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Case 09-34791-R BR
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ORDERED in the Southern District of Florida on September 4, 2018.
IN RE:
CHAPTER II
Debtor.
Raymond B. Ray, Judge
UNITED STATES BANKRUIPPeittatr iPtcY Court
SOUTHERN DISTRICT Or FLORIDA
www.flsb.uscourts.gov
CASE NO. 09-34791-RBR
THIS CAUSE came before the Court upon the agreement of (1) Bradley J. Edwards
("Edwards"), (2) Jeffrey Epstein ("Epstein"), (3) Fowler White Burnett, P.A. ("Fowler White")
and its insurer, (4) Intervenors Jane Doe, L.M. and E.W. (collectively, "Intervenors"), and (5)
Farmer Jaffe Weissing Edwards Fistos and Lehrman ("Farmer Jaffe") (collectively, the
"Mediation Participants"), to participate in mediation subject to this Agreed Mediation
Confidentiality Order. The Court, hereby
ORDERS AND ADJUDGES as follows:
I.
Pursuant to Florida Rule of Civil Procedure 1.720, Edwards, Epstein, and
representatives from Fowler White and Farmer Jaffe who have the full authority to settle without
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further consultation shall appear at the mediation in person. In addition, a representative of
Fowler White's insurance carrier who has full authority to settle in an amount up to its policy
limits without further consultation shall appear at the mediation in person.
Finally, the
Intervenors' counsel, who shall have full authority to settle the matter without further
consultation, shall appear at the mediation by telephone.
2.
The mediation proceeding is confidential and privileged as settlement
negotiations. All statements made during the course of the mediation are privileged settlement
discussions, are made without prejudice to any Mediation Participant's legal position and are not
discoverable or admissible for any purpose in any legal or administrative proceeding whatsoever.
3.
Florida law applies and governs the mediation including, but not limited to,
Chapter 44, Florida Statutes, and the following specific confidentiality provisions:
a.
Florida Statute Section 44.403:
44.403 Mediation
Confidentiality
and
Privilege
Act;
definitions.-As used in ss. 44.401-44.406 the term:
(1) "Mediation communication" means an oral or written
statement, or nonverbal conduct intended to make an assertion, by
or to a mediation participant made during the course of a
mediation, or prior to mediation if made in furtherance of a
mediation. The commission of a crime during a mediation is not a
mediation communication.
(2) "Mediation participant" means a mediation party or a person
who attends
a
mediation
in
person
or
by
telephone,
videoconference, or other electronic means.
(3) "Mediation party" or "party" means a person participating
directly, or through a designated representative, in a mediation and
a person who:
(a) Is a named party;
(b) Is a real party in interest; or
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(c) Would be a named party or real party in interest if an action
relating to the subject matter of the mediation were brought in a
court of law.
(4) "Mediator" means a neutral, impartial third person who
facilitates the mediation process. The mediator's role is to reduce
obstacles to communication, assist in identifying issues, explore
alternatives, and otherwise facilitate voluntary agreements to
resolve disputes, without prescribing what the resolution must be.
(5) "Subsequent proceeding" means an adjudicative process that
follows a mediation, including related discovery.
b.
Florida Statute Section 44.405(1) and (2):
44.405 Confidentiality; privilege; exceptions.—
(1) Except as provided
in this section,
all
mediation
communications shall be confidential. A mediation participant
shall not disclose a mediation communication to a person other
than another mediation participant or a participant's counsel. A
violation of this section may be remedied as provided by s. 44.406.
If the mediation is court ordered, a violation of this section may
also subject the mediation participant to sanctions by the court,
including, but not limited to, costs, attorney's fees, and mediator's
fees.
(2) A mediation party has a privilege to refuse to testify and to
prevent any other person from testifying in a subsequent
proceeding regarding mediation communications.
c.
Florida Statute Section 44.406:
44.406 Confidentiality; civil remedies.—
(1) Any mediation participant who knowingly and willfully
discloses a mediation communication in violation of s. 44.405
shall, upon application by any party to a court of competent
jurisdiction, be subject to remedies, including:
(a) Equitable relief.
(b) Compensatory damages.
(c) Attorney's fees, mediator's fees, and costs incurred in the
mediation proceeding.
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(d) Reasonable attorney's fees and costs incurred in the
application for remedies under this section.
(2) Notwithstanding any other law, an application for relief filed
under this section may not be commenced later than 2 years after
the date on which the party had a reasonable opportunity to
discover the breach of confidentiality, but in no case more than 4
years after the date of the breach.
(3) A mediation participant shall not be subject to a civil action
under this section for lawful compliance with the provisions of s.
119.07.
4.
The mediation is being conducted in both this action (In re Rothstein Rosenfeldt
Adler, P.A., U.S. Bankruptcy Court, Southern District of Florida, Case No. 09-34791-RBR) and
the State Court Action (Jeffrey Epstein v. Scott Rothstein and Bradley J. Edwards, 15th Judicial
Circuit Case No. 50-2009-CA-040800XXXXMBAG), and will also address Epstein's potential
claims against Fowler White.
5.
For the limited purpose of the mediation, Epstein's 47 trial exhibits (the "47 e-
mails") that Edwards claims are privileged and are currently under seal may be shown by
Edwards' attorneys only to the mediator, Fowler White's attorneys and Fowler White's
insurance carrier representative. Edwards' counsel shall bring Edwards' copy of the 47 e-mails
to the mediation for this limited purpose. Edwards' counsel shall be present at all times during
any review of the e-mails. No copies of the e-mails may be made and no notes may be taken
regarding their content.
6.
The use of the 47 e-mails during mediation will not constitute an additional
argument of a waiver by Epstein of any privilege claimed by Edwards, Farmer Jaffe or the
Intervenors. However, this does not vitiate or limit Epstein's existing waiver arguments, which
are preserved pending further rulings of this Court.
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The Clerk shall provide copies to:
Chad Pugatch, Esq.
[Attorney Pugatch is directed to serve a conformed copy of this Order on all interested parties
immediately upon receipt hereof and to file a certificate of service.]
2086255
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