DS9 Document EFTA00800982

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff, VS. SCOTT ROTHSTEIN, individually, BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS DATE TAKEN: Thursday, December 7th, 2017 TIME: 10:01 a.m. - 12:57 p.m. PLACE 205 N. Dixie Highway, Room 11B West Palm Beach, Florida BEFORE: Donald Hafele, Presiding Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by: Sonja D. Hall Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 Palm Beach Reporting Service, Inc. EFTA00800982 2 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: For Plaintiff/Counter-Defendant: LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, FL 33401 By KARA BERARD ROCKENBACH, ESQUIRE By SCOTT J. LINK, ESQUIRE For Defendant/Counter-Plaintiff: SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 By JACK SCAROLA, ESQUIRE By DAVID P. VITALE, JR. For Jeffrey Epstein: DARREN K. INDYKE, PLLC 575 Lexington Avenue New York, NY 10022 By DARREN K. INDYKE, ESQUIRE Palm Beach Reporting Service, Inc. EFTA00800983 3 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Have a seat. Today we are going to go first with the Fifth Amendment issues dealing with the transcripts and the discovery responses of Mr. Epstein. Are we prepared to proceed with that? MR. SCAROLA: I am, Your Honor, yes. MS. ROCKENBACH: Your Honor, if we could, there were just two quick issues that we could clean up on the omnibus motion. I think Your Honor has tangentially discussed them. They're items D and E. I think we need a definitive ruling, and I don't believe it would take more than five minutes. THE COURT: What is it that you are speaking about? I didn't bring -- it is a large binder and I didn't bring it with me. MS. ROCKENBACH: Your Honor, issue D on page 27, is that the Court should excluded references to any cases against Epstein which were not prosecuted by Edwards. You previously have stated on the record that we would constructively try other sexual abuse or assault claims. And you did indicate that Mr. Epstein's suits Palm Beach Reporting Service, Inc. EFTA00800984 4 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that were brought by Edward's clients -- E.W., L.M. and Jane Doe -- were relevant. So I just wanted, for the record, to be definitive, in that, we are not trying the other claims that may have been represented by other attorneys -- like Mr. Scarola, Mr. Josefsberg -- because they would be not only irrelevant, they would be very prejudicial to my client receiving a fair trial. THE COURT: Mr. Scarola. MR. SCAROLA: It is not my intent to get into the merits of any of the other claims. However, because motive is clearly relevant and material, and because malice is relevant and material, both with regard to the primary claim and with regard to the punitive damages claim, we respectfully suggest that it is error if we were not permitted to talk about what Mr. Epstein's motive was for taking the extraordinary step of filing a baseless claim against Bradley Edwards. THE COURT: Well, until we get into, Palm Beach Reporting Service, Inc. EFTA00800985 5 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 obviously, what may or may not be asked of Mr. Edwards and Mr. Epstein principally on these cases or these issues, the global order of the Court would be that those individual claims would not be subject to discussion as to the merits, as Mr. Scarola has stipulated. However, as it relates to both probable cause, i.e., motive and malice, the number of claims -- that is, speaking in terms of volume -- that Mr. Epstein was facing at the time that he brought the suit and continued the prosecution of that suit would be relevant. So that's the distinction being drawn by the Court, the detail, the merits, whatever may have been discovered as it relates to those cases would not be individually admissible in evidence, or any of those details from those cases. However, as I said, the sheer number of cases may be relevant, i.e., to tend to prove or disprove a material fact as it relates to probable cause and malice. So that's the decision. Next issue, please. Palm Beach Reporting Service, Inc. EFTA00800986 6 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: Excuse me. May I also ask for this clarification, Your Honor? Will we be permitted to discuss the fact that Mr. Edwards had taken a leadership role in coordinating the prosecution of all of those claims, that is, that it was a it was a unified effort on the part of multiple law firms that Mr. Edwards was playing a leadership role, which then led to a basis to focus upon Mr. Edwards because of that leadership role? THE COURT: If that's based on fact, then I believe it would be -- you would be able to introduce that, yes. MR. SCAROLA: Thank you, sir. THE COURT: Because, again, it tends to prove or disprove a material fact, i.e., probable cause, motive, malice. Again, whether or not the jury accepts that -- it's going to be up to the jury to accept it, reject it, give it the weight it deserves, or to infer anything that they reasonably believe would be inferrible as a result of that information. The next issue, please. Palm Beach Reporting Service, Inc. EFTA00800987 7 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. ROCKENBACH: Thank you, Your Honor. The next -- I think based on that ruling, Your Honor would preclude the settlements of any of the claimants, including the settlement amounts of the three that were represented by Mr. Edwards. And in our motion in limine, we cited the Florida Evidence Code 90.408, which precludes the admissibility or evidence of offers to compromise or settlements to prove liability or absence of liability. The cases settle all the time for many different reasons. And I know that value has become an issue in this case of Mr. Edwards' three claimants, but certainly not of any of the other claims that Mr. Epstein may have settled. So that's the first issue. Any other cases that he may have settled are wholly irrelevant and should be precluded. THE COURT: Let me understand. The issue of any settlements outside of the three people, I don't have a problem with in terms of introducing that information. In other words, I don't intend to allow Palm Beach Reporting Service, Inc. EFTA00800988 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that information to be introduced, unless I can be persuaded otherwise. MR. SCAROLA: I don't intend to attempt to persuade you at this point in time. I don't mean to interrupt the Court, but I thought it might abbreviate things. THE COURT: That's fine. MR. SCAROLA: I don't intend to attempt to convince the Court at this point in time that that evidence is admissible. I can, however, foresee that it becomes relevant and material. THE COURT: You are talking about those individuals outside of the three -- MR. SCAROLA: Yes, Your Honor. THE COURT: -- that we have been speaking about at length. MR. SCAROLA: And I am only raising that now, because, although I don't intend to contest admissibility at this point, I foresee the potential that it may be admissible and therefore it should be discoverable. We should be able to discover what Mr. Epstein's economic motive was to attempt Palm Beach Reporting Service, Inc. EFTA00800989 9 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to avoid liability in all of those other cases, because his economic motive in attempting to avoid liability -- not only of the three cases settled for $5.5 million, but for the liability in all of the other cases as well -- could become relevant and material, since it's reasonably calculated to lead to discoverable evidence. I would ask -- and this may or may not be the appropriate time to address this, but it relates directly, so I think that it is -- I would ask that Mr. Epstein be compelled to respond to discovery with regard to each of those settlements. THE COURT: All right. Do you know how many cases were actually filed against him for the same or similar activities that were alleged by the three individuals here? MR. SCAROLA: Right now I would only be guessing, Your Honor. THE COURT: I know Mr. Kuvin had several, if my memory is correct, in my division. MR. SCAROLA: Sid Garcia had a number that he was prosecuting as well. There Palm Beach Reporting Service, Inc. EFTA00800990 10 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were -- I think it was close to 20. I think there were approximately 20. I think we have listed each of the case numbers. THE COURT: I won't hold you to the exact number. It is really for anecdotal information. MR. SCAROLA: I think it was about 20. Also, there were a substantial number of additional victims with whom settlements were negotiated in the context of the non-prosecution agreement. Those were all of the victims that were represented by Mr. Josefsberg. THE COURT: So they were claims that were settled without the formal filing of a lawsuit? Is that what you are suggesting? MR. SCAROLA: I think that Mr. Josefsberg may have filed some lawsuits, but I believe he also settled some claims under the terms of the non-prosecution agreement simply by asserting the claims under the federal statute and coming to an agreement with regard to how those were to be resolved without the necessity of filing formal legal proceedings. Palm Beach Reporting Service, Inc. EFTA00800991 11 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But I'm pretty sure that some cases were filed by Mr. Josefsberg. THE COURT: Thank you. Ms. Rockenbach, so as far as the collateral claims are concerned -- by no means am I minimizing those by using that terminology. It's just to distinguish the three cases that are at the heart of this case as it relates to the malicious prosecution claim as opposed to those other folks -- those other young women, in particular, who had either brought suit or made claims that were paid by Mr. Epstein. The ruling of the Court is that I am going to find at this point -- again, subject to further inquiry at a later time and whether or not that becomes an issue is going to be subject to further scrutiny -- but I'm going to find that that information would be discoverable, i.e., what was the total amount of payments made by Mr. Epstein? At this point I am withholding my ruling -- or deferring ruling on admissibility, just for the record -- Palm Beach Reporting Service, Inc. EFTA00800992 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because you all are far better aware of the standard than I -- but the standard being because discovery is broader than what may be admissible at trial, the total amount paid, again, goes back to that place in time when Mr. Epstein would have brought this lawsuit at or near the time of Mr. Rothstein's arrest; at or near the time of federal and perhaps state agents raiding the offices of the firm; at or near the time of these cases reaching a crescendo as far as discovery was transpired; and then ultimately -- at least these three cases settling less than a year thereafter, as I recall. You can correct me if I am wrong. So the motive, malicious, probable cause issues that we have talked about at length in the past, again, because of the nature of discovery being broader than what may be admissible at trial, I am going to require that information be provided, so I'm deferring as to its admissibility. Any confidentiality matters that may have attached to those settlement offers -- strike that -- to those settlement payments Palm Beach Reporting Service, Inc. EFTA00800993 13 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would also have to be discussed at a later time. Section 90.408, for the record, states, though, "Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value. End quote. So this is concerning, obviously, in light of the statute, as to not only the global settlement number that may be involved, but also as it relates to the three individuals. Now, that's not squarely before me today. And I would rather be able to deal with that at some other time so that it's fully briefed and we know where we are going on this, because Mr. Scarola has his own rationale for insisting that the $5.5 million figure associated between the three individuals involve directly here would, in his view, be admissible. Mr. Epstein largely hanging his hat on Palm Beach Reporting Service, Inc. EFTA00800994 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 section 90.408 takes a different view. Similar to the hearsay rule, there are noted and notable exceptions to 90.408, meaning that, in the hearsay context, if the information is not being used to prove the truth of the matter asserted, there are other ways in order to get that information in. Similarly, I am at least generically aware that there have been exceptions that have been stated under the law to 90.408. So again, I would prefer to talk about them at a later time. So I think that, Ms. Rockenbach, what I would suggest you do is separate out, as part of the motion in limine -- my apologies -- if it is, I would ask simply to separate it out and set it for a half-hour special set hearing and we will take it up at another time. I would rather get into, now, these issues of Fifth Amendment privilege that have been scheduled. MS. ROCKENBACH: Yes, Your Honor. Thank you. MR. LINK: Your Honor, may I make one Palm Beach Reporting Service, Inc. EFTA00800995 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 clarification, please? THE COURT: Sure. Of course. MR. LINK: Judge, I think I heard you say that we are required to produce, on Mr. Scarola's ore tenus motion, the settlement agreements. THE COURT: No, I didn't say settlement agreements. I said the gross settlement amount. MR. LINK: Gross amount. Your Honor, for further clarification, would that amount only include those settlements that took place on or after the date that Mr. Epstein filed his Complaint? If you look at their argument, the exposure that still existed is what they believe helps them show motive or malice. Anything settled beforehand, obviously, had been taken care of and should not fit within the description that they gave the Court. THE COURT: Mr. Scarola, your position on that? MR. SCAROLA: First, Your Honor, I'm not sure we're arguing over any practical significance because I don't think any of Palm Beach Reporting Service, Inc. EFTA00800996 16 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the cases settled before this lawsuit -- the malicious prosecution claim -- was filed. MR. LINK: They did in fact, Your Honor. MR. SCAROLA: Well, I stand corrected, then. But at any rate, we respectfully should get discovery that may be admissible with regard to the extent to which these claims were, quote, ginned up, unquote, as a consequence of anything that Mr. Edwards did. And what we have heard repeatedly is, we're talking about things Mr. Edwards did while he was at Rothstein, Rosenfeldt Adler. So settlement of claims before then as compared to settlement of claims after that, and settlement of claims following the disclosure of the alleged misconduct at RRA, would be at least discoverable with regard to whether these claims were somehow ginned up. THE COURT: We no longer need to use the term alleged in terms of the misconduct at RRA. Palm Beach Reporting Service, Inc. EFTA00800997 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: I was referring to -- THE COURT: There was misconduct at RRA. MR. SCAROLA: -- Mr. Edwards. THE COURT: Whether there was misconduct on behalf of Mr. Edwards, that is, in fact, still a matter of allegation. MR. SCAROLA: Yes, sir. And that's the only misconduct I was referring to. THE COURT: Absolutely. I agree with Mr. Scarola, not only as to his argument, but also as it relates to Mr. Epstein's state of mind, i.e., probable cause to bring this claim in the first place. It can be argued -- and I expect you to argue that -- that being Mr. Mr. Link and Ms. Rockenbach and his other counsel -- that he clearly had probable cause to bring these claims. On the other hand, an argument -- a piece of the argument that will be made on behalf of Mr. Epstein is that he was looking at this in a vengeful fashion, that he was looking at this as a way to get back at Palm Beach Reporting Service, Inc. EFTA00800998 18 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Edwards for not only his pecuniary lost, but some of the other things that we have discussed as it relates to motive, i.e., probable cause, i.e., malice. So that's the reason behind the Court's ruling that the global settlement amount may be potentially admissible or discoverable, in my view certainly. Because, again, the issue of relevancy is much of a broader discussion and much more of a broader view on the part of the appellate courts as it relates to admissibility. So for now, that's the ruling of the Court. MR. LINK: I understand that. We want to comply with the Court's order. Two things. One, you're asking us to provide a gross number of the total amount of settlements, correct? And we ask the Court that that number be subject to confidentiality. We are disclosing confidential settlement amounts -- THE COURT: That would be for, at this point, Counsel and his client's eyes only, and shall not be disclosed. Palm Beach Reporting Service, Inc. EFTA00800999 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: May we get a breakdown as to -- because of the argument that's been made and Your Honor's comments -- the number of cases settled prior to the filing of the malicious prosecution claim against Mr. Edwards, that total gross; then the number of cases settled while at -- while Mr. Edwards was at RRA, that gross; the number of the cases settled post RRA's implosion and that gross? THE COURT: Mr. Link or Ms. Rockenbach? MR. LINK: Judge, I think that -- as I said, I don't want to dispute the Court's ruling, but now breaking it down into segments has a whole different potential relevance. It's no longer discovery. We are looking at, then, finding individual folks who may have resolved their cases, where if we give you a gross number -- if I understand Mr. Scarola's argument -- it's the gross exposure that was hanging over Mr. Epstein's head that caused him to do this. THE COURT: That's precisely the word I was going to use, and that's the reason Palm Beach Reporting Service, Inc. EFTA00801000 20 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 behind the Court's ruling, is that the issue of exposure is one that, in my respectful view, would be the relevancy of potentially admitting that information. MR. SCAROLA: And knowledge of Mr. Epstein's exposure would clearly be based upon what he had to pay even before he filed the lawsuit. I had to pay X number of dollars and I'm really mad at Bradley Edwards now for the role he has played in causing me to expend that much money so far. I'm going to put a stop to this. I'm going to sue Edwards and scare off everybody else. THE COURT: Again, for discovery purposes only at this point, I'm going to require, then, simply a breakdown of what was paid prior to December 9th, 2009. Happy anniversary in two days: the gift that keeps on giving. MR. SCAROLA: Actually, apparently today is the anniversary day. Pearl Harbor. Sneak attack. MR. LINK: Justified filing. We can sit out here and hurdle things to the court reporter, Your Honor. Palm Beach Reporting Service, Inc. EFTA00801001 21 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: We have been speaking with smiles on our faces, knowing that despite the seriousness of everything that has gone on here, the attorneys and the Court, at least, can have moments of brevity that is not disrespectful to any of the litigants or any of those who may have been subject to the prior cases. I want to make clear that that is in fact the case in this brief moment. I think that I am at least reasonably convinced that any prior settlements that were made within a two-year period of December 7th, 2009 -- and then that would be broken down. And then anything paid after would be broken down. I think it's a relatively simple exercise that won't cause any type of overburden or onerous type of requirement on the part of Mr. Epstein and/or his prior counsel. MR. LINK: We understand the Court's ruling. Thank you, Judge. THE COURT: Thank you, again. And that's the reason behind the ruling that -- Palm Beach Reporting Service, Inc. EFTA00801002 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in fact, the nail was hit on the head by Mr. Link, is one of mindset of Mr. Epstein going to, again, what may be reasonably calculated to lead to the discovery of admissible evidence, and that is, relating to issues of probable cause and malice as it pertains to the potential total exposure, the best -- a consideration of best evidence, not so much under the rule -- What I'm saying is, a way to portray that mindset would be one of the exposure Mr. Epstein faced, not only at the time, but potentially in the future so-called proof of the pudding axiom that ultimately resulted in the amount of money that was paid. MR. LINK: Your Honor, should we prepare an order on that to include the attorneys'-eyes-only confidentiality ruling? MR. SCAROLA: Attorneys and client. THE COURT: Attorneys' and clients' eyes only, not to be disclosed in any fashion outside of this litigation. MR. LINK: Actually, Mr. Edwards is one of his own attorneys, isn't he? MR. SCAROLA: He is. Yes. Palm Beach Reporting Service, Inc. EFTA00801003 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Thank you. All right, let's get to, now, the Fifth Amendment issues, if we could please. I have gone through the materials. Thank you, particularly to Mr. Scarola and his office for culling these out and -- pursuant to the court order -- which I have never had a situation in the many years I have been doing this that Mr. Scarola -- for that matter, Ms. Rockenbach -- to a lesser degree, to the extent that Mr. Link has not appeared before me that often -- to ever knowingly transgress the Court's order. In any event, I commend them for doing what they have done to cull this out. So my thinking is -- I think I asked that both of you try to get together and see if there's any common ground here to avoid the Court's involvement. Have there been any agreements with respect to any of these questions and answers? MR. SCAROLA: We have been told every one is challenged, Your Honor. And if I might make a preliminary Palm Beach Reporting Service, Inc. EFTA00801004 24 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statement. THE COURT: Ms. Rockenbach you may as well. MR. SCAROLA: Your Honor, the defense has cited case law that an element of a civil claim may not be proved based solely upon the inference that arises from the assertion of the Fifth Amendment. We agree. That is not a point of contention. The defense has also asked for a jury instruction to be given at the time that the Fifth Amendment, I assume, is initially asserted in the jury's presence by Mr. Epstein -- in all likelihood through playing excerpts of his deposition -- his videotaped depositions -- and we have no objection to that. I think that both sides can get together and fashion an appropriate jury instruction that informs the jury that while in the context of a criminal case, an individual's assertion of a Fifth Amendment right may not be used against him. In the context of a civil case, an adverse inference may be drawn from the Palm Beach Reporting Service, Inc. EFTA00801005 25 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 assertion of the Fifth Amendment privilege. However, the jury may not base a finding upon that assertion alone. There must be some independent evidence to support the adverse inference that's drawn. That's -- obviously I'm paraphrasing. But I think that's where we are. I think we are in agreement with regard to those matters. Your Honor has also told us that we should focus our offer of evidence with regard to the assertion of the Fifth Amendment on issues directly related to the three plaintiffs who were represented by Bradley Edwards. And we have culled down the many assertions of Fifth Amendment and attempted to do just that. I'm, quite frankly, surprised in light of those ruling and the agreement that we have with regard to those basic principles that there's anything left to challenge, but apparently there's everything left to challenge. So if Your Honor has our notice of filing deposition transcript excerpts and Palm Beach Reporting Service, Inc. EFTA00801006 26 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discovery responses by Jeffrey Epstein implicating the Fifth Amendment, the best way to do this is to go through these one at a time, and we are prepared to do that. THE COURT: I understand. Ms. Rockenbach, your initial comments. MS. ROCKENBACH: Yes. Thank you, Your Honor. This is a very significant issue to the fairness of this trial. And just to be clear, there is no agreement that there should be a jury instruction. In fact, that is the very issue of whether this Court is going to rule that even an adverse inference is given or not. An adverse inference, based on the case law that we cited in our revised omnibus motion in limine is not automatic. This is a discretionary call by this Court. And in fact, Your Honor, there is no Florida reported case -- or else you would have been provided with it -- that says you automatically get a jury instruction on adverse inference. Rather, what this Court must do is Palm Beach Reporting Service, Inc. EFTA00801007 27 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 carefully balance the competing interest of the party asserting the privilege -- Mr. Epstein -- and the party whom against the privilege is asserted -- Mr. Edwards. You must carefully balance and prevent the detriment to the party asserting it. It should be no more than is necessary to prevent unfair and unnecessary prejudice the other side. So, Your Honor, the case law that we cited essentially says that there is a tension between the Fifth Amendment right and the right to a fair proceeding. That's the tension. And this is in the civil context, because we know from the US Supreme Court and Baxter, they indicated that, yes, you can have -- and can preserve your Fifth Amendment right in a civil context. But in the In Re: Carp decision that we cited, courts -- lower courts -- and I'm talking federal courts, because that's where this issue most typically arises they have consistently held that there's no requirement that this Court draw an adverse inference. So that's the threshold issue to Palm Beach Reporting Service, Inc. EFTA00801008 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the Court must decide. And how do you determine -- by what criteria do you measure whether you take these Fifth Amendment issues questions and answers and allow an adverse inference or not? I suggest to the Court the very first issue is what is relevant to this action. If Mr. Epstein was asked a question in the three-hour -- he was deposed twice -- in the first deposition he was deposed for approximately three hours -- answered abundant questions with regard to the information -- the facts and circumstances -- the information he reasonably relied upon to establish probable cause in instituting the original proceeding, he abundantly gave that information. He then gave it in two affidavits, which were filed with the Court. Had Mr. Epstein been asked the question, Did you review this November 9th newspaper article saying that Edwards had no -- it doesn't exist, but THE COURT: I don't want to get into the specifics right now. I was just giving Palm Beach Reporting Service, Inc. EFTA00801009 29 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you a global opportunity to talk about the law briefly. MS. ROCKENBACH: Thank you, Your Honor. The basic principle is that the questions and answers must have some probative value. And the case I'm citing relying on is out of the Fourth District Court of Appeal. I mentioned to Your Honor on November 29th, the Frazier decision, where the Fourth District Court of Appeal limited adverse inferences against parties to when they refuse to testify in response to probative evidence offered against them. So the question is, what is probative evidence in this case? And we submit to Your Honor -- I think Mr. Link will go through the questions showing how they are not probative of the issues relating to malicious prosecution and the probable cause element that is the threshold for Your Honor's decision. The other law that we would submit to the Court to guide Your Honor is that there has to be -- when there is an adverse Palm Beach Reporting Service, Inc. EFTA00801010 30 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inference, it can only be -- I emphasize and underline the word only -- straight from Baxter -- be drawn when independent evidence exists of the fact to which the party refuses to answer. So the silence must be countered by or -- having an existence, outside of the silence, independent evidence, and it must obviously be relevant. So the careful balancing that this Court must exercise, as you are guided by this case law, starts with, really, what is relevant, and what Fifth Amendment questions that were raised and asserted in the depositions or for discovery are relevant to the issues in this case. Thank you, Your Honor. THE COURT: Okay. Thanks a lot, Ms. Rockenbach. I appreciate that. All right. So this is essentially Mr. Scarola's, on behalf of Mr. Edwards proffer, so I'm going to give him the opportunity to proceed first. And I will give you my initial inclination first. If there's an agreement, fine, which I don't Palm Beach Reporting Service, Inc. EFTA00801011 31 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 expect there to necessarily be. MR. LINK: Your Honor, why would I be standing here? THE COURT: I am going to give you that first, and tell you what my initial inclination is as if we were sitting here and these questions were being asked at trial. It would be a whole lot shorter because all I would have to say is sustained or overruled, but I don't have that luxury right now. MR. LINK: You are struck with us right now. THE COURT: We will go through this. We will start at page eight, lines 11 through 19 -- this is the March 17, 2010 deposition of Jeffrey Epstein. Mr. Scarola, the first one -- the first two questions, my inclination is to permit those questions to be asked, finding, consistent with Frazier and its progeny, that such information will be able to be proffered or testified to outside of the mere invocation of the Fifth Amendment privilege by Mr. Epstein as to questions Palm Beach Reporting Service, Inc. EFTA00801012 32 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that read, quote, When and under what circumstances did you first meet the individual referenced by the initials L.M.? The next question being, quote, Do you know the individual named L.M. -- identified by the initials L.M.? End quote. So my inclination is to allow those questions to be asked, because L.M. is listed as a witness. And either she or someone who is able to testify concerning events associated with her will be available. MR. LINK: Yes. THE COURT: Mr. Link, your position. MR. LINK: Yes, Your Honor. It is not the question. THE COURT: And by the way -- so as to save us a brief amount of time, that same ruling would apply, at least until I hear your position. But my inclined position, if you will, will apply to the same or similar questions that were asked as it relates to E.W. and as results to Jane Doe that's at issue here. MR. LINK: I understand that, Judge. Palm Beach Reporting Service, Inc. EFTA00801013 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I want to be really clear about this. It's not the question in and of itself that I have a problem with. This is what bothers me. Simply showing the jury cumulative question after question after question where my client asserts Fifth Amendment is prejudicial. So in looking at the facts -- THE COURT: There's always going to be prejudice. And as many judges have stated to me when I was practicing law -- and I mentioned the anecdotal experience with Justus Reid where all he often had to say was prejudicial and it would be sustained after I had gotten done -- and we were co-counsel -- after I had gotten done with a manila folder filled with cases and giving an argument that I thought was a good one, and being overruled, all he would have to say was prejudicial and it would be sustained. That was the point I was trying to make the other day. So I don't mean to interrupt you, but you've mentioned that often. And Ms. Rockenbach has often also used the word prejudicial. We are not going to be able to Palm Beach Reporting Service, Inc. EFTA00801014 34 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rewrite history in this case. MR. LINK: I understand that. I do. THE COURT: And that's a major undertaking that you and Ms. Rockenbach took on when you decided to get involved in this process very late in the game. I am not being critical of that. I'm not taking any position whatsoever. It's just, the reality is that this case comes froth with prejudicial issues. And there's going to be prejudice. There's no question about it. It's not who ran a red light and whether someone has a whiplash injury as a result of that running of the red light. This is a case that is froth with sexual issues, sexual issues involving minors, as alleged, and for which, at least one of the guilty pleas was for the procurement of a minor for prostitution. As much as I want to and intend to sanitize the case to the extent that there's a level playing field from the inception, and because of your and Ms. Rockenbach's maturity in the manner in which you've written your response papers and some motion Palm Beach Reporting Service, Inc. EFTA00801015 35 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 papers as well, is the very realization that there is no getting away from many of these things that are, in fact, going to be potentially prejudicial to Mr. Epstein when it comes to the sheer information based upon the nature of these cases. It's just no getting away from it. And you realize that by virtue of the papers that you signed. So I wanted to stop you there and explain that to you. What has to be demonstrated to the Court, however, that when using the term prejudicial, it has to come, in most situations, for the 403 analysis, to where any probative value is materially outweighed by the prejudice. Simply saying something is prejudicial, as has been somewhat of the course thus far, is not enough to persuade the Court. It has to be to the extent that I have explained under 402 -- better explained by Professor Ehrhardt in his treatise. So against that backdrop, tell me what you want to say. MR. LINK: And I appreciate that. And the prejudice that I want to describe is Palm Beach Reporting Service, Inc. EFTA00801016 36 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different. I want to address one of the things the Court said. Your Honor, we understand -- I have said it probably at every hearing so far -- you can't sanitize this case completely. It cannot be done. In fact, frankly, we have to embrace on our side of the table some of the issues that you just described. They are part of this case. We have to embrace them. We have to deal with them. We know that. So we are not asking you to eliminate all sex and all reference to minors and things of that nature. We are not asking the Court to do that. This is special. When you make a Fifth Amendment determination and do balancing, what I meant by prejudicial is this. The first one is a great example. It is not going to be a disputed fact at trial. We, in fact, would stipulate that Mr. Epstein knew L.M. So if we are willing to stipulate that -- they are also going to call L.M. Is there a less prejudicial, less Fifth Palm Beach Reporting Service, Inc. EFTA00801017 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amendment way of getting that information to the jury? There are certainly questions in here that I'm going say to you we might challenge. But this first one, for example, what is the benefit to the jury to simply hear the answer of the Fifth Amendment when we will stipulate to the fact? That's what you want the jury to understand. Did he know L.M. He knew L.M. So how does it help the jury? How does it help this Court in maintaining the level playing ground to have that question and answer read to the jury? And it is not the question -- THE COURT: This time I am not going to answer. This time I let Mr. Scarola talk about that overarching issue. MR. SCAROLA: Thank you. Your Honor, a primary focus of the probable cause contention that is now being made is that Jeffrey Epstein had reason to conclude that Bradley Edwards was a knowing participant in the Ponzi scheme because of the way in which he was conducting discovery while at RRA and what he was seeking to Palm Beach Reporting Service, Inc. EFTA00801018 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discover while at RRA. Had Jeffrey Epstein offered the stipulation that has just been offered for the very first time in this courtroom, that, yes, I knew L.M; yes, I met L.M. at this particular time; yes, she was a guest in my home frequently; she was there 156 times had that -- MR. LINK: That was none of those questions that we are talking about. THE COURT: Let him. Mr. Scarola, finish. MR. SCAROLA: Had those acknowledgments been made by Jeffrey Epstein, then perhaps some of the discovery that was being conducted by Bradley Edwards would have been unnecessary. But in fact, Jeffrey Epstein stonewalled all of the discovery in the civil cases. He refused to acknowledge even that he had ever met L.M. He refused to acknowledge, having stated in the presence of Bradley Edwards and the court reporter, "I like L.M. I liked her back then." He was asserting the Fifth Amendment Palm Beach Reporting Service, Inc. EFTA00801019 39 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with regard to all of those matters. And the reasonableness of what Brad Edwards was doing must be judged in that context. And the fact that a stipulation is being offered right now, thank you but no thank you. It's far too late. I don't want the stipulation. I want the jury to know what Jeffrey Epstein was doing at the time. And they are entitled to know what Jeffrey Epstein was doing at the time, and continued to do even after he filed the lawsuit alleging that Brad Edwards fabricated these claims. He wouldn't even acknowledge that he knew L.M. So for those reasons, it's relevant, it's material. Its probative value is not outweighed by any prejudice. And Your Honor's ruling as you were inclined -- as you announced the inclination to rule is absolutely correct. Thank you, sir. THE COURT: All right. MR. LINK: May I respond? THE COURT: Yes. MR. LINK: Your Honor, that's exactly Palm Beach Reporting Service, Inc. EFTA00801020 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the point, which is this. I thought the whole idea of this trial was to put the facts before the jury and let them decide. Simply asking the question and we withdraw the stipulation -- but we are not going to object -- if L.M. gets on the stand and says that she knew Mr. Epstein, I am not going to cross-examine her on that and say you really didn't. How does this question and simply letting Counsel read Fifth Amendment assertions help the jury? I understand he wants to inflame them, but how does it help them? THE COURT: It gets me back to what I have indicated to you as sort of a theme for my rulings from the inception of our session back on November 29th, and even guided the Court through prior rulings as well, and that is, the context of this is not just a trial about Mr. Epstein's motivation, conduct, et cetera. It has everything to do with Mr. Edwards' defense of the malicious prosecution as well. A context is very important from the Palm Beach Reporting Service, Inc. EFTA00801021 41 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court's perspective of trying to divine a fair result as to all of these issues that have been confronted. And that is, not only taking into account those issues that have been raised by Mr. Epstein, but also those issues that are relative to the defense of the malicious prosecution -- strike that -- the presentation of the malicious prosecution claim from Mr. Edwards' standpoint. And context is really important, as I may have earlier indicated. This deposition was taken on March 17, 2010 -- which is a good idea, as far as I'm concerned, whenever any type of litigation is being taken -- being dealt -- especially a case like this where malicious prosecution is involved and motive, i.e., probable cause and malice are all at issue -- you are getting that person fresh, you are getting that person within months of the filing of the lawsuit. As an aside, it drives me crazy when I see for the first time someone coming up to me -- for example, in a medical malpractice case -- and there's a motion to continue a Palm Beach Reporting Service, Inc. EFTA00801022 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 trial set in January. The motion is brought at the end of November in a case where the alleged malpractice occurs in 2015. After all of the pre-suit issues were taken care of, they filed in 2016, and a principle ground for the motion to continue is what? We haven't taken the deposition of the treating doctor, the defendant doctor, yet. MS. ROCKENBACH: I saw that hearing. THE COURT: I don't want to suggest anything specific, but it happens with relative frequency, not only in the medical malpractice arena, but cases such as this as well. So, I don't want to get off on an unnecessary tangent, but it's just an illustration of taking these things in context. Knowing what we did, we take snapshots. 12/9 is a really important snapshot -- or 12/7. MR. LINK: 12/7. THE COURT: I thought today was the anniversary of the filing. MR. SCAROLA: December 7th, yeah. THE COURT: December 7th, snapshot. Palm Beach Reporting Service, Inc. EFTA00801023 43 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: By the way, I said that to my co-counsel she said, No, it was the 9th. THE COURT: That's okay. December 7th, '09. And then the snapshot of the arrest of Rothstein, the snapshot of when these agents went in and did what they did, all really important stuff, as is everything that transpired in Mr. Epstein's life during that same period of time. But the beauty of being in this position -- one of the few is that it affords me, hopefully, the ability to from a mature, experienced standpoint looking at it from both sides -- and trying again to divine what is the appropriate legal proposition in terms of the decision that the Court is making, but also very much taking into account both sides' positions and the overarching fundamental fairness -- fair trial, everything that, hopefully, we are all committed to when it comes to these types of situations. So I don't know if you want to add anything as to these questions that would Palm Beach Reporting Service, Inc. EFTA00801024 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 carry the same decision as to C.W. and Jane Doe. But the order of the Court on those questions and those that relate to those other two young women, the objection is what is proffered is permitted. The objections are overruled. I am going to allow those questions to be asked. And based upon the case law that I have earlier indicated that I reviewed, I find that the information can be provided independent of simply the invocation of Mr. Epstein's Fifth Amendment right. So the adverse inference aspect will also be granted. MR. LINK: Your Honor, how about just for the record I do adopt my arguments for the other -- THE COURT: Understood. I would be shocked and saddened if that went on review and Mr. Scarola, or anyone representing Mr. Edwards on the appeal, would suggest that there was any waiver. I wouldn't think that to be the case. But thanks for that. Next is number 12. "Have you ever Palm Beach Reporting Service, Inc. EFTA00801025 45 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 acknowledged in Bradley Edwards' presence that you liked L.M.?" That is subject to debate. Mr. Scarola, your position. MR. SCAROLA: The testimony will be that at a deposition, Jeffrey Epstein volunteered to Bradley Edwards -- in the presence of both the court reporter and in the presence of co-counsel, Steve Jaffe -- that he liked L.M. And that has obvious relevance in materiality in the context of his having sued L.M. for allegedly being a knowing participant in the fabrication of the claims that he brought against L.M. And obviously these -- this deposition is taking place after he already knows about L.M.'s claims against him. So that acknowledgment is strong support for the fact that he has made the decision that he is going to maliciously sue L.M. and Bradley Edwards for the purpose of attempting to defer -- excuse me -- deter each of them as part of his extortion plot. THE COURT: Mr. Link. MR. LINK: Yes, Honor. So the record's Palm Beach Reporting Service, Inc. EFTA00801026 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 clear, I'm not going to reargue all the things that I argued to the Court globally. I will just adopt those for every one of the questions here and just talk about the specific question, if that's okay, Your Honor. MR. SCAROLA: I have no objection to that procedure. THE COURT: You don't? MR. SCAROLA: No. THE COURT: Well, I want to make sure, though, that I am informed as to the nature of the objections as it relates to each of these questions, which is important. MR. LINK: I will give you my specifics. I just didn't want to go through the whole litany that I gave you earlier. I'm delighted to do it, but the Court might throw me out of the courtroom. THE COURT: No, I wouldn't do that. Hopefully, that wouldn't be the case. I don't throw things and nor will I throw anyone out of the courtroom. I don't think that has happened before, at least from the lawyers' standpoint. There may have been Palm Beach Reporting Service, Inc. EFTA00801027 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 individuals who may have disrupted the proceedings and I have asked for assistance in that regard. But anyway, getting back to what we're dealing with here. What I would like you to do is simply, if you would, tick off what those objections would be. You don't have to go into detail, based on Mr. Scarola's acceptance of your suggestion, but I would like to have the record reflect just what the objections would be in terms of a brief synopsis. MR. LINK: Yes, Honor. Two for this one. Relevance to this proceeding, and more importantly, it's vague. At what point in time? When? What does the word "like" mean? Those are all things I can't answer based on this question. THE COURT: The objection is sustained. Page 12. The inclination that's Ms. Becker -- and it would really be the same type of information. The objection is sustained. And that's page 12, lines 2 through 13. Page 12, lines 15 through 20, same Palm Beach Reporting Service, Inc. EFTA00801028 48 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question as it related to co-counsel Jaffe. The objection is sustained. Let's move now to page 15, lines 15 through 19. The question begins, quote, Is it your contention that L.M.'s statement to the FBI was true? End quote. Mr. Scarola, your position, please. MR. SCAROLA: There are specific references in the Complaint to allege consistencies between what L.M. told the FBI and the allegations included within the civil complaint filed by Bradley Edwards on L.M.'s behalf. What Bradley -- excuse me -- what Jeffrey Epstein knew at the time that he filed the Complaint against Bradley Edwards is clearly relevant and material, because one is presumed to have intended to do that which one does. If he knew his charges were false, he is presumed to have intended to file false charges. So contending that the charges were fabricated when he knew what L.M. told both the FBI and Bradley Edwards was entirely true, is clearly an issue of substantial Palm Beach Reporting Service, Inc. EFTA00801029 49 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 significance of these proceedings. THE COURT: Thank you. Mr. Link. MR. LINK: Yes, sir. It's overly broad, vague. And relevance. And here is why. And Mr. Scarola asked the question, Is it your contention that the statement generally is true? The statement is lengthy, there are multi-parts to it. He didn't say this sentence or this sentence. So if you ask that question about a lengthy statement, how is the jury going to know what we're talking about? If we were in a courtroom and he said a specific statement, that would be different. But to say generically -- that's like asking the question: Is every allegation true in the Complaint? I don't think that question would be admissible to the jury, Your Honor. MR. SCAROLA: I'm sorry. Does Your Honor want more argument? THE COURT: No. I don't need more argument. I thank you both. The question on page 15, I presume, it's line 15 through 19 -- because there's Palm Beach Reporting Service, Inc. EFTA00801030 50 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some preface to the question -- I didn't read into the record, because it's unnecessary -- that question -- the objection is sustained. However, the following question, page 15, lines 20 through 24, which relays, quote -- Question: Was L.M.'s statement to the FBI false in any respect? is overruled. MR. LINK: And I don't have a specific objection, other than my general objection to that question, Your Honor. THE COURT: Very well. Thank you. Again, with all of the trappings that I have indicated earlier, that there would be an adverse inference that can be argued to the jury as it relates to these questions that I am overruling objections to -- I apologize for the grammar. Next is page 17, lines 11 through 16 which begins, Question: Did you engage ever engaged in any sexual conduct with L.M.? End quote. Mr. Scarola. MR. SCAROLA: Does Your Honor want to follow the procedure of telling us what Palm Beach Reporting Service, Inc. EFTA00801031 51 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you're inclined to do before I decide whether I need to argue? THE COURT: No. If I did, I would tell you. So anything that I don't provide you with my inclination is subject to debate. MR. SCAROLA: Your Honor, clearly the allegations included within the claim filed by Bradley Edwards against Jeffrey Epstein on behalf of L.M. alleged that Jeffrey Epstein was regularly engaging in sexual conduct with L.M. and paying her for that sexual conduct during a period of time when she was a minor. So it is unquestionably relevant as to whether Jeffrey Epstein acknowledges having engaged in sexual conduct with L.M. Indeed, the allegations in his Complaint against Bradley Edwards are that L.M. was a prostitute and that she was voluntarily engaging in sexual conduct with a Palm Beach billionaire -- referring to himself. So this question goes directly to the allegations that he has made in the Complaint and inquires as to what he is and Palm Beach Reporting Service, Inc. EFTA00801032 52 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is not acknowledging with regard to those allegations in the Complaint. THE COURT: Thank you. Mr. Link, also of import to the Court, in addition to Mr. Scarola's statements is the language contained in Mr. Epstein's Complaint against Mr. Edwards and others that the cases were, in fact, weak and hence -- and his noting of those cases, including L.M., C.W. (sic) and Jane Doe, and having to, again, from Edwards' standpoint, acknowledge, defend, and otherwise deal with the strength or weaknesses of those particular three cases by virtue of Mr. Epstein's allegations that he brought so as to, again, show probable cause in particular. Your position, please. MR. LINK: Yes, Your Honor. Listen, we operate in a precise craft. If you look at this question, Your Honor, it's vague and it's overbroad. He doesn't give us a time frame. He doesn't ask when she was a minor, was she over 18. It could have been yesterday. Palm Beach Reporting Service, Inc. EFTA00801033 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This deposition is from 2010. There are simply no boundaries to the question. And if you're asking the question to fit within the malicious prosecution, then it should go to something that's relevant there. But to simply ask, Have you ever had sexual activity with a person, that's the most generic, vague statement I have ever heard. THE COURT: As the neutral arbitrator, again, I bring you back to the neutral arbiter. I bring you back to -- this deposition was taken March 10, 2010 March 17th, 2010. Forgive me. If it can be shown between now and when this question -- if it's intended to be published -- is published that L.M. was not a minor prior to March 17, 2010, then I will revisit the issue. However, for all the reasons that were expressed by Edwards' counsel's argument and the additional reason that the Court expressed in terms of supporting it -- it meaning the Court's decision -- the objection is overruled. Palm Beach Reporting Service, Inc. EFTA00801034 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It does have a time frame. It says ever. Meaning at any time prior to March 17th, 2010. If it can be established to my satisfaction -- bring in her birth certificate -- that she was not a minor at any time prior to March 17, 2010, I will be willing to revisit. MR. LINK: She was, Your Honor. She was. THE COURT: That's fine. MR. LINK: But she wasn't in that entire time frame. THE COURT: Well, be rest assured that I will always -- no matter the most innocuous representation of impeachment, if you will, in terms of the deposition, for example -- when a deposition is used in the courtroom that I am presiding in, I am -- I won't say always, because there may be exceptions -- but clearly in this case, I will always be vigilant in terms of letting the jury know when the deposition took place; when the statements were made; when the interrogatories were executed; when the Palm Beach Reporting Service, Inc. EFTA00801035 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 response for production was made and answered. Those dates are critical in my respectful view anytime the jury is analyzing any case. So what I meant by potentially the most innocuous attempt to impeach, they will get the date of the deposition, typically without fail. MR. LINK: And I appreciate that. My objection, simply, if he asked a better question -- if I think it was tied to a specific time frame, I wouldn't have an objection to it. That was all. THE COURT: Ever engaged in sexual conduct with a minor is? as far as I'm concern, as narrow as you need to get. MR. LINK: I don't mean to keep arguing. It doesn't say when she was a minor. But I accept the Court's ruling. I don't want to keep arguing. THE COURT: All right. I think my position is clear on the record. I'm not going to revisit it. The next question, quote, Have you ever Palm Beach Reporting Service, Inc. EFTA00801036 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exchanged anything of value with L.M.? For the same reasons indicated, the objection is overruled. MR. LINK: Thank you. THE COURT: Again, all of the objections are adopted. Page 17 through 18, lines 24 through 4 -- that is 24, 17 to 4, 18. Question, quote, did you ever direct anyone to deliver anything of value to L.M.? End quote. I have seen documentation in that respect, meaning, even though I have sustained objections to the global documents with the caveat that individual documents may be able to be admitted, I have seen documents -- for example, in one of the compilations that we dealt with on Tuesday -- it had, Please make sure this is delivered to one of these three young ladies -- and I can't remember which one after her performance or when she gets off stage. I don't know whether that was on a stage at one of the gentlemen's clubs or at Palm Beach Reporting Service, Inc. EFTA00801037 57 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the stage of a high school production, but that's what it says. So there is independent evidence that I have probably seen myself that would support Frazier and its progeny's analysis as it relates to not allowing simply the invocation of the Fifth Amendment to carry the day from an evidentiary standpoint. So that is -- the objection is overruled, the proffer is permitted with the inferences that we have discussed earlier. I don't know -- strike that. Let me get back to the question before I indicate what my issues are with it. Page 18, lines 6 through 10. Question Do you know [REDACTED]? End quote. Who is [REDACTED]? MR. SCAROLA: As Your Honor will see from the next question, [REDACTED] was the minor who brought L.M. to Jeffrey Epstein and was paid a bounty for her delivery of another child to him. That's what the independent evidence will be with regard to the role that [REDACTED] plays with respect to the L.M. case. Palm Beach Reporting Service, Inc. EFTA00801038 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: And it's relevancy to what we are doing here? MR. SCAROLA: It proves the strength of these claims, that they were not ginned up, that there was independent third-party testimony from multiple witnesses, one of whom was [REDACTED] to support the claims of L.M. And that additional testimony was obviously known to Jeffrey Epstein when he is evaluating whether these were fabricated cases or whether they were real claims supportable by real evidence. So this goes to the strength of the cases being prosecuted by Bradley Edwards, and to Jeffrey Epstein's motive to avoid ever having to defend these cases on their merits by doing what he could to extort Bradley Edwards to abandon the legitimate interest of his clients. THE COURT: Thank you. Mr. Link. MR. LINK: Yes, sir. Relevance. This is a person that I haven't -- is not one of the three folks that we have been talking about. Palm Beach Reporting Service, Inc. EFTA00801039 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So if we are letting in information about a person who is not one of the three, then we are going to be back to my having to call them on the stand, or Mr. Scarola, to do the link that he just described, which is going to be a 403 prejudicial analysis this Court has to engage in, because what he just said isn't part of this deposition that we have seen. So we are now getting into introducing another alleged victim, and the cross-examine of somebody other than the three. THE COURT: Well, I don't know if Ms. Andriano would be construed as a victim, unless she herself was engaging in sexual conduct with an adult -- simply being friends with an adult doesn't constitute her being a victim. She may face some type of potential criminal charges, if she's procuring another for sexual activity -- MR. LINK: Maybe Mr. Scarola can stipulate she was not one of alleged victims. Palm Beach Reporting Service, Inc. EFTA00801040 60 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: No, I cannot stipulate to that. That is contrary to the facts. [REDACTED] -- so that Your Honor is aware of what the evidence will show [REDACTED] was a minor. She was recruited for performing sexual acts in exchange for money for Jeffrey Epstein. Jeffrey Epstein's modus operandi was to pay a bounty to those who were already performing sexual acts for him for anybody else that they could bring to him who he found acceptable for engaging in similar conduct. So [REDACTED] was paid to engage in sex with Jeffrey Epstein and recruited L.M. to engage in sex with Jeffrey Epstein. That's what the evidence will be. That's how L.M. came to be in contact with Jeffrey Epstein. [REDACTED] would be a witness to the fact that L.M. was a child victim of Jeffrey Epstein. THE COURT: Do you intend to bring her in to testify? MR. SCAROLA: I don't know that I am Palm Beach Reporting Service, Inc. EFTA00801041 61 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to need to bring her in to testify. She's available. She's on our witness list. But, clearly, L.M. herself will be able to testify, I was recruited by Carolyn Andriano to go to Jeffrey Epstein's house. She brought me there. She witnessed my being there. And it was as a consequence of her introduction that I became engaged in the victimization that is subject of the civil complaint filed by Bradley Edwards against Jeffrey Epstein. Now, if that were found by the Court for some reason not to be an adequate predicate for the introduction of this testimony, then [REDACTED] would be available to testify. But I don't think that that would be necessary and I wouldn't intend to bring her, unless the Court found it was necessary. It's especially not necessary because the testimony of L.M. alone is sufficient to lay a predicate for the introduction of these two questions and the adverse inferences that can be drawn from those two questions. Palm Beach Reporting Service, Inc. EFTA00801042 62 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, too, Your Honor, want to keep this case focused, to the extent we can, on the issues directly involved in this lawsuit. But these are issues directly involved in this lawsuit. I don't need to get into how many times [REDACTED] was victimized by Jeffrey Epstein, all of the proof that supports the quality of her claims. That, I agree, is not what this lawsuit is about. But it is about L.M. and the quality and strength of her claim as known by Jeffrey Epstein at the time he alleged that these were fabricated charges. MR. LINK: Your Honor, I believe Mr. Scarola made my argument for me. This is a minor, and consistent with the Court's ruling the day before yesterday, we have been using Carolyn's name -- if you want to sanitize the record and go back to her initials -- because she was a minor at the time. I just remind the Court -- THE COURT: I know. That's something that's of concern to me, too. I want to make sure, though, that we do that. Again, Palm Beach Reporting Service, Inc. EFTA00801043 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 if any of these young women continue to want to have their pseudonyms, their initials, Jane Doe -- if I'm using the right word -- used, I am going to continue to respect that and do the same with Ms. Andriano. If any of these females were minors at the time, then they would have that -- what I would perceive to be a right if not a legal right, certainly a right would be an appropriate right from a value type of consideration when it comes to their initials. But what I'm dealing with here is trying to divine the difference between the relevancy for the malicious prosecution claim and the indirect information, so to speak, because [REDACTED] was not one of the three individuals represented by Mr. Edwards, number one. Number two, because the adverse inference issue is something that is significant, and the balancing test that's used by the court always has to respect the constitutional right to invoke the Fifth Amendment, again, weighed against relevant Palm Beach Reporting Service, Inc. EFTA00801044 64 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information necessary for the -- in this case, Edwards to prove his malicious prosecution case -- and at the same time show what was a lack of probable cause on the part of Mr. Epstein and defending against -- strike that -- in showing that he lacked probable cause and also showing malice. That's my concern. Is it collateral? MR. SCAROLA: Because your Honor is pausing and seems to be weighing that issue, let me simply point out that there's nothing about either of these questions that identifies [REDACTED] as a victim of Jeffrey Epstein. If that's a concern that the Court has, and it were to tip the scales in the direction at which I suggest they clearly need to go anyway, these questions don't implicate [REDACTED] as a minor victim of Jeffrey Epstein. They do clearly establish that she is a witness who would corroborate the strength of L.M.'s claim. Whether we ever get into talking about whether [REDACTED] was a victim of Palm Beach Reporting Service, Inc. EFTA00801045 65 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Jeffrey Epstein, that's a separate issue, and can be dealt with and should be dealt with separately, not in the context of those questions. THE COURT: Mr. Link, anything further? MR. LINK: Two last points. I don't know how -- who the person is that introduced you has anything strength or weakness of the it helps the Court, because to do with the claims. of the But if balancing -- we really appreciate the Court taking the time to consider the balancing -- if L.M. gets on the stand and is asked the question, Who introduced you to Mr. Epstein? we're not going to object to her answering that or challenge it. And so that allows the information that Mr. Scarola says he needs in a way that balances the Fifth Amendment right, and hopefully keeps one other formerly known person out of this proceeding, Your Honor. THE COURT: Well, while I do have obviously an abiding concern with, not only the efficiency of trying the case, but also to not have to expose anyone still Palm Beach Reporting Service, Inc. EFTA00801046 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relatively young to being a focus of this, in balancing the Fifth Amendment invocation with the factors that we discussed in Frazier and its progeny, I am going to find that these questions would be permissible to be asked. I believe that they do formulate a nexus between Mr. -- allegedly between Mr. Epstein, Ms. Andriano and L.M. so as to directly and not collaterally impact the strength of Mr. Epstein's claims versus Mr. Edwards' claims that these contentions made against him in the lawsuit filed against him by Epstein lacked probable cause and were in fact maliciously brought, i.e., did Mr. Epstein knew of this arrangement, allegedly -- knew of the alleged arrangement, and that, as such, it was a factor, potentially, in him bringing this claim against Mr. Edwards for the reasons enunciated by Mr. Scarola. MR. LINK: Thank you, Judge. THE COURT: The next issue is page 18, line 23, which states, quote, Question: Did L.M. suffer any damages as a consequence of Palm Beach Reporting Service, Inc. EFTA00801047 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any interaction between you and L.M.? End quote. Again, for the reasons outlined earlier, my inclination is to go ahead and allow it. Mr. Link. MR. LINK: Yes, Your Honor. I believe that it is speculative. I don't know how Mr. Epstein would be qualified to testify about any damages suffered by L.M. The damages alleged are psychological damages, not physical damages. It seems to me if you ask that question, it's being asked to the wrong person. THE COURT: I don't think there would have been any Fifth Amendment issues, that I'm aware of, in going through this law pretty carefully and went back to this question to see if there would be any Fifth Amendment dangers here meaning, would there have been any harm to Mr. Epstein by simply saying, I don't know? To my satisfaction in reviewing the cases, it seems to be that an answer, I don't know, would not cause him any concerns Palm Beach Reporting Service, Inc. EFTA00801048 68 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as it relates to the Fifth Amendment, as it relates to this type of question. There are questions, however, where it is later proven, that is, a significant fact at issue, if it is later proven to be true, meaning that the witness did have knowledge of a given event but said that he or she didn't, then that could used against that individual. But here, I don't see it as being a matter that he had to concern himself with Fifth Amendment implications. MR. LINK: Your Honor, if I could just point out the words, "consequence of any intersection." I want to make sure that we have the Court's ruling that you are overruling the Fifth Amendment assertion here and saying that it was not an appropriate assertion to the question; is that correct? THE COURT: No, I'm not saying it's not appropriate. He can invoke his Fifth Amendment right. I'm saying in my review of the law, it did not appear that by answering that question there was any exposure to be faced as a result of answering, I don't Palm Beach Reporting Service, Inc. EFTA00801049 69 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know, to that particular question. MR. LINK: I suggest the words, "consequence of any interaction" is absolutely the type of linkage that makes it a meaningful Fifth Amendment assertion. Obviously it makes a difference to us in how we go forward. If the Court is saying, I am ruling because I don't think the Fifth Amendment is applicable, that's one ruling. If you're saying it's applicable, but I find that it is relevant, not speculative, different ruling. THE COURT: The second one. MR. LINK: Thank you, Your Honor. THE COURT: Even though, as I said before, as a matter of my own research, it appears that if he said, I don't know, it would not have any critical implications in terms of any type of self-incrimination, unless he did know at the time, and Mr. Edwards, in his representation of L.M., was able to prove that. But I don't want to get there. I don't need to jump off that cliff. I can repose my confidence in the Palm Beach Reporting Service, Inc. EFTA00801050 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 law of Frazier and its progeny to find it would be relevant. MR. LINK: So we're going to stay on the cliff? THE COURT: Correct. MR. LINK: Thank you, Judge. THE COURT: Page 34, line 23 through 35, line 17. Question: "Specifically, what are the allegations against you which you contend Mr. Edwards ginned up? End quote. The objection is overruled. Same with 36, line 29, which is a similar question asked. MR. LINK: Your Honor, if I could just be heard on this for one moment. THE COURT: Sure. MR. LINK: I believe if you look at pages 33 and 34 from the March 17th, 2010 transcript, you will see that these questions were actually answered. THE COURT: I recall. MR. LINK: And I think the questions have been answered. The fact he changed the wording a little bit shouldn't give the right to the adverse inference, because the Palm Beach Reporting Service, Inc. EFTA00801051 71 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information has been provided. So I think essentially these are duplicative questions and they were answered. So allowing the cumulative effect of continuing to read Fifth Amendment assertions to the jury is inappropriate in this case, Your Honor. THE COURT: Well, I'm not sure in what context these questions were asked. And that's my own error. I just didn't have the time to go back and match up depositions at this particular moment getting prepared for this as I did when I read the deposition testimony on many occasions in the past. MR. LINK: May I suggest we defer, then, on these two and bring them back before you? THE COURT: Just have somebody look at that and see whether it was asked and whether there's context -- MS. ROCKENBACH: May I approach, Your Honor? It is page 33, line 14, and as well, page 34, line 7. MR. SCAROLA: Page 33, 14? MS. ROCKENBACH: And page 34, line 7. Palm Beach Reporting Service, Inc. EFTA00801052 72 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It starts with the answers from Mr. Epstein. THE COURT: Let me take a look at that. Thank you. MR. SCAROLA: I'm sorry, 34, line 7? MS. ROCKENBACH: Yes. THE COURT: I see where they are answered, but then the question is asked after Mr. Epstein gives an answer to the broader question, what does ginned up these allegations mean? That came from him. Later, the question at issue here is, "Specifically, what are the allegations against you which you contend Mr. Edwards ginned up?" He answers, quote, I would like to answer that question. A, many of the files and documents that we've requested from Mr. Edwards and the Rothstein firm are still unavailable. "With respect to anything I can point to today, I'm, unfortunately, going to have to take the Fifth Amendment on that, Sixth and Fourteenth. End quote. He goes on to say in response to the following question on this same page, Palm Beach Reporting Service, Inc. EFTA00801053 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 immediately thereafter, quote, Question: You seemed to be defining ginned up as crafted; is that correct? "Answer: That's correct. "Question: Does ginned up or crafted mean fabricated?" He then, again, states -- that, being Mr. Epstein -- in response to that question -- page 35, line 12, the witness states, quote, I'm sorry, Mr. Scarola, I understand that you are trying to backdoor your way into a waiver of my Fifth Amendment, but respect (sic) to that question, I'm going to have assert (sic) my Fifth Amendment, Sixth Amendment and Fourteenth Amendment rights. End quote. I'm reading directly from the transcript with the grammatical errors and/or typographical errors that may have been involved. So the objection to overruled. The same with page 36, lines 1 through 9 for the same reasons I mentioned earlier, consistent with the ruling I made earlier. The next is pages 36 through 37, lines Palm Beach Reporting Service, Inc. EFTA00801054 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 through 7 -- line 10 on 36 to line 7 on page 37. And the question that is at issue is -- near the bottom of the page -- the proffer, quote, Who else besides Bill Clinton is included in your reference to various people?" The answer was, quote, There are people in California. There are people in New York. End quote. Then question, quote, Would you name them for us, please?" And Mr. Epstein takes the Fifth and Sixth and Fourteenth Amendment privileges. Mr. Scarola? MR. SCAROLA: The Complaint itself alleges that the testimony process of ginning up these claims included involving specific individuals as to whom there was no basis to take discovery, and that the only reason why those individuals were included was to knowingly support the Ponzi scheme being perpetrated in conspiracy with Mr. Rothstein. So this goes directly to the allegations that are included within the Palm Beach Reporting Service, Inc. EFTA00801055 75 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Complaint. And if he's telling us that there's improper discovery that is alleged to have been taken, we are entitled to know who those people are that he claims had nothing at all to do with this and that there was no reasonable basis to implicate in any way, that is, by even taking their depositions. So it seems to me that this is very clearly, very directly relevant and material in light of the allegations that are included within the Complaint. THE COURT: To put this in some brief context, the first question in this line of questioning dealt with what specific discovery proceedings did Edwards engaged in that you contend form the basis for your lawsuit, i.e., the lawsuit that was brought on or about December 7th, 2009. The answer was, quote, The discovery proceedings of bringing my attorneys to (sic) various people that had nothing to do with any of his clients or these lawsuits." "Question: Which various people? Who? "Answer: For example, he tried to Palm Beach Reporting Service, Inc. EFTA00801056 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 depose Bill Clinton strictly as a means of getting publicity so that he and his firm could fraudulently steal -- craft money from unsuspecting investors in South Florida out of millions of dollars." Then it gets to the question about Clinton, which I have already indicated the question and answer. And then he says, "There are people in California. There are people in New York," as I have indicated earlier in my recitation of the answer. Then the next question by Mr. Scarola was quote, Would you name them for us, please? End quote. Mr. Link? MR. LINK: I have no specific objection, Your Honor. Just my general objections I made earlier. THE COURT: Because it directly goes to the issues contained in the malicious prosecution claim, as well as the testing of the allegations made by Mr. Epstein, I'm going to find it to be relevant. I'm going to find that a reasonable inference can Palm Beach Reporting Service, Inc. EFTA00801057 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- strike that -- that a reasonable inference can be drawn from the Fifth Amendment invocation, and it be an adverse inference as well. Next is 38, lines 23 through 25 through page 39, lines 1 through six. Question: "I had asked you earlier whether you ginned up and crafted meant fabricated and you asserted your Fifth Amendment privilege. Are you now telling us that there were claims against you that were fabricated by Mr. Edwards?" After asserting his Fifth, Sixth and Fourteenth Amendment rights -- again, this is according to Mr. Epstein -- I am taking any position whether any of those other rights apply. I am looking at this from a Fifth Amendment perspective. He then states, quote, I would respond that the newspapers are very clear that the cases were fabricated. End quote. My inclination would be to permit it, consistent with my other rulings regarding this area of ginned up or fabrication. Mr. Link? Palm Beach Reporting Service, Inc. EFTA00801058 78 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: I am going to ask Your Honor to take a look at the actual transcript to put it in context. I believe the question is more fully answered. THE COURT: Sure. MS. ROCKENBACH: I think it's page 38, line 14 through 22. Mr. Epstein provides a substantive answer with regard to multiple cases, fabrication and fleecing investors. I will also point out that it is, at this point, cumulative, because the Court has already allowed, repeatedly, Fifth Amendment adverse inferences. THE COURT: Well this is after a discussion -- actually, it's just before a discussion, which then gets into a question, "Which newspaper said which cases were fabricated?" Answer: "Bob Norman's blog said most of the cases were fabricated, to my best recollection. "The Scherer Complaint alleged many fabricated cases, sir." Then the question again states, quote, Well, which of Mr. Edwards' cases do you Palm Beach Reporting Service, Inc. EFTA00801059 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 contend were fabricated?" That's the next question that's at issue. The objections are overruled for the reasons I stated earlier. MR. LINK: Thank you. I should clarify. I was assuming that we, obviously, were going to designate parts of the deposition so that they will be played at the same time. THE COURT: That's fine. MR. LINK: Thank you, Judge. THE COURT: Get with Mr. Scarola and deal with that issue outside of my presence. MR. SCAROLA: We will certainly be playing all of that testimony on page 38 that's just been referenced to put the assertions in context -- THE COURT: Right. MR. SCAROLA: -- so the jury knows when we're talking about fabricated cases, Mr. Epstein is saying the cases that were involved with the 13 boxes that got delivered to Mr. Rothstein's office, those happen to be Bradley Edwards cases. So Palm Beach Reporting Service, Inc. EFTA00801060 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 those are the cases he's saying were fabricated. THE COURT: I understand. But again, put it in context -- for context reasons and, obviously, pursuant to the rule of completeness. I'm conscious of that as well. I can assure you that at least I will not knowingly allow anything to be put into evidence that's not in context or if it's incomplete. MR. LINK: Thank you, Judge. THE COURT: Next is page 39, lines 21 through 25 to page 40, line 1. That is the same ruling for the same reasons. Page 40, lines 2 through 12, same ruling for the same reasons. Page 40, lines 17 through 21 that is, again, going back to similar questions that were at the beginning of this analysis where now it gets to -- now it's being -- Jane Doe is being discussed. Question: "Did you ever have personal contact with the person referred to by the name Jane Doe in that lawsuit?" Palm Beach Reporting Service, Inc. EFTA00801061 81 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Again, for the same reasons I indicated earlier as to L.M., the same ruling, same objections are taken and asserted and they are overruled. Same with the next question, page 40, lines 22 through 25; on page 41, line 23; the same with 41, lines 4 through 9; same with 41, lines 10 through 19. The next issue is page 42, lines 3 through 13. Question: "You have alleged in your Complaint that there is a claim on behalf of Jane Doe versus Epstein pending in the Federal District Court of Southern District of Florida. I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that Complaint?" Same ruling, same reasons, same objections being overruled as related to the similar question as is pertained to Ms. L.M. Next is question, "Did you ever exchange any money or gifts with Jane Doe?" Same ruling. I'm allowing that, based upon the reasons I gave earlier. Next we get into E.W. Page 42. Palm Beach Reporting Service, Inc. EFTA00801062 82 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "Do you know who E.W. is?" Same ruling as related to L.M. and Jane Doe for the reasons that the Court expressed earlier. Same ruling as it relates to how long have you known E.W. As I related to L.M. and Jane Doe, those rulings remain the same. Question: How many times have you been in physical contact -- strike that. "How many times have you been in the physical presence of E.W.?" Same ruling, same objections as it related to E.W. -- strike that -- as it related to L.M. and Jane Doe. Next is, "How old is E.W.?" Answer: "I don't know." Question: "How old was she when you met her?" Fifth Amendment is then asserted. Again, because E.W. is a principal feature of the claim made by Mr. Epstein against Edwards, and it's one of the three cases involved and relative to the strength and weaknesses of that case, is one of those that is being asserted here as to the reason Palm Beach Reporting Service, Inc. EFTA00801063 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 why Mr. Epstein may have filed the lawsuit and the reason why Mr. Edwards filed the malicious prosecution claim, it's relevant. The Fifth Amendment invocation is respected. However, the inference may be drawn against Mr. Epstein in that question also. Same ruling with regard to the next question, page 44, lines 21 through 25 to page 45 line 1. Same ruling for the reasons expressed for L.M. and Jane Doe for E.W. On page 45, lines 2 through 7, same ruling as expressed for L.M. and Jane Doe for the ruling regarding E.W. pertaining to page 45, lines 8 through 16. Same ruling -- strike that. This is a different issue. And, actually, my inclination was not to allow this question to be asked. MR. SCAROLA: Which one are we at? THE COURT: Page 45, lines 17 through 24 of the proffer at the bottom of the page. Quote: What is the actual value that you contend the claim of E.W. against you has? End quote. MR. SCAROLA: Respectfully, Your Honor, Palm Beach Reporting Service, Inc. EFTA00801064 84 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you will recall that one of the central allegations of the Complaint is that these were basically worthless claims. They were being ginned up. Clearly it is a matter of relevance as to what Mr. Epstein's position was at the time that he made allegations against Bradley Edwards that these were ginned-up cases, what he thought the value really was. How much were they worth? And the answer could have been, They were worthless. I have no opinion. But when he says, I assert my right to remain silent, the reasonable implication to be drawn is that his truthful answer would have contradicted the allegations that he made in the Complaint against Bradley Edwards. THE COURT: Or it could constitute an adverse inference towards Mr. Epstein's position as it pertained to the relative weakness or strength of the cases from either side's perspective, as I pointed out earlier. MR. SCAROLA: I would also point out that we have included in the motion the line Palm Beach Reporting Service, Inc. EFTA00801065 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 where Mr. Pike says, "Form. Relevance," that would not be offered into evidence. THE COURT: I understand. Thanks. Mr. Link. MR. LINK: Only general objections, Your Honor. THE COURT: Okay. Then the objections are overruled. MR. LINK: I don't agree with Mr. Scarola's characterization that he used in the Complaint. I think the word we focused on you said was weak. It does say ginned up, fabricated. We have gone through that. But I don't want to go through the diatribe of it. THE COURT: In my recollection, which has been refreshed to some degree today, that was Mr. Epstein's characterization of the types of claims that were brought by those three individuals that we have repetitively identified. MR. LINK: He said they were weak. The fabrication related to what Rothstein was doing. THE COURT: Again, that can be Palm Beach Reporting Service, Inc. EFTA00801066 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 explained, that can be argued, that can be raised through other witnesses or Mr. Epstein himself. Again, I'm getting to the issue of Fifth Amendment invocation and its impact on the malicious prosecution claim. And that's the ruling of the Court. And the same ruling would go to L.M. and Jane Doe, the same adverse inference being allowed as related to those questions being page 46, lines 1 through 15. We move to page 71, lines 12 through 17. "Is there any pending claim against you which you contend is fabricated?" Let's go back and take the context of that and see where we are. MR. SCAROLA: Pre-settlement of L.M., E.W. and Jane Doe. MR. LINK: True. It just doesn't say that in the question, Your Honor. THE COURT: But the plan is, as Mr. Scarola has indicated, is to play the edited portions that the Court has sustained and anything that you all have agreed to can Palm Beach Reporting Service, Inc. EFTA00801067 87 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be edited out, such as form objections and that type of thing, but let it keep flowing. Then -- MR. LINK: I am going to ask the Court to take a look at the question, because it doesn't limit it to the three cases. THE COURT: Okay. MR. SCAROLA: But it includes the three then pending claims. So if his contention is that any one of those claims is fabricated, then he would say, Yeah, these three claims were all fabricated. THE COURT: I'm going to sustain the objection. And the reason for Court's rule is this. Because it is not specific -- and, in fact, it says otherwise. In the preceding question it reads on page 71, line three: "Well I'm not limiting my question to the three cases referenced in your Complaint. I want to know whether you contend that any claim against you has been fabricated." MR. SCAROLA: And in that regard, Your Honor, again, we are looking at motive and the impact and weight of all of the cases Palm Beach Reporting Service, Inc. EFTA00801068 88 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that were being prosecuted against Jeffrey Epstein. His belief that there was value in all of the claims is relevant and material. But by refusing to answer that any of them were fabricated, he is expressly including the three claims, because that's expressly identified. THE COURT: I understand. I, again, believe in trying to make sure that the Court is not taking any invocation of the Fifth Amendment lightly, to have to try to defend himself, meaning Epstein, at that particular juncture to any pending claim would, in my view, sustain his right to the Fifth Amendment privilege, because then it would have to go into detail. If it was these three claimants alone I wouldn't have a problem. But because it is extremely broad, that overbreadth would not probably be allowed as a live question, if you will, in the courtroom if properly objected to, and thus would be further implications of the Fifth Amendment. I find it to be overly broad and I sustain the objection to that question. Palm Beach Reporting Service, Inc. EFTA00801069 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: Yes, sir. We are at page 88, lines 19 through 25 and 89 lines 1 through 2. THE COURT: Okay. Let's take a break. I think it's a good time to do that. What I would like to do is just go ahead and hopefully get this done by about 12:30. I would like to at least get through the questions by then. I think it's doable. We can take a few minutes to break and we will see how much time we have to do the interrogatories. If we don't, then we don't. We will take that up at another time. And that can be done through a special set or a 15-minute hearing or something along those lines. I will do my best to provide the time. All right, let's take a brief break. And thanks again to our court reporter and deputy for their assistance as well. We will be in recess for about five minutes. MR. SCAROLA: May I ask a procedural question, Your Honor? Palm Beach Reporting Service, Inc. EFTA00801070 90 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Sure. MR. SCAROLA: You mentioned, repeatedly, setting shorter hearings. In light of the fact that we are still a few months away from trial, would it make sense for us to try to get a larger block of time so that Your Honor is able to focus with some degree of continuity on these issues? I'm thinking perhaps if you have a non-jury calendar between now and then, if you can give us a full day, that might -- THE COURT: We will look into it. Off the record. (A discussion was held off the record.) (A recess was taken 11:50 a.m. - 12:04 p.m.) THE COURT: Page 88, lines 19 through 25 through page 89, lines 1 through 2. Quote: Did sexual assaults ever take place on a private airplane on which you were a passenger? End quote. My inclination is to not allow that, along with the number page 89, lines 4 through 10. MR. SCAROLA: Your Honor may recall Palm Beach Reporting Service, Inc. EFTA00801071 91 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that a specific focus of allegations in the Complaint is that Mr. Edwards was engaging in misconduct for the sole purpose of enhancing the Ponzi scheme. And one of the specific acts of misconduct was pursuing discovery with respect to what was going on on the airplanes, in spite of the fact that Mr. Edwards' specific clients were not themselves assaulted on the air planes. Both state and federal law make those other assaults clearly discoverable, and in the case of federal law, clearly admissible in evidence. So this line of inquiry is obviously relevant and material. If Mr. Epstein knew that sexual assaults were taking place on the airplanes, if he knew that there were celebrities and dignitaries -- including those specifically whom Mr. Edwards was seeking to depose -- were on the planes at the time that those assaults occurred, then there's no way he can base his probable cause for suing Mr. Edwards on the pursuit of discovery that Mr. Epstein knew was highly relevant and would lead to the Palm Beach Reporting Service, Inc. EFTA00801072 92 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discovery of admissibility evidence. So unless Your Honor is going to preclude Mr. Epstein from making any reference to those matters and Mr. Epstein's counsel from making any reference to those matters as allegedly supporting probable cause, then we have to have the ability to be able to rebut those contentions. THE COURT: There's a big difference between asking Mr. Epstein questions to the effect of, Do you take issue with Mr. Edwards seeking discovery? As part of your lawsuit are you taking issue with Mr. Edwards seeking discovery of flight logs of what may have transpired on those airplanes, if anything? than questions boldly asserting, quote, Did sexual assaults ever take place on a private airplane on which you were a passenger? End quote. That doesn't even suggest those were his airplanes. As well as the next question, "Does a flight log kept for a private jet used by you contain the names of celebrities, dignitaries or international figures? End Palm Beach Reporting Service, Inc. EFTA00801073 93 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quote. So while I am understanding the need for Mr. Edwards being able to have the ability to prove a lack of probable cause and malice, the questions themselves should not boarder on -- the first one -- on -- let me just leave it at that, and that is, I believe that looking at this primarily from a 403 analysis, and whether a malicious prosecution claim, which we have to remain focused, whether any probative value would be materially outweighed by the prejudice. I find that that analysis would be applicable here, therefore, sustaining the objection. MR. SCAROLA: May I make one further comment, Your Honor? And that is this. Clearly these are predicate questions. And if I can't even get a response to the predicate questions whether any of these celebrities were on his plane, as an example, then how can I get to ask the follow-up questions that go specifically to the allegations that are included within the Complaint? Palm Beach Reporting Service, Inc. EFTA00801074 94 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And again, if he's not going to rely upon -- if he's precluded because he chooses to sanitize this case to the extent that we are not going to get into any of these things -- if he's not going to say that one of the reasons why I believe Brad Edwards was a knowing participant in this Ponzi scheme was because he was pursuing discovery about what went on on my airplanes and who was there at the time, then I don't need to ask these questions. But if he's going to be allowed to do it, these are predicate questions and to getting into those details, and he refuses to even answer those predicate questions. THE COURT: And the ruling of the Court remains as far as the question, quote, Did sexual assaults take place on your private airplane which you were passenger? End quote. They are far too broad and do not specifically deal with issues pertaining to this particular case, as I mentioned before. The flight log issue, again, in terms of the way the question is phrased, I don't Palm Beach Reporting Service, Inc. EFTA00801075 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe is something that is independently admissible and should carry with it a Fifth Amendment adverse inference. Whether or not you choose to introduce such evidence elsewhere or by other means is not what I am suggesting here. It's solely the questions that were asked. And to elevate them to inference based upon the invocation of the Fourteenth Amendment, based upon the matter in which those questions were asked and the form of those, is the basis for the ruling. MR. SCAROLA: That clarification is helpful. Thank you, Your Honor. THE COURT: The next issue is, quote, Have you ever socialized with Donald Trump in the presence of females under the age of 18?" I take the same position as I have on these last two where I would sustain them. Let me provide you with the reason, and I will give you the opportunity to argue. And that is, that the word socialize with anyone in the presence of females under the age of 18 -- socialize has and can have a very benign connotation. People can Palm Beach Reporting Service, Inc. EFTA00801076 96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 socialize after church in a church hall with children and people anywhere from the age of infancy to 101. Whether it's Donald Trump or anyone else -- MR. SCAROLA: Alan Dershowitz is the next question. THE COURT: conceivably it would be the same response in Mr. Trump's -- President Trump, now stands the situation, as the proprietor of Mar-a-Lago, there could be numerous occasion where Mr. Epstein may have been an invited guest and Mr. Trump's own daughters, who may have been under the age of 18 at the time were also invited guests. Socializing carries with it many different connotations. Your position. MR. SCAROLA: In which case there would be absolutely no basis to assert a Fifth Amendment privilege. If Jeffrey Epstein were socializing at a church hall with Donald Trump and children, if he was socializing at Mar-a-Lago with Donald Trump and children, Palm Beach Reporting Service, Inc. EFTA00801077 97 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there could be to valid assertion of a Fifth Amendment privilege. It is only if there is a link between that answer and the commission of a crime that the assertion of the Fifth Amendment privilege is valid. So by asserting a Fifth Amendment privilege and not saying, Yes, I have, or no, I never have -- by asserting a Fifth Amendment privilege what Jeffrey Epstein is saying is, I have socialized in the presence of Donald Trump and children under such circumstances as would provide a link in the chain of establishing my guilt in the commission of a crime. And these are the specific people who Jeffrey Epstein claims were inappropriately included in discovery requests. They have been referenced in his Complaint. So the starting point is, did you ever socialize with Donald Trump in the presence of children? When did that occur? Where did it occur? Who were the children? Were any of those children the alleged victims in these crimes? But we get cut off in asking any of those questions when a Fifth Palm Beach Reporting Service, Inc. EFTA00801078 98 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amendment privilege is asserted to the predicate questions. So that's my response to the concern that Your Honor has expressed. These are specifically referenced in the Complaint. And again, if there is to be no reference to those allegations in the Complaint as supporting a basis for probable cause as to claims brought against Bradley Edwards, then and only then do these questions become irrelevant. If there is any reference to it -- and there has to be because the Complaint is going to come into evidence. It is the foundation of the malicious prosecution claim. As soon as that's in, that's the assertion that has already been made. We don't have to wait for it to be made when Jeffrey Epstein takes the witness stand. He has said it in his Complaint. THE COURT: Said what? MR. SCAROLA: He has said that it was seeking discovery from Donald Trump and Tommy Mottola and Alan Dershowitz, which forms the basis of his believing that there Palm Beach Reporting Service, Inc. EFTA00801079 99 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was probable cause that Bradley Edwards was a knowing participant in the Ponzi scheme. Specifically, Your Honor, the references -- I have just been handed the Complaint. The references appear at paragraph 38, page 14 of the Complaint. "Edwards' office also notified Defendant that he intended to take the depositions of and was subpoenaing (i) Donald Trump (real estate magnate and business mogul); (ii) Alan Dershowitz (noted Harvard Law professor, constitutional attorney and one of Epstein's criminal defense attorneys); (iii) Bill Clinton (former President of the United States; (iv) Tommy Mottola (President of Sony Record); and (v) David Copperfield (illusionist). "The above-named individuals" paragraph 39 -- "were friends and acquaintances of Epstein with whom he knew" -- and I'm reading that exactly "with whom he knew through business or philanthropic work over the years. None of the above-named individuals had any connection whatsoever with any of the Palm Beach Reporting Service, Inc. EFTA00801080 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 litigation team's clients, E.W., L.M. or Jane Doe." So this is part of what he is alleging was his probable cause for filing the Complaint against Bradley Edwards. It goes on to the next paragraph to talk about the ridiculous and irrelevant discovery that was being sought by Brad Edwards. So again, if they are going to abandon those claims, if there is a stipulation that that did not form the basis of any probable cause to believe that there was improper conduct on Bradley Edward's part, then that's fine. But if they are going to continue to contend that that forms the basis, then we obviously get to talk to Jeffrey Epstein about those things. And his refusal to answer raises a reasonable inference against him. THE COURT: Okay. Mr. Link your position. Thank you, Mr. Scarola. MR. LINK: Yes, sir. None of those question were asked that Palm Beach Reporting Service, Inc. EFTA00801081 101 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he just talked about. He didn't ask, Tell me your view of what was being done improperly by Mr. Edwards. And for Mr. Scarola to say when somebody raises the Fifth that I don't get to ask additional questions on the topic -- they could assert the Fifth and he could have asked all the questions he wanted to. So there's nothing about this question, Did sexual assault ever take place -- I'm sorry -- Have you ever socialized with Donald Trump, that should lead to any inference of anything. It's vague, it's overbroad, and has absolutely nothing to do with the issues that are presented in the Complaint, Your Honor. THE COURT: All right, the last word I will note is this, that I'm not only sustaining the objection for the reasons that I have indicated, but also, because of the fact that all objections, except to form, are preserved for the reasons that are outlined by Mr. Link, I am going to sustain those objections. So we are going to move on, then -- and Palm Beach Reporting Service, Inc. EFTA00801082 102 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it applies -- same question as applies to Mr. Dershowitz, applies to Mr. Mottola, implies to Mr. Copperfield. The next issue is on page 17, page 95, lines 16 through 25 through 96, lines 1 through 3. Question: "Have you ever sexually abused children?" End quote. Mr. Scarola. MR. SCAROLA: Clearly goes directly to Jeffrey Epstein's knowledge of the validity of the claims against him by the three individuals represented by Bradley Edwards. But in addition to that, it is highly probative with regard to motive, because the more sexual abuse of children in which Jeffrey Epstein engaged, the greater was his motive to attempt to find some way in which to avoid being held both civilly and criminally liable for those assaults. So it goes directly to the issue of malice and to the issue of motive. THE COURT: Mr. Link. MR. LINK: Judge, this is one I didn't even think I would have to argue, but could there be anything more irrelevant and 403 Palm Beach Reporting Service, Inc. EFTA00801083 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prejudicial than to ask the question, Have you ever sexually abused children? It's not even limited to the three in this case. There is this area that you agreed should not come it, that's graphic that we are not trying to sanitize the whole trial, but to ask the question and let the jury hear, Have you ever sexually abused children? I can't imagine a more prejudicial question and reading of a Fifth Amendment answer to it, Your Honor. THE COURT: Because of the overbreadth of the question, the likelihood that I would allow it to be asked and answered -- I cannot stop it from being asked, but the likelihood I would allow it to be answered over objection would be slight. Probably I would not. Therefore, I'm going to go ahead and sustain the objection as to the nature of the question. I understand the position taken. And it's actually a much closer issue than Mr. Link is suggesting. But at the same time, the breadth of the question is simply Palm Beach Reporting Service, Inc. EFTA00801084 104 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 without bound. Because it is outside of the realm of L.M., E.W. or Jane Doe, I am going to disallow the question. MR. SCAROLA: May I respond? I am not challenging the Court's ruling in any respect. I understand that. But Your Honor made reference to objections except as to form being preserved. An objection as to the overbreadth of the question is an objection as to form. That's the only observation I want to make for the record. THE COURT: That may be. But again, relevancy would also be involved here, because of its lack of specificity as it pertains to the three individuals at issue. I believe I'm allowing the questions to be asked of the three individuals. MR. SCAROLA: You are, sir. Yes. MR. LINK: Mr. Pike raised an objection to form. It's right here in the transcript. THE COURT: I see that. The ruling of the Court remains the same. Thank you. Next. Quote, Did you have staff members that assisted you in scheduling appointments with underage females, that is, Palm Beach Reporting Service, Inc. EFTA00801085 105 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 females under the age of 18? End quote. Mr. Scarola. MR. SCAROLA: This goes to the strength of the claims brought by Bradley Edwards on behalf of his three clients. There were, in fact, other witnesses, including Mr. Epstein's houseman, who were involved in setting up the multiple daily appointments that Mr. Epstein made with children for purposes of abusing them. THE COURT: Mr. Link. MR. LINK: This question, even if you read it, is a benign type of question. It's like the word socialize, Your Honor. During the course of his life -- there's no time frame here. This is like in the course of his life has he ever scheduled appointments with somebody that was under the age of 18 at any time for any purpose, then to draw an adverse inference from that doesn't flow. Second, if the point is that it's to show underage contact with females in a sexual nature, it is not limited to the three Edwards clients. But I don't think Palm Beach Reporting Service, Inc. EFTA00801086 106 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you can draw that inference from the wording that was chosen in the question. So it's vague, it's prejudicial, it's not relevant, and it's not the kind of question that should cause this Court to give an adverse inference, Your Honor. MR. SCAROLA: And if that were true, then Mr. Epstein did not need to assert his Fifth Amendment privilege. If there were circumstances where he was making appointments for entirely benign purposes, then the answer is yes. If it never happened, the answer is no. And the only basis for asserting a Fifth Amendment privilege is if those appointments were being made for purposes of procuring sexual acts by minors. THE COURT: Well, the interesting thing about this one is similar to some of the others, and that is that Mr. Epstein answers the question at least in part, quote, So long -- strike that. "So along with many of the other claims that the Rothstein firm crafted with malicious claims against people like me and Palm Beach Reporting Service, Inc. EFTA00801087 107 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 others of a sexually charged nature in order to simply fleece investors out of millions of dollars in South Florida, these types of questions, though I'd like to answer today, at least this specific question, I'm going to assert, unfortunately, my Fifth, Sixth and Fourteenth Amendment right, though I'd prefer to answer the question. End quote. That partial answer, so to speak, is relevant to the malicious prosecution claim. And the context of which the question is asked has already been formulated by virtue of those questions, for example, relating to [REDACTED]. So the objection is overruled for the reasons that I have cited earlier and just now. Next question. Page 104, lines 3 through 9 through 20. "How many minors have you procured for prostitution?" Mr. Scarola. MR. SCAROLA: Your Honor, these questions need to be taken in the context of Mr. Epstein's inability to identify the minor or minors who he pled guilty to Palm Beach Reporting Service, Inc. EFTA00801088 108 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 procuring for purposes of prostitution. And it reflects upon the credibility of his assertion that he can't remember who he pled guilty to having procured for prostitution. So it is in the entire context of that line of questioning that these questions become relevant and material. Was he pleading guilty to having procured L.M. E.W. and/or Jane Doe for prostitution? He can't remember. And he then asserts his Fifth Amendment privilege with regard to telling us how many children he procured for prostitution so that we can make a determination as to whether it is credible that he can't remember who it is he pled guilty to and served substantial jail time for having pled guilty to. THE COURT: The relevance of that, i.e., tends to prove or disprove a material fact. What is the material fact that is at issue? MR. SCAROLA: The material fact is the quality of the claims brought by L.M., E.W. and Jane Doe. That is, it is our position that he was pleading guilty to procuring Palm Beach Reporting Service, Inc. EFTA00801089 109 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them for prostitution. And his refusal to answer the question gives rise to a reasonable inference that he was procuring them for prostitution. THE COURT: Those questions were not specifically asked. I could see if you had asked him whether or not he pled guilty to procuring a minor for prostitution as related to any of those three young females. That would be different than the question that was asked, quote, How many minors have you procured for prostitution? End quote. There are other questions that he has answered. The jury can infer what they wish to infer from the evidence. That question is sustained -- the objection is sustained. Next. "Yes, but my question wasn't about what you pled guilty to. I just want to know how many minors you have procured for prostitution. End quote. Same ruling applies to that question. The next, page 106, lines 7 through 10. Question, quote, I know -- strike that. "I want to know whether you pled guilty because you were, in fact, guilty. End Palm Beach Reporting Service, Inc. EFTA00801090 110 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quote. My inclination is to permit that question to be asked. Mr. Link. MR. LINK: Your Honor, asking the question, Did you pled guilty because you were, in fact, guilty, how does that have any relevance to the malicious prosecution action? It is a 403 prejudicial question in and of itself. If you read that question, I don't believe you would let that question be asked in the courtroom. You're allowed to ask somebody if they have been convicted of a crime. But to then say, So you were convicted of a crime because you were, in fact, guilty of all of the allegations that were in the information and pled against you, that would never come in, Your Honor, and it would be volitive of 403. That's what the inference would be from this. THE COURT: Mr. Scarola. MR. SCAROLA: I don't have any further argument, Your Honor. I think it's Palm Beach Reporting Service, Inc. EFTA00801091 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 obviously relevant. THE COURT: I agree. I read the context from which that question came. I believe that it is in context, it does give the jury a flavor of the way this deposition was being conducted and responded to, the combative nature of arguably both questioner and responder. And there are other times strike that. There will be times when people will plead guilty for matters of convenience, for matters of protecting others. There's a myriad of reasons why there would be guilty pleas taken and not simply because someone was guilty of the crime that was committed. MR. LINK: I understand. May I make one more -- THE COURT: I think we have gone through it as much as we need. MR. LINK: I just want to clarify on the record that we showed the Court the colloquy. And the minor that was the subject of the procurement charge was AD. The Court asked whether it related to Palm Beach Reporting Service, Inc. EFTA00801092 112 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the three that are involved in this lawsuit. It did not. THE COURT: It's not that I'm concerned about that. What I'm concerned about in this particular context goes back to the strength and weakness of their respective cases, when they were brought, and the continuation of the claim that was brought by Mr. Epstein against Mr. Edwards and the timing of his guilty plea being all wrapped up into relevant information that may or may not have been the cause for him bringing the cause and the defense -- the plaintiff's claim -- malicious prosecution claim -- Edwards' claim the lack of probable cause. MR. LINK: I understand the Court's ruling. THE COURT: Next. The quote, Have you ever coerced, induced or enticed any minor to engage in any sexual act with you?" My inclination is to sustain the objection. Mr. Scarola. MR. SCAROLA: I would point out, Your Honor, the predicate to the assertion of the Palm Beach Reporting Service, Inc. EFTA00801093 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fifth Amendment right. "A typical question from Mr. Scarola representing Mr. Edwards and the firm of Rothstein, who Scott Rothstein sits in jail for crafting cases of a sexual nature against people in South Florida, me and others, the others yet to be determined." So again, we are really going back to one of the earlier questions where the predicate made the difference to Your Honor. I suggest the predicate here makes a substantial difference as well. It shows the malice and motive on the part of Mr. Epstein to bring these claims against Mr. Edwards. MR. LINK: And the objection by Mr. Pike was to form, which was there with the other question, that the Court looked at, and so you made the point that there was a response. But if there's a form objection, just because there's a response doesn't make that question valid, Your Honor. And this question is invalid for the reasons that you described. It is vague. It's not related Palm Beach Reporting Service, Inc. EFTA00801094 114 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to the three folks in this case. It's prejudicial. And I believe Mr. Pike's form objection makes it different than the Court's last ruling. THE COURT: Well, Mr. Epstein chose to answer the question, at least in part. Had he simply refused to answer and assert a Fifth Amendment privilege, as would have likely carried the day on this question. However, his choosing to do so may not have impacted the claims as they related to direct claims of L.M., E.W. and Jane Doe, but the answer does directly impact upon the issues of malicious prosecution. So I'm going to allow it as asked and answered -- chosen to be answered by Mr. Epstein. Next one. "How many times have you engaged in fondling underage females?" That is a question found at page 108, lines 8 and 9. The witness Mr. Epstein chooses to answer as follows, because Mr. Pike allows him to do so. "Again, as another one of the irrelevant questions asked of (sic) this lawsuit with respect as a client how I was Palm Beach Reporting Service, Inc. EFTA00801095 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 abused by the Rothstein firm for his -- the practices, the abuse of the legal system, the -- hopefully, the ladies and gentlemen of the jury will be able to see through some of these ridiculous questions with respect to questions that day, at least, I must take the Fifth" -- And he goes on and says, quote -- but I believe are obvious (sic) to the ladies and gentlemen of the jury what you're trying to do here, Mr. Scarola." End quote. Again, he has answered the question that is germane to the malicious prosecution claim. He has chosen to do that. MR. LINK: I understand Your Honor's ruling. And I would suggest, in light of that ruling, that he's answered the question. There should be no adverse inference from any of the questions in which there is an answer. In light of the Court's ruling that that's why they are coming in, you do not need the Fifth Amendment adverse inference on those particular questions, Your Honor. MR. SCAROLA: Would you like a response Palm Beach Reporting Service, Inc. EFTA00801096 116 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to that? Do you need a response to that? is probably a better question. THE COURT: I would rather you respond. MR. SCAROLA: My position in that regard is that Mr. Epstein cannot make self-serving speeches that are a partial response to a question and then assert his Fifth Amendment right so as to preclude any follow-up to what he's saying. And that's what he has done. And the assertion of that Fifth Amendment right to preclude any follow-up to his self-serving speech does provide the basis for drawing an adverse inference. THE COURT: And that's the problem, is he can't suggest to the jury -- he's doing that directly in the portion that I have read here -- how ludicrous this all is -- if he used that word. He used the word ridiculous -- to try -- to distance himself as far as he can from this type of question, but then at the same time saying, "I refuse to answer that question on the grounds that it may incriminate me." Palm Beach Reporting Service, Inc. EFTA00801097 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: Yes, sir. Your ruling, though, says he chose to answer the question. If he didn't answer the question, then his answer could be stricken and we would go back to a simple Fifth Amendment analysis. It doesn't seem a balance to have it both ways. Yes, it's coming in because he chooses to answer it. But he's going to have the Fifth Amendment adverse inference because what he's given, as Mr. Scarola says, is really a speech and not an answer to the question. So if it's not an answer to the question, how then does that make the question then relevant and available to the jury? THE COURT: Because -- MR. LINK: I know it's argument and not a question, but I know you're going to answer it for me. THE COURT: I'm going to try. Because on the one hand, he distanced himself using the word ridiculous. How dare someone ask me such a ludicrous question? But then in Palm Beach Reporting Service, Inc. EFTA00801098 118 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the same breath, literally, appealing to this jury -- after appealing to them -- in fact, in between his appeals to the jury to believe him when he says this is ridiculous, at the same time in the same breath chooses to invoke his Fifth Amendment right to refuse to answer a question on the grounds that it may incriminate him. MR. LINK: Again, I have no problem striking his answer -- THE COURT: That's the point that I am trying to suggest to you. It's a double-edge sword that he has attempted to engage in here and to utilize that is contrary to both positions. In other words, he chose to answer partially, and at the same time chose to invoke his Fifth Amendment privilege, which can be used adversely against him. MR. LINK: Mr. Scarola has suggested he didn't answer the question, and he did not, in truth. He did give a speech. But I think from the Fifth Amendment standpoint, Your Honor, it should be the focus on the question. And if you simply Palm Beach Reporting Service, Inc. EFTA00801099 119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 look at the question, how does that question help the jury make a determination of probable cause or malice? It doesn't. THE COURT: I have already answered your question. Mr. Scarola has already done so as well, so I am not going go further on that. Again, when he makes these types of speeches, he is acting at his own peril, and that is essentially the crux of the ruling by the Court. Next, quote, How many times have you engaged in illegal sexual touching of minors?" Mr. Pike makes form and relevance objections, and the witness picks up on that by saying, quote, Again, an irrelevant question to this lawsuit, strictly as a continued attempt to bring in irrelevant facts to the fact of what the Rothstein firm has done to both me and others in South Florida, defrauding investors of millions of dollars, knowing that, at least today, I'm going to have to, with respect to that particular question, assert my Fourth -- Palm Beach Reporting Service, Inc. EFTA00801100 120 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 excuse me -- Fifth, Sixth and Fourteenth Amendment rights. End quote. MR. SCAROLA: My argument would be the same, Your Honor. MR. LINK: My argument would be the same, except that Mr. Scarola moved to strike as unresponsive, so I do believe. MR. SCAROLA: Will withdraw. MR. LINK: I do believe, Your Honor, if you're doing the balance and looking at the question -- whether that question helps the simple fact that a witness gives a non-responsive answer shouldn't convert the question into one that should go before the jury. THE COURT: What I've said is -- and I continue to take this position in terms of the ruling that I have made -- and that is that these statements made by Mr. Epstein are, in my respectful view, clearly relevant to the malicious prosecution claim: his motive, his state of mind, whether or not he acted with malice, whether or not there was a probable cause issue associated with this. Remember the context of a March 17, Palm Beach Reporting Service, Inc. EFTA00801101 121 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2010 deposition taken months after and his filing of the lawsuit in question. These are all things that are relevant, tending to prove or disprove a material fact or element, that being probable cause and malice, his reason for filling the suit in the first place. This information that he provided, he provides a wealth of information to a jury to draw conclusions or inferences. That's the point I'm making. MR. LINK: I understand your ruling. I respectfully disagree that asking somebody how many times you engage in illegal sexual touching of minors has anything germane to probable cause or malice, but I respect the Court's ruling. THE COURT: That's what I'm saying. The inferences that a jury draws from this, I think, are going to be relevant. MR. LINK: I understand the Court's ruling. THE COURT: The next question. "Do you have a personal sexual preference for children?" Palm Beach Reporting Service, Inc. EFTA00801102 122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: Your Honor, it will be necessary, in order for you to rule on this, for you to take a look at page 111. You will see the ellipsis there, but what precedes the assertion of the Fifth Amendment right is relevant in light of the Court's ruling that you have made. So the answer actually begins at page 111, line 8 and goes through line 20. THE COURT: The answer, again, was in similar form. The Witness: quote, Another totally irrelevant question to this lawsuit, Mr. Edwards' behavior, in an attempt to strictly divert attention from the wrongdoing of the Rothstein firm in this matter by asking sexually charged questions in a case where the Rothstein firm has been charged by the U.S. Attorney of fabricating claims of a malicious nature, hiding behind attorney-client privilege, forging documents -- excuse me -- but as with respect to these questions designed for nothing more than to harass me. Mr. Scarola, I'm going to have to take Fifth, Sixth and Fourteenth amendment. End Palm Beach Reporting Service, Inc. EFTA00801103 123 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quote. MR. LINK: I don't want to test the Court's patience with making the same argument. That's my goal. THE COURT: It is the same ruling. When a witness chooses to introduce critical -- potentially critical information that directly relates to the malicious prosecutions claim, which, by the way, was the reason this deposition was taken, I presume -- in other words, the deposition was taken under this case number -- the Epstein case number. MR. LINK: Yes, sir. THE COURT: It wasn't taken as a byproduct of an L.M. deposition or an E.W. deposition or a Jane Doe deposition or any of the other young females involved in these claims. This was taken as a direct reason for the claim brought by Mr. Epstein in conjunction with that -- obviously before the malicious prosecution claim was brought -- but in the Epstein lawsuit against RRA, Edwards and L.M. MR. LINK: So the Court knows, the Palm Beach Reporting Service, Inc. EFTA00801104 124 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 malicious prosecution case against Mr. Epstein was filed 17 days after the original Complaint. It was in play. THE COURT: Okay, then that doesn't really matter. I was just saying that the point I was making was that the deposition was taken of Mr. Epstein as a plaintiff in his case against RRA, Edwards and L.M. MR. LINK: And as a defendant. THE COURT: Perhaps. MR. LINK: Your Honor, I appreciate your ruling. I just want this for the record for clarification. But for the witness making the decision to answer, you would have granted the objection; is that correct? THE COURT: That's what we will need a little bit more discussion on. And that is -- MR. SCAROLA: May I suggest that it is not necessary for Your Honor to reach that issue and provide what is, in effect, an advisory opinion? That is not an issue before the Court. The answer is what the Palm Beach Reporting Service, Inc. EFTA00801105 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answer is. Your Honor has ruled on that answer. THE COURT: My concern is the adverse inference. The answer is going to come in. It's whether, though, an adverse inference can be drawn from those answers. And that's what I'm concerned about, because again, we talked about accountability and the like, and that Mr. Epstein would have to live with those responses, just like the allegations that he made in his Complaint. And the same with Mr. Edwards and his defenses and his prosecution of the malicious prosecution claim. The problem comes in, though, when trying to determine whether there should be, in fairness to all, an adverse inference to be derived because he decides to -- for lack of a better word -- ruminate -- whether the jury or opposing counsel -- how either ridiculous these questions were or how irrelevant these questions were with the Court finding that those responses would be, in fact, relevance to the malicious prosecution. Palm Beach Reporting Service, Inc. EFTA00801106 126 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So I'm going to have to take a look as to these particular questions -- only these generic, general questions, and see whether or not they would carry with them Fifth Amendment adverse inference aspects. So I'm going to reserve on that, take that up at another time. MR. LINK: Thank you, Judge. Would you like us to provide a short bench memo on that issue before the hearing from both sides? THE COURT: Yes. MR. LINK: We will do so. THE COURT: The next one is probably going to be similar. Let's look at it, though. Still on 111, lines 23 through 24, the question was asked -- Question, quote, Have you ever acted on a sexual preference for children?" MR. SCAROLA: Your Honor, in light of the Court's rulings with regard to the other questions, I'm going to withdraw this. I just don't need it. I suggest it falls under the same category, but it's not necessary to deal with that issue. Palm Beach Reporting Service, Inc. EFTA00801107 127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: So withdrawn. Thank you. The next one is, Question, "Your Complaint at page 27, paragraph 49 says that 'RRA and the litigation team took an emotionally driven set of facts involving alleged innocent, unsuspecting, underage females and a Palm Beach billionaire, and sought to turn it into a gold mine.'" Who is the Palm Beach billionaire referred to in that sentence? MR. LINK: Your Honor, if it helps, I only have general objections to that. THE COURT: Overruled. And the adverse inference would be left. The next page, 22. Page 113, lines 9 through 25, Question: "What is the emotionally driven set of facts to which you make reference in that sentence?" End quote. Any other objections? MR. LINK: I believe he answered the question fully and that there should be no reason to have a Fifth Amendment adverse inference from him providing a full answer. MR. SCAROLA: My response to that is, Palm Beach Reporting Service, Inc. EFTA00801108 128 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he obviously didn't provide a full answer. It was something he chose to hide through the assertion of the Fifth Amendment. THE COURT: In this particular instance, I feel comfortable in not only allowing the answer to remain, but also to permit the adverse inference as it's directly related to the lawsuit brought by Mr. Epstein. Next is page 114, line 25 through 115, line 13. Question: -- and it's quoted within the question -- "Rather than evaluating and resolving the cases based on the merits, that is, facts which included knowledgeable, voluntary and consensual actions by each of the claimants." The question then goes, "What are their names?" The answer, quote, I think the prostitutes' names were -- the prostitute that you described before was L.M. With respect to the others, I'm going to have to claim the Fifth, Sixth and Fourteenth Amendment, sir." Palm Beach Reporting Service, Inc. EFTA00801109 129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Okay, Mr. Scarola. MR. SCAROLA: This is a direct quote from the Complaint. We're asking him who it is that you say were the knowledgeable, voluntary and consensual -- THE COURT: Actions. MR. SCAROLA: -- consensual persons who actions were involved, yes. Who were the claimants who were allegedly knowledgeable, voluntary and consented in these actions. And one of them he identifies as L.M. and the others he refuses to identify on the basis of his Fifth Amendment privilege. So these are the claims he said were fabricated. THE COURT: Mr. Link. MR. LINK: General objections only, Your Honor. THE COURT: Same ruling. I am going to allow it in with the adverse inference involved, since it, again, directly relates to the claims that are brought by Mr. Epstein and consequently the malicious prosecution claim brought against Mr. Edwards. Palm Beach Reporting Service, Inc. EFTA00801110 130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 115, lines 21 through 25 through page 116, line 1. Question, quote, Okay, so one of the people that you're referring to is L.M., who you've identified as L.M.; is that correct? End quote. Then he takes the Fifth. MR. LINK: You want me to go first, Your Honor? THE COURT: I don't think you need to. What would be the objection? MR. LINK: Just it's vague and confusing. I don't know what's the context of it here. So one of people you are referring to is L.M. -- who you have identified as L.M.; is that correct? Tie-in to the questions before? THE COURT: Yes. MR. LINK: Then I have no objection. Just general. THE COURT: Then they are overruled. The next one is, "What are the voluntary and consensual actions by L.M. that you are referencing here? MR. LINK: General only, Your Honor. Palm Beach Reporting Service, Inc. EFTA00801111 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Same ruling, since they directly relate to the L.M. claim, and the L.M. claim is directly stated and set forth as weak -- one of the weak claims, et cetera, and contains various accusations against L.M., therefore will be directly related not only to Mr. Epstein's Complaint but also Mr. Edwards' malicious prosecution claim. Page 128, line 15 through page 129, line 3, Question: quote, Is there anything in L.M.'s Complaint that was filed against you in September of 2008 which you contend to be false?" Same action? MR. LINK: Same objection, Your Honor. THE COURT: Same ruling. MR. LINK: I think that concludes the first deposition transcript. Does Your Honor want to continue? It's five to 1. THE COURT: I think this is probably a good time to break. Thank you everybody for their kind participation in both written and oral Palm Beach Reporting Service, Inc. EFTA00801112 132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 presentations. What I will do is I will see if there's some time that's mutually available next week that I can fit the rest of this in and what remains as far as those things that were listed in the outline. It shouldn't take, hopefully, too much of your time. I think we have gotten the lion's share of material out of the way, which I'm glad that we have. Thanks again everybody for thee hard work, including our court reporter and our deputy as well. I ask that you start preparing the orders, conferring with each other on those orders, conferring about the remaining discovery based upon some of the information I tried to impart and the basis for the rulings that I've made, so you may be able to save some additional time. But in the meantime, as I said, I will go about trying to give you some additional time in this matter. Some of the things can be handled on an 8:45. I saw a recent motion, for example, Palm Beach Reporting Service, Inc. EFTA00801113 133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to -- MR. SCAROLA: Permit request to admissions -- THE COURT: Permit request to admissions on the New York sex offender issue, that can be on an 8:45. MR. LINK: Your Honor, would it be helpful if we look at everything that's pending and give you a new letter that lists what's pending and identify it for you? THE COURT: I thank you for that. Again, because of the unyielding number of cases that we're dealing with and some of the more heavily litigated cases, including this one, it really does help me to keep everything in focus and know what exactly I'm facing so that I can give you sufficient time. MR. LINK: We will do that. Thank you very much, Your Honor. - - - (The above proceedings were concluded at 12:57 p.m.) Palm Beach Reporting Service, Inc. EFTA00801114 134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT CERTIFICATE STATE OF FLORIDA ) : SS COUNTY OF PALM BEACH ) I, SONJA D. HALL, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true record of my stenographic notes. Dated this 11th day of December 2017. SONJA D. HALL Palm Beach Reporting Service, Inc. EFTA00801115