Me are ready for trial. 21 case had its genesis in the fact that 21 Because that's what they told you. They 22 Epstein originally brought the claim against 22 told you that Oink -- they told you they 23 Rothstein, Edwards and L.M., and then 23 would be ready back in December, and they 24 voluntarily dismissed the case at the eve of 24 aro telling you again, He aro ready for 25 summary judgment. 25 trial. Me aro not asking for a continuance. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793887 29 31 We only want to remove a technical defect 2 that might have us try this case twice. 3 Well, I assure Your Honor, there could 4 not bo a clearer example of waiver on our 5 part of any technical difficulty than I am • assorting to the Court right now that could • never and will never bo the basis for any 8 appellate argument on our part. 9 So, next, the Court goes on to say, •An 10 appellate court will not interfere with 11 procedural rulings of a trial judge, unless 12 a party is deprived of a substantial right 13 by the procedure employed.• 34 So lot's look at the procedure 25 employed, and what the unanimous Fourth 16 District Court of Appeal told us in Labor 17 Ready versus the Australian Warehouses 16 Condominium Association. 29 THE COURT: And again, the mule of me 20 wading through those documents, if you can 21 hand me cases as we go along, I will 22 appreciate it. 22 HR. SCAROLA: Absolutely. 24 THE COURT: Thank you. 25 HR. SCAROLA: This is our appellate 2 3 10 11 12 13 14 25 26 27 28 29 20 21 22 22 24 25 THE COURT: Speak to me again about the issue whore, in a setting such as this, if both matters wore to bo tried together, the position that your client would be In having to prosecute his claim and In essence try potentially try to defend Rothstein at the same time. HR. SCAROLA: Yos, air. I think that that's really clear. The allegations against Mr. Rothstein are, even in this later version of the complaint, basically identical to the allegations that were made against Ns. Edwards. It is the complaint upon which a voluntarily dismissal was taken as to Nr. Edwards. So the jury is told in a default circumstance all of the allegations must be accepted as true. And the only issues that arise are issues with regard to causation and damages. No are contending that there could be -- first of all we are contesting the underlying allegations. The jury is being told accept them with regard to Rothstein. You can't accept them with regard to 1 2 S 8 9 20 li 12 23 .4 IS 16 17 10 19 20 21 22 23 24 25 30 court speaking through Judge Hay, as I said, an unanimous opinion joined In by Judge Gunther and Judge Farmer. And I am looking at the third page, the last page of this copy, Your Honor, and it's the highlighted language. • This is not a case where the case had never been at issue.• Nor Is this. •This is not a case whore the parties did not have sufficient time to prepare.• Nor is this. •This is not a case where anyone was prejudiced by the technical amendments to the complaint.• Tharp they were talking about adding a punitive damage claim to the complaint. ▪ In situations whore the parties have received actual timely notice of the trial, they are precluded from arguing prejudice based upon a technical violation.• Nero we don't concede that there is any technical violation at all. But oven if there wore to be, the Fourth DCA says not a basis to disturb a trial court decision when there is no evidence of prejudice. And we aro being told no prejudice. 5 9 20 22 22 23 14 35 16 17 10 19 20 21 22 23 24 25 32 Epstein, they aro contested. So that's the first problem. Ono jury being told to assume two different things. The other problem is, we are contending that there could be no damages incurred by Mr. Epstein as a result of anything that went on with regard to a Fonti scheme in which he was not an investor. MO are also contending nothing about what went on at Rothstein, Rosenfoldt 4 Adler can form the basis for a claim because of the litigation privilege, absolute immunity of the litigation privilege. So the defense -- excuse me the plaintiff in the Epstein versus Rothstein Case begins their case by putting on proof about how Mr. Epstein was alleged to have boon damaged by these absolutely immune activities. What do I do at that point? I must stand up every time any of that evidence is being adduced before the jury, and I must object on the basis that this cannot apply to Hr. Edwards. I'm in the position of defending Mr. Rothstein, of objecting on the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793888 2 3 4 5 33 causation grounds, of objecting that no injury could have been caused, of objecting on the basis that this is all absolutely privileged information. And from the perspective of the jury, I am now defending 2 3 35 singular count. HR. LINK: Yes, sir. THE COURT: Clearly that was done after what was termed In quotation marks that I am using, a counterclaim filed by Edwards at a 6 7 9 this man who is sitting in federal prison for 50 years. And that simply creates extraordinary prejudice to my client. It creates time when Edwards was, in fact, a named defendant in that particular action by virtue of Epstein's decision through counsel, presumably, to no longer Include 10 confusion on the part of the jury, and It is 10 Edwards as a defendant in that action, the 11 absolutely unnecessary) and, indeed, under 11 terminology and the trappings that would 12 these circumstances procedurally precluded 12 otherwise go along with a pleading entitled 13 because there is no default against 13 counterclaim would dissipate, would legally 14 Mr. Rothstein. 14 disappear, in other words, had Nr. Edwards 25 So this Court has discretion to solve 36 and counsel decided to file a separate 26 the problem. You simply sever the 26 action. 37 permissive counterclaim or the separate 37 HR. LINK: Yes, sir. 28 action, and you allow us to proceed to trial 28 THE COURT: Mad this case gone away in 29 on a case that Nr. Epstein's lawyers have 29 its entirety -- let's say, just for the heck 20 said they aro ready to try. 20 of it, that Epstein decided to completely Si Let's do it. Let's go to trial. They 21 walk away from the lawsuit in its entirety, 22 said they aro ready. The Court has the 22 just walk away -- 28 ability to cure whatever obstacle 28 MR. LINK: Could have happen. 24 conceivably exists to trying this case. 24 THE COURT: -- as many do, okay, there 2$ My client finally deserves the 25 was no longer a counterclaim, it la now -- 34 opportunity after 3,000 whatever it is days 36 and has really always boon, since the tine 2 to be exonerated publicly of the terrible 2 that Epstein -- strike that. 3 4 6 8 9 30 Charges that were lodged against him and hang out in the air and hang out in the cloud and hang out in the Internet some nine million point six hundred thousand times. We would like our day in court, air. I am pleased to answer any other questions Your Honor may have. But clearly the Court has got discretion to do what wo That Edwards was no longer a defendant In the case, a separate action, no longer a counterclaim, technically or practically, because there was no pending claim against Edwards, at least as late as the Second amended or whatever iteration of the complaint that was filed in September of 2011. 21 would like you to do. Justice demands that 21 MR. LINK: Yes, sir. I understand 22 you do what we would like you to do. Thank 22 that. It's really easy. On Friday 33 you, sir. 29 Mr. Scarola figured this out. Me have had 24 THE COURT: Thank you, Mr. Scarola. 24 this case for nine years. His client was 25 Hr. Link. 36 dismissed in 2012. Why didn't ho come here 16 MR. LINK: Yes, sir. 16 in 2012 and say, Judge, this is no longer a 17 THE COURT: As I mentioned, and I want 17 counterclaim, I want my own suit? If he had 10 to give you the opportunity to comment on 18 preceded -- 19 this point. 19 THE COURT: I don't think he needed to 20 In trying to think this through and 20 do that. Why did he have to make a 21 rationally engage in a discussion, quote, 21 declaration of such, when by operation of 22 technically and practically, I start with a 22 law -- again using September Ilth, the last 23 proposition that the last amendment to the 23 iteration of the complaint filed by Epstein 24 complaint that was filed on behalf of 24 against Rothstein only -- 25 Epstein was solely against Rothstein on a 25 HR. LINK: Yeah. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793889 37 39 1 THE COURT: -- there is no longer the I that he has brought, albeit, again, having 2 trappings, the necessity of a counterclaim. / the genesis of the original claim, that has 3 There is no pending claim against Edwards by I been dropped. But there's nothing that 4 Epstein. It essentially -- it essentially 4 would have prohibited him from bringing a 5 morphs, then or becomes -- better stated -- separate action, nothing that would 6 a separate action, because counterclaim no prohibited severance a long time ago that I 7 longer applies. It has no application can think of, because of the fact that they e whatsoever. It's a separate action. ' no longer have any interrelationship 9 The only thing that it shares now -- , legally. 10 I will give you a chance in a moment. 10 Now, again, I will grant you that 11 I apologize. 11 factually there may be some overlap. I'm 12 MR. LINK: No, you're doing great. 12 not suggesting that. But from a purely 13 THE COURT: Tho only thing -- the only 13 legal standpoint, this separate action, 14 thing that it now shares is a common case 14 there is nothing that I can think of that 15 number. That's it. Okay. 35 would necessitate these two matters to be 16 MR. LINK: That's no longer important. 26 tried together. 17 THE COURT: There's no longer any 27 And the fact that substantial confusion lb relationship -- 28 could be operable here -- as argued by 29 HR. LINK: Not true. 29 counsel and as written down by the Court, 20 THE COURT: -- Epstein versus Rothstein 20 even before the mention of the word -- and 21 is separate and apart, and has absolutely no II the prejudice that would be done here, may 22 connection at this stage of the game -- now 22 even create a better forum for each of the 29 Chore nay be some tangential things that are 29 parties to got their justice that Choy are 14 shared in terms of the nature of the case, 24 seeking, i.e., Kr. Epstein's damages against 15 and song nay even suggest that if they wore 25 Rothstein. I an not sure whether causation 38 40 I both sop aaaaaa y brought that LC could 1 becomes an issue or not. I think it's 2 constitute a transfer. 2 simply a matter of damages, but that 5 MR. LINK: Yes, sir. i Rothstein has the opportunity to defend 4 THE COURT: Because it involves, at 4 himself against. s least arguably, the same transaction and 5 But Edwards, on a totally separate 4 occurrences that may have transpired hero. a legal theory, and in a case that now bears 7 It may even suggest the potentiality of no ambiance to a counterclaim, has his a consolidation. Though, on further review if a right to seek justice in a timely fashion as 9 it would come before me and there would be 9 well. My not? 20 argument against it, the likelihood -- and 10 HR. LINK: My turn? 11 I'm just speaking generically. I'm not 21 THE COURT: Yes. 32 suggesting how I am going to rule on 22 HR. LINK: Okay. So many things to 29 anything that's not before the Court -- but 19 say. 24 arguably, it could be denied because of -- 1 14 First, Judge, you nailed it. In 2012 35 wrote down here before Nr. Scarola mentioned 35 Mr. Scarola could have corm to this Court 16 it -- confusion of issues before the jury 16 and said all the things you just said. 17 and the potential, the real potential of 17 THE COURT: What is preventing him from 10 prejudice when you inject a convicted felon 10 having it now? Mat's prevening it from 19 with the notoriety of Mr. Rothstein, who is 19 happening now? Idly can't I follow what I 20 sitting in prison for the rest of his life, 20 perceive to be, as often is the case, as I 21 that's made international news, that 21 mentioned this probably before, the 22 continues to be shown on CHEC -- I forget 22 practical nature of a judge like Judge Hay 23 the nano of the show that has to do with 23 from the Fourth District of Court of Appeal, 24 greed -- and what's happened now with 24 taking the bull by horns, as she often does, 25 Mr. Edwards, in terms of the separate action 25 has the gift of being able to clarify and Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793890 2 3 4 5 41 distill often very complex matters, to provide not only legally correct results, but practically correct results, which is why I admire her writing and the way she goes about things. 43 claims back years and years ago. And a choice was made to proceed only on a ono-count complaint against Rothstein as of September 2011, thereby, as I indicated earlier, losing any trappings, losing any 6 MR. LINK: As do we, Judge. indlcla of counterclaim, at least by that 7 SHE COURT: Why is it that somehow this point and likely before that, because there 8 9 technicality, which really is -- which has, in my view, no bearing on the legal -- on wore several iterations of th0 complaint that were amended, subsequent to the 10 the legalities of the situation, whether 10 dropping of Edwards from the claim, thereby 11 wore technically oriented or were 11 no longer making it a counterclaim. It was 12 practically oriented. 12 in name only. It had no legal significance 13 But there's no denial of the fact that 13 whatsoever, except by name. 14 this is separate, that this really is no 14 HR. LINK: It does, Your Honor. rho 26 longer a counterclaim and hasn't boon for 16 legal significance, if I can approach, is 26 the last seven to eight years. 26 laid out in our pretrial stipulation. 27 HR. LINK: Judge, we disagree with 37 And the case law is really clear. Khan 20 that. I don't think it's that simple, I 24 lawyers enter into a pretrial stipulation, 29 really don't. I think we're confusing two 29 Your Honor should follow it. 10 issues, and let me start there. 10 THE COURT: And I am wholeheartedly in 21 Shore is the issue of severance. It is 21 agreement. 22 clearly within this Court's discretion to 22 Let me stop you there, because, again, 22 sever this case. WO aro not disputing that. 22 you have argued it, and I don't want to make 14 We are not saying you should. We thought we 14 a short trip to that. 25 wore talking about whether the case was at 26 Then Chief Judge Ciklin in a case -- 42 44 1 issue. that slips my memory as far as its name is 2 But wo can talk about severance and 2 concern -- spoke eloquently and at length 3 whether it makes sons* or not. And this about the sanctity of the pretrial 4 Court needs to understand, no matter what stipulation. 6 Mr. Scuola wants, Mr. Rothstein la going to be part of this trial, whether wo aro suing him or we aro defending their counterclaim, because this case is all about whether we 5 a So before I even road it, and what it says here, you quoted from it, that's what I road it. I didn't go back and look at the pretrial stipulation itself, among the -- 9 can demo aaaaa to that Chore is a connection 9 just so everybody knows -- among the 1,239 20 between Mt. Edwards and Kr. Rothstein. 20 docket entries hero. So I don't want 11 That's what he says caused him harm. 21 anybody to suggest that it was simply by 22 We're going to be looking at evidence 22 virtue of laxity that I did not review the 13 at some point in which we believe with 13 actual brief. 14 100 percent certainty we can make that 14 MR. LINK: Judge, there's none of us in 36 connection. 16 this courtroom that have any doubt about how 16 SHE COURT: The connection between 16 much time you have put into this case. 17 what? 17 And unfortunately there are probably 18 HR. LINK: Between Kr. Edwards and 18 papers filed that you haven't even received 19 Mr. Rothstein discussing the Epstein cases 19 yeti filed before we got the notice. 20 and getting around court scrutiny. 20 THE COURT: You got my rather brief 21 THE COURT: And that's Zino. Why 21 response. 22 didn't you plead it and maintain the claim 22 MR. LINK: The brevity was hard to 23 when you had the opportunity to do that? 23 miss. We got it. And wo filed these 24 Instead there was a dismissal of the claim 24 before. 25 against Edwards and an abandonment of those 25 But the reason this joint pretrial stip Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793891 45 is important, Judge, Is you keep saying they 47 that. So all he is saying Is, Judge, I 2 aro not the counterclaim Plaintiff, and 2 agree it's going, but I don't like Link's 3 Mr. Scarola and I negotiated this together. 3 language. 4 Bo wrote it together, we made changes That is not him saying I reserve the 5 together. And every part of this pretrla. right to not go forward with this claim. 6 stip and the jury instructions and And when you read through this contract 7 everything we submitted to the Court sets between ma and Kr. Scarola, as two officers 0 this case up to bo tried, Epstein again:: of the court, and Judge Ciklin's opinion, 9 Rothstein, first issue to be cited, say: and everybody else's, we aro supposed to be 10 right in there. 10 bound by what we say here. 11 The second issue to be cited, Edwards 11 So that ,,,,,, yes, you have discretion 12 versus Epstein. We've laid out how we're 12 to sever cases, you always do. Severing the 13 going to try this case. We've attached 13 case, if that's a decision the Court makes, 14 exhibit lists, witness lists. Me do 14 doesn't change the fact, that when 25 stipulated facts, your Honor. 25 Mr. Scarola noticed this case, the ono wo 26 So thorn is no part of the pretrial 26 have a pretrial stip on, Judge, the ono you 27 that we entered into, long before 27 entered an order on, which was the case, was 28 Mr. Scarola's motion at 5:00 on Friday 28 not at issue. Be don't like it. It is what 20 asking to sever this case, that was ever 29 it is. It's the law. 20 contemplated by the parties. 20 And ono of the differences in what ii We entered into an agreement, two Mr. Scarola say and what the law is, is that 22 lawyers. That's what a stipulation is. Be 22 every case where there was a waiver or 22 entered into an agreement, Judge, on how we 22 technicality was post jury trial. 24 would try this case. Now Mr. Scarola wants 24 The Fourth OCA has said mandamus is 25 to change his mind. This is our contract. 25 appropriate, it requires no prejudice, it 46 48 1 THE COURT: But it's interesting, requires you to follow the law. 2 because in this pretrial, here is what It 2 THE COURT: So what Mr. Link is saying, 3 says. Quote, case against Rothstein. What, Mr. Scarola, is that if I grant the motion 4 if any, damages were sustained by Epstein for severance, this case is going to go up 5 and proximally Caused by Rothstein? 5 on a writ or mandamus? 6 MR. LINK: Yes, sir. THE COURT: Parenthetically, continue MR. LINK: I don't moan it in a threatening way, Judge. 8 the quoted provision. Edwards does not THE COURT: I don't take it that way. 9 agree with this language for the reason that MR. LINK: But that is the truth. 10 the issue as stated fails to tie causation :0 THE COURT: McLean Stevenson once said ii to Rothstoin's operation of the Point 21 to Frank Burns, 'Frank, you've gone over my 2 scheme. 22 head so many times, I have footprints on my 22 It is Edwards' position that failure to is scalp.' 14 limit the issue in this way as to Rothstein 34 MR. LINK: More is the easy fix. Me 35 has a potential of confusing the jury in 35 don't need mandamus. If you decide to savor 16 determining whether Epstein had any probable 16 the cases for whatever reason, 20 days from 17 cause to claim damages Edwards arising out 17 today, Hr. Scarola can notice his case for 10 of the Air& circumstances, and of quote. 10 trial and you can set it for 30, and we will 19 MR. LINK: Mitch moans if you limit it, 19 be here to try the case, and wo won't seek a 20 that prejudice is gone. That's what he's 20 continuance. 21 tolling you. He agrees to this issue. He 21 I don't think you should savor them, 22 doesn't like the way I framed it. That's 22 but that's within your discretion. But you 23 the difference. 23 can't fix today what was wrong in May, 24 If I put his language In, which tied it 24 that's the problem. 25 to the Ponsi scheme, be wouldn't have added 25 THE COURT: The pretrial stipulation, Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793892 2 3 4 5 6 7 49 just for record, the case I keep on my bunch is Palm Beach Polo holdings, Inc., et. al versus Broward Marino, Inc. I have the original email from the Fourth District Court of Appeal copy. So I don't have a cite for you, but it's from 2015. That's easily accessible if you'd like to road it. MR. LINK: Thank you. 51 Edwards from the case, which only provided the genesis for what was at the time a counterclaim technically. Perhaps even that might be able to be argued because of the fact that it came after the dropping of Edwards as a party to the claim. But certainly, without equivocation, after the second and third and whatever else 9 I know W. Scarola said they're excited 9 iterations of the complaint as amended as of 10 to try the case, bellow, me, Judge, we are 10 September of 2011, there was no semblance of 11 really excited to try the case. 11 a counterclaim because he was no longer a 12 The evidence that we recently 12 party defendant in the claim made by Epstein 13 discovered -- 13 against Rothstein only. Md that's whore 14 THE COURT: Then waive the 14 I'm talking about hyper technicality, that 25 technicality. If you are so excited about 15 despite the eagerness on the part of Epstein 36 it, then waive the technicality. 26 to try the case, as enunciated by Mr. Link 37 MR. LINK: I won't do that, Judge. 37 repeatedly -- 28 THE COURT: Nell, repeatedly you is MR. LINK: Mr. Link's excitement. 19 indicate that -- you have indicated today 29 THE COURT: Moll, I presume always that 10 how excited you are about trying the case. 10 counsel is speaking by and for his or her 2I MR. LINK: I am. 21 client. 22 THE COURT: Vet -- 22 MR. LINK: I am, Your Honor, but I am 22 MR. LINK: With the beat judge in the 22 personally excited. 14 circuit. 24 THE COURT: Good. But again, it is 25 THE COURT: Thanks. 25 without the willingness to waive the hyper 50 52 1 MR. LINK: For this case. How's that? technicality. 2 So I don't get in trouble with the other judges. Did I save myself there? 2 Ma. Rockonbach. MS. ROCKENBACH: Your Honor, I just 4 THE COURT: Another TV show. Quit 4 wanted to add an appellate point. It sounds telling her how beautiful she is, we all know you aro lying. You can figure that one 5 like you and I are both mutual fans of Judge Melanie May's clarity. She authored both of 7 out yourself. But anyway -- that's the the Fourth DCA's decisions that you aro husband speaking about. 0 guided by, the genuine parts decision as 9 MR. LINK: I am excitedly cautious and 9 well as the Labor Ready decision. Md it -- 20 I cannot waive the legal right. 20 submitted to the court, is not a hyper ii THE COURT: Nell., that's what I'm 31 technicality in that the rule says shall, 22 trying to say about your excitement. The 22 it's mandatory rule, and that is what Judge 23 repetitive statement made In the motion is 22 Nay was noting and approving and recognizing 24 that your client is unwilling to waive the 14 In the progeny of cases that existed before 35 technical issue. 25 those two decisions. I am referencing the 16 MR. LINK: We don't think it's 16 Bennett case. 17 technical. I think that's the difference. 17 What this Court has recognized is that 10 MS. ROCKENBACH: May I just Jump in? 10 Edwards could have but did not novo to sever 19 THE COURT: It is ay respectful view, 19 this case back in 2011 when Edwards was 20 hyper technical under those set of facts. 20 dismissed. 21 The hyper technicality arises because of 21 THE COURT: Was there a need to do 22 what I have already explained in detail. 22 that? 23 And that is, that this is really not a 23 MS. ROCKENBACH: Yes. Absolutely. 24 counterclaim, and hasn't been a counterclaim 24 was thinking about this. In other 25 since Nr. Epstein made his decision to drop 25 instances, I have had counsel coma up and Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793893 53 55 tried to swap party names and drop, and 2 switch, and -- you can't just do that. You 3 have to actually -- I think there's an 4 administrative order on it. I think you have to go to the court do it. 6 But in this instance, you absolutely -- 7 Mr. Edwards had the onus to coma before this Court and say a few things. He could have 9 made his case separate. He didn't, ho chose 10 not to. He waited at least seven years or 11 six and a half years, by my count, to come 12 on Friday after 5:00 p.m. to file a motion 13 to sever the trial and use the at issue as 14 an excuse to sever. 25 He didn't move to sever previously. It 26 was not at an issue when he filed his motion 27 on May 24th, 2017. And there is no case 26 that Mr. Edwards -- no case that I could 29 find -- and I looked -- and there's no case 20 that Mr. Edwards has presented to this Court 21 that says, you can cure the mandatory rule 22 or defect of 1.440 by severing a 29 counterclaim or a cause claim. 24 The last point I would like to make la 25 Mr. Scarola said the rule 1.440 says a counterclaim, it was a separate action 2 sharing only the same case number? 3 MS. ROCKEHBACH: It changes the ability 4 for Edwards to file a ripe 1.440 notice. Because it was not severed, he noticed the entire action for trial when the action wasn't at issue. So severing doesn't cure it. THE COURT: Well, I am asking you, tell 10 ma how, for the record, how it affects your 11 trial preparation or your presentation at 12 trial? I think you need to gat that on the 13 record. 14 MR. LINK: Yes, Your Honor. It doesn't 26 change our trial preparation. It changes 26 how we try the case. Thera is a significant 27 difference in me being the Plaintiff in the 28 case and going first and my burden of proof 29 than what Mr. Scarola wants to be is the 20 plaintiff. 21 And he had a choice. He could have 22 filed a separate action, and he would have 29 been the plaintiff. 24 He chose -- he chose the vehicle. He 26 doesn't like his vehicle today. He decided 2 3 7 9 10 ll 22 23 24 is 16 17 10 19 20 21 22 23 24 25 54 party. It says, •any party.• And that's significant. The reason why it says any party is that rule talks about crossclalms. It talks about counterclaims. It talks about any party. So any party could have moved to set it for trial. And when Mr. Edwards moved, he didn't move as just Mr. Edwards trying to set his counterclaim for trial. He moved the -- the language is in my motion, and I am sure it's in the Court's extensive docket -- he move to set this case, quote, unquote, and quote, above-style cause of action, quote, unquote. So ha clearly could have moved to savor at that time. He did not. He valved the right to timely saver the action. And we ask that the Court grant the default against Rothstein today, unless there is argument to be made, and -- THE COURT: How does this change, though, your trial preparation if I savor the case today as opposed to I severed it -- Judge Crow, my predecessor, severed It back in 2011 when it no longer was a 2 5 :0 21 22 23 24 35 16 17 16 19 20 21 22 23 24 25 56 on Friday he didn't like it. But he chose the vehicle of a counterclaim. That means I go first, he gods second. He hates that idea. So it changes and St's prejudicial if these cases are severed, because they are so intertwined, Your Honor. I can't even think of a case that's not more intertwined. THE COURT: You have the right to go first if the Rothstein case Is before this court. MR. LINK: In that case. But I have the right to go first in this case because he has the counterclaim. THE COURT: I don't agree with you there. How do you have that right? MR. LINK: Because I am the plaintiff in the case, I go first. THE COURT: You are the plaintiff in the case against Edwards. MR. LINK: No. But the first issue we described in the pretrial stip that's going to got triad is my Issue against Rothstein, that means I go first. THE COURT: I agree with you there. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793894 57 59 1 HR. LINK: I don't go first in the I struggle -- and I get it -- the struggle la, 2 trial. 2 yea, these two cases are intertwined. Is 3 THE COURT: That's precisely the 3 there soma machination I can do that would 4 question I asked and It wa➢ not an➢wered 4 put this case at I➢mN? And the answer is 5 correctly. s you can't. mere'➢ nothing you can do to 6 MR. LINK: Sorry. 4 cure the May defect, Your Honor. That's the 7 THE COURT: That's okay. 7 problem. I know that's what you would like o I just want to make sure that we are s to do. I get it. 9 clear that If consideration is given to 3 THE COURT: Lot's take a five-minute 10 trying both of these cases that Epstein is break. We will b➢ back momen aaaaa y. We 11 would be able to prove his damages claim II will be in recess. Thank you. 12 against Rothstein. 12 la. reces➢ was had 11:15 a.m. - 11:24 a.m.) 13 HR. LINK: Yes. 13 THE COURT: Mr. Link, did you finish 14 THE COURT: But as it relate➢ to issues II your argument on the issue? 25 on the counterclaim -- we are calling it the IS MR. LINK: I am confident I did, but, 26 counterclaim -- the claim brought by Edwards IS you know, it's hard for no to turn dole'. an 27 against Epstein clearly, in that particular If opportunity to say more. But, no, Your IS action, Mr. Scarola would be bringing hla IS Honor, I think we said it all. 19 witnesses first. Is THE COURT: Thank you very smch. 20 HR. LINK: Absolutely, Judge. I think 20 Mr. Enrol., the one thing, again -- 21 I spoke poorly. I appreciate you correcting 21 well, not the ono thing -- smltiple things 22 that. 22 that went through the Court's rand when I 21 But the way the pretrial is setup and 23 was dealing with this wa➢ the que➢tion I 14 the way the case is structured, the first 24 posed to Hr. Link, and that is, that the 15 case the jury will hear will be my case 25 pretrial contemplation of the case -- of the 58 60 1 against Mr. Rothstein. Then Hr. Scarola h action being tried together. And the 2 will present his case, and we will defend 2 anticipated r➢lponse to my question that s that. $ ➢rlal strategy -- albeit now that we have 4 So ono of the things that's in my mind 4 ironed out the way in which the order of $ that I can't let go of, is how do we 5 proof will proceed -- could be 6 ➢anitize Rothstein from this case -- that'➢ . effected, and thus prejudicial to 7 what Hr. Scarola wants to do -- when his Mr. Eplitein'S po➢ition if the cases are not 8 whole Claim against is we wrongly filed a b tried together a➢ noticed. 9 pleading that connected Kr. Edward➢ to Your thought➢. 20 Rothstein. That's what Nr. Edward➢ has maid :0 HR. SCAROLA: Yes, air. I don't 21 has kept him in anxiety every single day 3' understand what unfair prejudice possibly 22 since December 2009, the connection to 22 arises to Mr. Epstein when the jury is 13 Rothstein. 29 instructed that they must consider these 14 So, they have the burden of proof to 24 cases separately. 15 show that we didn't have probable cause to 35 The only prejudice would arise if 16 make that allegation. 16 Mr. Epstein is permitted to do what it la 17 I promise you, Your Honor, when wo get 17 now obvious Hr. Epstein plans to do, and 18 through the evidence, you will see there was 16 that la to use hi➢ case against 19 plenty of reason to make that allegation. 19 Mr. Rothstein to improperly Influent* the 20 So I don't know how you sanitise 20 jury with regard to Hr. Edwards' claims 21 Rothstein from this case. So if he's going 21 against Hr. Epstein. 22 to be in case, isn't It more efficient to do 22 The Court recognises the fact that 23 it once? That's what the pretrial says. 23 there is tremendous danger of confusion and 24 Mr. Scarola and I contracted to that. 24 prejudice if these two cases are tried 25 The issue that really is the 25 together, following the plan that It has now Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793895 2 3 4 61 become evident Kr. Epstein plans to follow. What unfair prejudice arises if those two cases aro tried separately? The answer to that question is, there can be none. And 2 63 about whether they aro going to proceed against Mr. Rothstein if Your Honor accepts the argument that they are making. Now, I have had substantial experience 5 one of the reasons why there will be none before this Court. And your Honor is not a 6 7 is, the separate case against Mr. Rothstein, I predict, will never be tried. If it is ever tried, it's a one-day Judge who has ever been deterred from doing what you consider to bo the right thing to do because there's the throat of an appeal. 9 . It's a jury selection without any They want to petition for writ of 10 opposition) there's a presentation of a case 10 mandamus, bring it on. And if the appellate 11 without any opposition) there's a closing 11 court believes that the arguments that are 12 argument without any opposition. The case 12 being made today have merit, wo will know 13 is over in a day. And what they get, if 13 before we finish our preliminary screening 14 they get anything, is an uncollectiblo 14 of the jury on Tuesday. 25 judgment. IS The Court will act immediately, knowing 16 THE COURT: What about the pretrial 26 that this case is going to proceed to trial. .7 stipulation? Judge Clklin speaks, again, at 27 And whatever concerns Your Honor has -- and 18 length, about the sanctity of the pretrial :8 there should be none -- whatever concerns 19 stipulation. 29 Your Honor has will get resolved very 20 HR. SCAROLA: Yes, sir. 20 quickly under those circumstances. II THE COURT: He calls it the attempt is II If there has ever been an argument for 22 to, quote, avail ourselves of the 22 waiver -- if there has ever been a clear 29 opportunity to once again stress the 22 demonstration of no prejudice, this record 24 tremendous efficacy of The Pretrial 24 establishes that. 25 Stipulation. He puts mach of the words, 25 Judge Hay's words, •Depending upon the 62 64 1 •The Pretrial stipulation• in capital circumstances, the mandatory provisions of 2 letters -- strike that. In capitals to 2 rule 1.1440 may be waived.' 3 start each of those words, and drops a They have been valved. They agreed 4 footnote stating, quote, out of respect for that this case was going to be triad without 5 and to dignity the use of The Pretrial any further delay starting next week. They 6 Stipulation wo have intentionally told Your Honor they would be ready for 7 capitalized the name of this Important trial . They told Your Honor they aro not 8 efficiency tool, end quote. asking for a continuance. They told Your 9 MR. SCAROLA: And Your Honor, has noted 9 Honor they aro ready and anxious to try this 20 the operative language. Your Honor has 20 case. 21 noted the reservation that is preserved in 22 Thera has been a waiver of any 22 that pretrial stipulation about concern for 22 technical objection that might exist, but 22 prejudice. 22 there's no technical objection. There is no 24 So there's nothing in that pretrial 14 technical objection. .5 stipulation that supports the position that 35 This is a separate claim. It has 16 is being argued on behalf of Kr. Epstein, 16 proceeded as a separate claim. It was 17 and that is, that we have somehow agreed 17 noticed for trial as a separate claim. 10 that we are going to delay our right to 10 There is nothing in the pretrial stipulation 19 trial by jury while we wait -- perhaps 19 that suggests otherwise. 20 forever -- for the claim against 20 Me have not stipulated with regard to 21 Mr. Rothstein to be placed at issue. 21 anything having to do with the Rothstein 22 They can't get a default today. 22 case, because we don't represent 23 There's been no notice. I don't know 23 Kr. Rothstein. His signature and no 24 whether they're over going to get a default. 24 signature of counsel of his appears on that 25 We bacon/. hostage to their decision 25 pretrial stipulation. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793896 2 3 4 5 6 7 8 9 10 11 12 13 14 25 26 .7 30 39 20 SI 22 IS 24 25 65 This pretrial stipulation relates to the trial of what is a separate cause of action by Bradley Edwards against Scott excuse me -- against Mr. Epstein. Judge May, again, •Mere the complain: was flied in 2002. The parties had adequate time to prepare for the hearing, and the trial court had provided the parties with the requisite 30-day notice. There was no ambush or violation of the procedural safeguards that Rule 1.440 was designed to protect. That's this case. There is nothing but, at vary best, a hyper-technical argument that LS being raised. They are refusing to waive it, because they don't want this case to ever b0 tried. And if Your Honor is concerned about the mountain -- the avalanche of paper with which this court has been assailed, I can assure you that it isn't going to stop if wo don't start on Tuesday. It's going to got worse. The defense, in violation of this Court's order, last weak listed 724 new 10 11 12 13 14 35 16 27 20 29 20 II 22 IS 24 25 67 So the solution is very simple. whether It's a claim or a counterclaim, you have the discretion to sever it. It gets severed. The case is at issue. It goes to We are ready to proceed, and we ask you for the right to be able -- enforcement of the right to be able to proceed. Thank you, air. THE COURT: Thank you, Mr. Scaroia. Thank you, Mr. Link and Hs. Rockenbach, as well. MS. ROCKEHBACH: Your Honor, may I hand the Court one case? I apologize. It's cited in my motion. Hay I approach? THE COURT: Sure. MS. ROCKEHBACH: It la the Bennett case. Because -- THE COURT: I have it. Bennett versus Continental Chemicals? MS. ROCKEHBACH: Right. And just to respond to Mr. Scarola with regards to -- HR. SCAROLA: I'm sorry, Your Honor, can wo put an and to this, because there's a 66 exhibits that they want to use. And they 68 lot that we need CO do? 2 are going to use this hyper technicality to 2 THE COURT: I thought that she just 3 say the pretrial order was invalid because 3 wanted to mention the case. the case was not at issue; a new pretrial 4 MS. ROCKEHEACH: I do. order needs to be issued; discovery is not 5 THE COURT: I have it here and I have yet closed) wo have an opportunity to 4 it highlighted. I have reviewed the 7 proceed to take additional discovery) and we can amend our exhibit list, and w0 can highlighted provisions of the case. MS. ROCKEHEACH: Thank you. It is 9 include 724 new exhibits, and more which about the fact that you can't cure the 30 they say they aro still finding. :0 defect. 31 Tho only way to put an end to this is 21 MR. SCAROLA: I'm sorry. I'm objecting 22 to proceed to trial as Tour Honor informed 22 to further argument, Tour Honor, and ask 29 everyone we would, in no uncertain terms, 29 that WO p move on. 24 the lint time this case was reluctantly 14 THE COURT: I will give you a minute to 35 continued by this Court. 35 finish up. 16 So again, my client has been waiting 16 MS. ROCKEHBACH: Thank you, Your Honor. 17 for nine years to clear his name from the 17 In Bennett, the party, just like 18 defamatory allegations that were made 18 Mr. Edwards is doing here, suggested to the 19 against him in a maliciously flied lawsuit. 19 court to sever in order to fix the rule 20 Ho was accused of heinous crimes, of 20 1.440 deficiency, and the appellate court 21 balmy associated with ono of the most 21 said no you can't do that, and •The 22 massive Ronal schemes in history. And the 22 procedure for setting actions for trial is 23 only way he can effectively exonerate 23 simple, but many attorneys aro careless 24 himself is by getting his day in court, and 24 about it. They serve a notice for trial 25 he deserves to hive that now. 25 prematurely. This requires a motion to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793897 69 71 1 strike. And there's not excuse for falling I THE COURT: By the first blush it 2 to follow the rule.• And it goes on about 2 doesn't look like it has anything to do 3 how the rule is not directory, it's 3 with -- 4 mandatory. 4 MR. LINK: We don't see a reference, 5 So this Bennett case speaks to exactly 5 Your Honor. 6 what is evolving hero in terms of the 5 THE COURT: It talks about fundamental 7 severance issue. It doesn't correct the error, is really what It goes to. 8 defect. Thank you. B It cites to the case and its citation 9 THE COURT: Thank you. 9 is, quota, We have not boon as willing as 10 MR. SCAROLA: Does Your Honor want a 10 some of our sister courts to find 11 response? 11 fundamental error whore an objoction had 12 THE COURT: No. 12 boon raised by the trial court -- strike 13 MR. SCAROLA: Thank you, sir. 13 that -- had boon raised in the trial court. 14 MS. ROCKENBACH: And, Your Honor, we do 14 The error could have boon corrected and a 15 have a motion for default that we filed 25 new trial would have been unnecessary. 26 simultaneously. And I have a proposed order 16 Ono of the string of cites cites that 27 for the Court. 27 Bennett case. There is no specific 26 THE COURT: Thanks. 20 application of that case to this ono hare. 19 I don't know if you've looked at the 29 My ruling is as follows: Tho Court has 20 O'Brien versus Florida Birth-Related 20 In preparation for this hearing carefully 21 Neurological Injury Comp 21 weighed the respective positions taken by 22 Association, a case which is from the Fourth 22 the parties. And I appreciate the 22 District, which indicates that it negatively 22 well-written briefs and the well-articulated 24 treated the holding -- at least ono of the 24 positions taken as it relates to this issue. 25 holdings in Bennett versus Continental. And 25 Tho controlling case hero in the Fourth 70 72 1 2 9 it is a Fourth District Court of Appeal case, similar to the reliance by Epstein, principally, on the Gawkor versus Bolloa District, as far as the Court is concerned, is the Labor Ready Southeast, Inc. versus Australian Warehouses Condominium 4 case. Bollea, if I recall correctly, is A Association case. But not so much for the S Hulk Hogan from wrestling. Court's position that it's taking as it 6 MS. ROCKEHBACH: Correct. relates to waiver, which the Court will use 7 THE COURT: But again, this Labor Moody as a secondary proposition in its ruling 4 case, authored by Judge May that wo have a today, but more so the spirit and intent of • been speaking about, declined to extend the S the case and the message that Judge May and :0 Cawkor case to its handling of the Labor 10 her colleagues, in my respectful view, sent :2 Ready case from the Fourth. II to the trial courts and the litigators, 12 I haven't soon the O'Brien case. I 12 particularly here in the Fourth District 32 will give it a real quick look, so that I IS Court of Appeal jurisdictional area. 24 can be as comprehensive as possible. 14 The primary ruling and what the Court 26 MS. ROOM/MACH: Is that at 942 So.20 IS is going to determine here is that it will 16 10307 16 sever the claims and will try and proceed 17 THE COURT: It doesn't give me a 17 with the Edwards versus Epstein matter 10 citation in this. It just says Fourth IS commencing as scheduled on Tuesday, 19 District Court of Appeal. March 18th, 1998 19 March 12, 2018. 20 is the date o0 decision. It doesn't give me 20 Today being, for the record, and for 21 a cite to report. 21 ease of review, March 8th, 2018. Reference 22 But I can look It up real quickly. 710 22 being made to Friday, March 2, 2018. So, 23 So.2d 51. 23 again, for ease of review. 24 MS. ROCKENBACH: I am reading that case 24 Because, frankly, when I'm reading 25 right now, Your Honor. 25 appellate briefs sometimes from the county Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793898 I 2 3 a S 73 court, it makes it so much easier when the trial judge sots forth the dates as opposed to having to go back and try to reconstruct the timeline when the court is naking its ruling. I 2 3 4 • 75 SO now we're dealing with approximately seven years ago -- seven plus years ago from the tine that the action was brought by Mr. Edwards against Epstein. Technically, because there nay not have 4 The severance is based on the fact that 4 been an order signed by the Court, whatever 7 there is no legal relationship between the 7 closing documents that are usually and 8 Edwards case against Epstein and the damages 8 customarily dealt with in closing out a 9 claim by Epstein against Rothstein solely on 4 film, nay not have boon in the court file at 10 a singular-count-amended complaint -- again, 10 that time, perhaps, technically, it 11 forgive the lack of specificity as to the 11 constituted a counterclaim. But undeniably, 12 iteration of the amended complaint -- but 12 the trappings, the name, the legal effect 13 again, as late as Septenber of 2011 -- six 13 was not a counterclaim at all, and certainly 14 and a half years ago -- and the fact that 14 bore no semblance to a counterclaim once 15 the Epstein team failed in its capacity, as 15 Rothstein dropped Edwards -- once Epstein 16 reasonable trial lawyers, to have secured In dropped Edwards -- I apologize -- and 17 the default, if it sought same, so as to, in 17 proceeded solely against Rothstein. 26 good faith, maintain les claim against 16 And whether severance took place or a 19 Rothstein. 10 separate claim would have been brought in 10 I have no recollection whatsoever of 20 December of 2009 -- albeit because of the II anything caning up during the approximate 21 potentiality of the pleadings not being 22 four years that I have presided over this 22 closed, so to speak, as to Edwards at that 23 case in division AG of anything whatsoever 29 particular time, so it nay have been called 24 having to do with Mr. Epstein's prosecution 24 a counterclaim. But certainly, and without 25 of that one-count complaint against 25 equivocation, once that case shifted -- now 74 76 1 Rothstein from that September 2011 amended I Mr. Epstein didn't have to shift it. But it 2 complaint. 2 was by his own doing. Me shifted it, 9 Meaning the entire focus of this Court 9 because he no longer had Edwards as a 4 in the nultipie hearings that have boon 4 defendant in the case. Me took that 5 held, in the deluge of paper that -- in part 5 operative step. 6 the Court brings on itself because of its 0 So it was in name only that this 7 preference to have the hard copies, as 7 continued having the moniker of a 6 opposed to utilizing modern technology and 6 counterclaim, but it wasn't one. It had the 9 solely the computers. It's much easier for 9 genesis in Epstein versus Rothstein, Edwards 10 me, frankly, and my oyez, physically, to 10 and L.M. case so as to permit Edwards to II have the paper. It's not because of 11 bring the claim against Rothstein. But 12 necessarily wanting it. It's more so 12 undoubtedly, it no longer was a counterclaim 13 because of it's easier on my oyes and causes IS for at least the past seven or eight years- 14 much less strain on my eyes than having to 14 And in name only, I am not going to 15 rely on )ust the computer copy. I wanted 15 remove this case from the docket on what is 16 you to know that as well. 16 unquestionably hero a hyper technicality. 17 So severance in this case, whether it 17 If I'm directed by the Fourth District 10 was done in September of 2011 or even before 18 Court of Appeal to do so, I will, as always, 19 that, when the -- what is called the 19 assiduously follow their order. But I do 20 counterclaim, but in this Court's view is 20 not believe here -- because the focus of the 21 not. It may have boon because at the tine 21 last eight years has been Edwards' claim 22 back in December of 2009 -- if I'm not 22 against Epstein. And in reality, in name 23 mistaken is when the Edwards claim was 27 only, since the dropping of Edwards from 24 brought in against Epstein. That's the 24 Epstein's case, his own voluntarily 25 approximate tine. 25 dismissal or Edwards, creating a separate Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793899 77 79 claim, albeit having its genesis, as all 2 malicious prosecution claims do, in that prior action, there is nothing that has been 4 argued to today to suggest that a separate 5 action has boon, could have boon, and, in 6 fact, is at issue hero. And that has boon 7 the focus, and the only focus that I am 0 aware of, juxtaposing the Epstein versus 9 Rothstein case here) that being the only 10 focus has been for the last seven or fright 11 years) and clearly the tours years that I 12 have boon presiding over this case, solely 13 the Edwards versus Epstein malicious 14 prosecution claim. 35 And again, I am not going to be bound, 16 and I don't think any trial court should be 17 bound by the choice of words that may have 16 boon used to nano a given pleading. 39 It's a separate claim, and it has boon. 20 And clearly and without equivocation has 22 been since, somewhat ironically, what has 22 been brought this matter before the Court is 29 the September 2011 claim that was solely 24 brought by Rothstein -- I mean, by Epstein 25 against Rothstein. 10 11 12 13 14 IS 36 37 28 29 20 91 22 29 24 25 Court to enter a default. MS. ROCKENBACH: Understood. THE COURT: And since this is, again, a later iteration of a complaint to which my understanding was -- ho did respond in some fashion originally through counsel or not? Or was he defaulted from -- MS. ROCKENBACH: Earlier on. I'm told by co-Counsel early on. we served it on Hr. Nurik, Mr. Rothsteln's counsel. The question I am asking is whether It was noticed for hearing today. It went out yesterday. THE COURT: That wouldn't have boon an appropriate notice. So it would have to be re-noticed to Nr. Wurik, and we will proceed accordingly once what appropriate notice has boon provided. MS. ROCKENBACH: Correct. THE COURT: I just want to make clear, as well, that I have taken into account, by virtue of the ruling that I have made, the contention that somehow trial strategy -- and that was at the behest of the court. I don't believe it was argued in the motion. 1 2 3 S 6 8 9 30 31 33 24 35 16 17 10 78 It essentially highlights the precise position that is being taken by this Court legally, factually and practically. And that's the best that I can do. MS. ROCKENBACH: Thank you, Your Honor. I have proposed orders that just simply grant Kr. Edwards' motion to sever and denying Epstoln's motion to ramose. And I also have a default for Your Honor, along with the motion for default, if you would like to entertain that as well. THE COURT: Any objection? HR. SCAROLA: We don't represent Mr. Rothstein, Your Honor. But I don't know how that default can be entered without notice to Mr. Rothstein. He has a counsel, who has appeared in this case. That is, in that case. I don't 19 know whether -- I'm not arguing. I'm 20 expressing a concern. 21 THE COURT! Excuse me. And I apologize 22 for interrupting. 23 What I was going to say is this. If ho 24 has had representation in the case, then ho 25 would have to be noticed in order for the 2 5 :0 II 22 33 14 35 16 17 10 19 20 21 22 23 24 25 80 But again, In my efforts to try to be as fair as I possibly can to both sides, I raised it to hoar from Epstein's Counsel what, if any, prejudice would be done by virtue of the severance. And again, respectfully, again, in my view, I believe that the response that was provided is, in fact, supportive of the Court's position hero. And, that is, the added reason for the Court's severance is the fear of the Court, again, by virtue of its going through thousands of pages of documents by now, hearing scores of motions and being exposed to more, reviewing deposition transcripts, having the anecdotal knowledge that the Court has of Mr. Rothstein's criminal activity, and the fact that it is and was, and potentially continues to be, because of the media attention that remains -- just an example, being a CNBC special that continually runs on American Grood, I believe is the name of the show -- that this biggest Pons,. scheme In the history of state of Florida remains very fresh in the minds of many. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793900 1 2 3 4 5 6 7 9 10 11 12 13 14 25 26 27 20 29 10 fl 11 12 14 15 81 And hence, a second reason, a third reason for severance is the absolute danger of confusion relative to a jury's consideration of Edwards' cases versus Epstoln's case against Rothstein solely. While facts overlap, the Court can consider and would consider the confusion issues as well as the prejudice, undeniably, that would be done hero if both of those cases were tried together. Clearly, as I indicated at the inception of this hearing, I am not p by the events that occurred here. No court should be. The blame is several fold, including the individual who is sitting hero, who ultimately is responsible for the execution of that trial order. So I have, to a degree, blame myself for the execution of that order. And ultimately I bear the responsibility of that, and I recognise that. But at the same time, as I have mentioned on numerous occasions before groups of lawyers, who have boon kind enough to ask rto to speak on those types of issues, 1 2 3 4 9 10 11 12 13 14 35 36 37 le 29 20 11 11 12 14 15 83 And again, I do not want this order to reflect a suggestion that the Court is willing to deviate from the dictates of 1.1440 -- strike that. 1.440. But instead, as I indicated before, the primary Impetus hero is ono of severance for the reasons that I have tried to state as clearly and concisely as I can, balancing the rights, strategies and obligations of each party's concern, balancing what I perceive to be in the best interest of justice to all concerned, balancing the rights of Mr. Epstein to proceed against Rothstein, but at the same time recognizing the separate nature of Edwards' claims against Epstein: and the fact -- Again, while facts may overlap, it does not extinguish the proposition that the Court has indicated, and, that is, whether severance be done now, six months ago, seven years ago, or eight and a half years ago, from December of 2009, it would have boon the appropriate and right thing to do under these particular factual circumstances. All right, we have bumped up now 82 just generally in terms of how we do things 84 against the lunch hour. 2 hero, tips from the bench and the like, we 2 What do you want to handle next? 3 so rely on the bar and exceptional lawyers MR. SCAROLA: Tho evidentiary issues 4 that we have here in terms of our daily that have cropped up in past week or so. 5 business. 5 MR. LINK: Would Your Honor mind 6 That doesn't exonerate the Court in executing the trial order. But it sheds some light on the busyness of the Court, and entering the orders first once we have agreed to the language? THE COURT: That's fine. 9 the fact that we aro, at the present time. Off the record. 30 as you know, responsible In each of the :0 IA discussion was hold off the record.) 31 civil divisions of anywhere between 1,100 to 21 MS. ROCKENBACH: May I approach, Your 31 1,200 cases to 1,5' to 1,600 cases in some 21 Honor? 33 divisions. The lower number is done by 33 THE COURT: Again, commendation to our 34 design because one of our judges has agreed 34 court reporter, who is exceptional and 25 to handle the bulk of the tobacco litigation 35 always such a pleasure to work with. No 16 cases, so that Judge has a reduced caseload, 16 appreciate her work. 17 deservedly so. 17 There is a case that -- from the Fourth 10 But it does highlight our expected 10 District Court of Appeal that criticizes one 19 reliance on counsel so that these things 19 of my now former colleagues in terms of the 20 don't occur in the future. And it's a good 20 order saying, •for the reasons stated on the 21 reminder to all concern about how those 21 record.• 22 things can crop up. 22 So In an abundance of caution, I think 23 But hero hyper technicality should not 23 it would bo best suited for that portion of 24 stand in the way of a pending matter of over 24 transcript to be transcribed. You can do it 25 3,000 days and nearly nine years. 25 rush if you need to. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793901 1 2 85 I am sure Ms. Sonja would be happy to o➢lige to the best of her a➢ility. And, really, only that portion of it so that -- my decision would need to bo rushed, I 87 We will return back at 1:30, so as to give you all some logistic assistance to try to arrange, as you need to, for the court reporter and transcript purposes. 5 think. Keep In mind that we will go to 4:30 6 MR. SCAROLA: Attached, for the reasons today. And also, that I am not available 7 stated on the record. Attached. tomorrow. I have several panel commitments 8 THE COURT: If both sides feel that for the bench bar tomorrow. And so that 9 that's sufficient. 9 would preclude any further consideration. I 10 Ms. Rockonbach, is an appellate 10 do have a full day of hearings on Monday as 11 specialist. I defer to her specialty. 11 well. 12 Mr. Scarola, I know you have also ➢een 12 MS. ROCKENBACM: Your Honor, before we 13 involved In numerous appeals, whether 13 break, anticipating a potential adverse 14 directly or indirectly, but your name 14 ruling, I have a motion to stay the matter, Is appears on many appellate decisions. 36 which is then immediately reviewable as le Again, I concede to your expertise only 36 well. to ➢ring up the fact that one of our moat 37 The motion to stay that I have I did le respected and one of our former Circuit 38 not anticipate this court severing the 23 court judges was criticised for the order In 29 cases. It was only the adverse ruling of 20 21 the manner In which it's being presented to 20 the removal of the case from the trial docket. So I would like to revise that 22 MS. ROCKENBACR: You're correct. I am 22 motion. But I would make an ore [anus 22 aware of that decision, unfortunately. And 22 motion to stay this action in order for 24 I would ask the Court for a ➢reak so that 24 Mr. Epstein to filo the petition for writ of 26 our court reporter could type up the -- not 26 mandamus as to the order denying the motion 86 88 1 just the ruling, but wo need the entire to remove the case from the trial docket and 2 hearing transcript In order to have a 2 a petition for writ or certiorari as to the 3 complete record. order granting Mr. Edwards' motion to sever. 4 So we would ask for a change In court THE COURT: Mr. Scarola. reporters, as reluctant as I am to do that. 5 MR. SCAROLA: We would clearly object 6 I know it's my duty to my client and to the Court. THE COURT: I respect that. And again, you will have to deal with Sonja directly. to a stay, Your Honor. It would effectively be granting the same relief that the defense has boon unsuccessful in obtaining. We aro confident that Your Honor's 30 For the record, again, I apologize for :0 order will withstand appellate review. And 11 not using her last name. He have known each 2 a petition for writ of mandamus is an 22 other for many years. And I know she takes 22 expedited proceeding. I am sure we will 23 no po qualms at lt, because we have 23 hoar from the appellate court if they have 24 spoken about that before. But at the sane 24 any reason whatsoever to question the 2$ time, any review by the court, I would ask 36 proprietary or the order that Your Honor has 16 that they excuse my lack of formality here. 16 entered. 17 MR. SCAROLA: We have no problem with 17 THE COURT: The motion to stay from 18 brooking for lunch at this point so that wo 10 this Court is denied. 19 can arrange a change of court reporters. 19 MR. SCAROLA: Your Honor, I expect what 20 The only appeals I remember, Your 20 we will deal with after lunch are issues 21 Honor, aro the ones I lost. 21 that relate to the most recently disclosed 22 THE COURT: Again, thank you for your 22 documents, Including, in particular, *mails. 23 concerns and your patience as well. 23 THE WITNESS: That's what I anticipate. 24 I also recognize and thank Its. Musgrave 24 MR. SCAROLA: And I have a timeline, 25 for being hero. 25 which I provided to opposing counsel. I am Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793902 I 89 going to hand that to Your Honor in case you 2 want to chew on that over lunch. 3 MS. ROCKENBACH: Your Honor, If I may 4 approach. 5 THE COURT: Sure. 6 MS. ROCKENBACH: I have one submission 7 to the Court. It was hand-delivered 0 y 00000 day before we received your judicial 9 assistant's email a➢out no future 10 submissions. But it relates to this issue. 11 THE COURT: I can't promise you that I 12 will have time to road it. 13 MS. ROCKENBACH: Understood. 14 THE COURT: I will do the beat I can. 25 MS. ROCKENBACH: Thank you vary much. 16 THE COURT: Thank you all again for 37 your excellent presentations and argument:. 30 We will be in recess until 1:30. 39 - - - 20 (The a➢ove proceedings were 21 concluded at 12:08 p.m.) 22 21 14 25 90 1 COURT CERTIFICATE 2 3 4 STATE OF FLORIDA ) 5 : SS COUNTY OF PALM REACH ) 6 7 I, SONJA O. HALL, certify that I was e authorized to and did stenographically report the 9 foregoing proceedings and that the transcript is a 10 true record of my stenographic notes. 31 12 19 Dated this 8th day of March 2010. 34 15 Id 17 SONJA D. HALL 20 39 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793903 91 A a.m 1:15 59:12,12 abandonment 42:25 abiding 22:4 ability 22:24 25:9 33:23 55:3 85:2 able 40:25 51:4 57:11 67:7,8 above-style 54:13 above-styled 7:3 10:4 absolute 32:12 81:2 absolutely 6:7 15:24 15:25 16:9 22:23 29:23 32:18 33:3 33:11 37:21 52:23 53:6 57:20 abundance 84:22 abuse 23:6,10 accept 24:14,15 31:24,25 accepted 31:18 accepts 63:2 accessible 49:7 account 79:21 accused 5:16 16:16 16:21 66:20 accusing 16:19 act 63:15 action 3:16 7:3 10:5 14:20 26:9 27:3.9 27:17 33:18 35:7 35:10,16 36:4 37:6,8 38:25 39:5 39:13 54:14,17 55:1,6,6,22 57:18 60:1 65:3 75:3 77:3,5 87:23 actions 68:22 activities 32:19 activity 3:4 80:17 actual 30:17 44:13 add 52:4 added 46:25 80:10 adding 30:14 additional 66:7 address 4:11 25:9 adduced 32:22 adequacy 13:11 adequate 65:6 Adler 32:11 Administration 19:18 administrative 53:4 admire 41:4 admissible 24:1 adverse 87:13,19 aforesaid 1:21 afraid 16:5 AG 73:23 age 4:1 ago 39:6 43:1 73:14 75:2,2 83:20,21 83:21 agree 27:19 46:9 47:2 56:15,25 agreed 4:10 62:17 64:3 82:14 84:7 agreement 43:21 45:21,23 agrees 46:21 air 34:4 a149:2 albeit 25:19 27:8 39:1 60:3 75:20 77:1 allegation 58:16,19 allegations 24:10,14 24:16 31:9,12,17 31:23 66:18 alleged 24:6 32:17 allow 18:12 21:18 33:18 ambush 65:10 amend 66:8 amended 6:9 27:16 36:8 43:9 51:9 73:12 74:1 amendment 9:5 34:23 amendments 30:12 American 80:22 amount 3:7 12:12 17:4,23 19:1 anecdotal 17:18 80:15 anecdotally 17:17 answer 8:24 25:10 34:8 59:4 61:3 answered 57:4 anticipate 87:18 88:23 anticipated 60:2 anticipating 87:13 anxiety 58:11 anxious 64:9 anybody 44:11 anyway 50:7 apart 37:21 apologize 16:3 37:11 67:14 75:16 78:21 86:10 apparent 23:21 appeal 6:19 7:21 14:18 28:13 29:16 40:23 49:5 63:8 70:1,19 72:13 76:18 84:18 appeals 85:13 86:20 appear 25:4 APPEARANCES appeared 78:17 appears 64:24 85:15 appellate 29:8,10 29:25 52:4 63:10 68:20 72:25 85:10 85:15 88:10,13 application 37:7 71:18 applied 6:5 applies 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available 87:6 avalanche 65:19 Ave 2:17 avoided 3:15 aware 77:8 85:23 B back 3:25 12:16 17:22 18:22 28:22 28:23 43:1 44:7 52:19 54:24 59:10 73:3 74:22 87:1 backdrop 4:3 balancing 83:8,10 83:12 bar 19:25 82:3 87:8 BARNHART 2:7 barrage 3:3 5:5 based 17:3,17,17 30:19 73:6 basically 31:11 basis 29:7 30:23 32:11,23 33:3 Beach 1:2,16,23,24 1:24 2:4,5,8,9,18 49:2 90:5 bear 81:19 bearing 41:9 bears 40:6 beautiful 50:5 begins 32:16 behalf 18:25 25:4 34:24 62:16 behest 79:24 believe 4:9 6:1 14:17 42:13 49:10 76:20 79:25 80:7 80:22 believed 22:20 believes 63:11 bench 49:1 82:2 87:8 Bennett 8:18 9:24 52:16 67:17,19 68:17 69:5,25 71:17 BERARD 2:5 best 3:19 19:19 20:2 49:23 65:13 78:4 83:11 84:23 85:2 89:14 better 37:5 39:22 biggest 80:23 Birth-Related 69:20 blame 81:14,18 blush 71:1 Bollea 70:3,4 bore 75:14 bought 26:16 Boulevard 1:24 2:4 2:8 bound 47:10 77:15 77:17 box 9:2 Bradley 1:8 24:2 26:5 65:3 break 59:10 85:24 87:13 breaking 86:18 brevity 44:22 brief 44:13,20 briefs 71:23 72:25 bring 63:10 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