IN THE CIRCUIT COURT OF THE

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, vs. SCOTT ROTHSTEIN, individually; BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS DATE TAKEN: Wednesday, August 22nd, 2018 TIME: 10:06 a.m. - 12:04 p.m. PLACE 205 N. Dixie Highway, Room 10D 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. EFTA00801142 L 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: For 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., ESQUIRE For Jeffrey Epstein: ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Ave. South, Suite 1400 West Palm Beach, FL 33401 By JACK A. GOLDBERGER, ESQUIRE Palm Beach Reporting Service, Inc. EFTA00801143 1 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: Good morning. Welcome. We are here -- I hoped that if I waited long enough maybe it would be nothing. MR. LINK: We have an update to what you have. We are trying to force a reduction in paperwork for the judiciary. THE COURT: Thank you. I have the August 20th letter. It's the last letter I received from Mr. Link. I did want to specially recognize the Link and Rockenbach firm -- not that the Searcy Denney firm didn't also do a good job -- but you did a particularly good job in organizing these materials. That really makes a big difference when it comes to preparing. So I thank you for taking that extra time. I know it takes quite a bit of time. MR. SCAROLA: It's amazing what can happen when you have a client who is able to pay hourly fees. MS. ROCKENBACH: Or a really diligent paralegal who we appreciate. THE COURT: I take it more as a matter of respect for the Court in organizing the Palm Beach Reporting Service, Inc. EFTA00801144 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 material in such a way that it makes my job a lot easier. So for whatever reason it may have happened, I appreciate the fact that it was done. So a couple of things. Have a seat. Thank you all. When it comes to the deposition excerpts and objections, I am treating this case as I would any other case in that respect, and that is that I don't hear the questions and answers. I don't hear arguments on the questions and answers individually, meaning what I do during my own time is, I will review the deposition transcripts and I will rule accordingly, meaning that I will go through the deposition transcript, just like I would live testimony at trial, and not treat it any differently than we instruct the jury to treat deposition testimony as if the witness appeared at trial and considered as any other evidence during the trial. So accordingly, that will save some time. If I do need argument on any individual questions, similar to what we Palm Beach Reporting Service, Inc. EFTA00801145 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would do in trial, I will call a sidebar. In the setting that I am envisioning that I do in other cases, it would be before the jury comes out or at the close of the day, where I will take the deposition home. I will review the objected-to questions. And as I said, I will announce my rulings, of course, but only entertain argument as I see necessary as, again, I do during and would at the trial. So that wouldn't be necessary to argue during this round of hearings. I will call a hearing and make time for it, if it's necessary. MR. LINK: Good morning. Your Honor, Scott Link on behalf of Mr. Epstein. In preparing for today and thinking about doing the questions and the objections and looking at our objections, frankly, I think they are overdone. And we can save the Court some time by redoing them, frankly, and eliminating some of the objections and streamlining it for the Court. THE COURT: That's fine. If you would like some time to do that, I will be more Palm Beach Reporting Service, Inc. EFTA00801146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 than happy to allow a 20-day period for you to streamline those, and that will be helpful. Thank you. MR. LINK: You're welcome, Judge. THE COURT: So that's the way we will take care of that aspect of it, so I don't want anybody to worry about dealing with it during this period of time. My thinking is that if we work hard today we can get this done today. I don't think we will need additional time beyond today. Is your bankruptcy hearing still scheduled for tomorrow? MR. SCAROLA: No, Your Honor. The bankruptcy hearing has been taken off as a consequence of various health problems that precluded us from completing the discovery necessary before the bankruptcy hearing can proceed. The bankruptcy hearing is now set in October. THE COURT: Okay. Thanks. Has Mr. Epstein's deposition been taken? Palm Beach Reporting Service, Inc. EFTA00801147 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: No. MR. LINK: It has not. THE COURT: Has that been rescheduled? MR. LINK: It has not. As part of the bankruptcy proceeding, Your Honor, it's been bumped, but I think we are in the process of rescheduling it. MR. SCAROLA: Judge Ray has implemented the procedure that requires the exchange of direct testimony by way of affidavit in advance of the hearing. There's also an exchange of exhibits. And that could not be completed until the depositions are taken. Those depositions were postponed as a consequence of, as I said, various health problems that resulted in us not being able to move forward. THE COURT: Thank you for that information. And as I mentioned, to the extent that my rulings may be impacted by Judge Ray's ultimate rulings, I do want to continue to make that known to the parties, and we will deal with that as necessary. But again, as I said, I want to be Palm Beach Reporting Service, Inc. EFTA00801148 1 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 am not deferring to Judge Ray. I am simply going to review whatever findings that he may make pertaining to the issues involving the dissemination and copying of the subject disc involving the emails from the Rothstein law firm, and want his input as to the manner and methods by which that material was, in fact if at all, disseminated. We know that there was some dissemination, since Mr. Link and Ms. Rockenbach have obtained the disc. But where it went from there and in the interim of where it may have been and who may have seen it, would be something that I am interested in. My feeling is that Judge Ray would be adequately handling that aspect since it was his order that is allegedly being challenged. All right. So what do we want to do first? I have here the issue of Edwards' notice of filing deposition transcript excerpts and discovery responses by Epstein implicating the Fifth Amendment. Part of Palm Beach Reporting Service, Inc. EFTA00801149 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that was heard on December 7th, 17, but not completed. Is that what we want to do first? MS. ROCKENBACH: Your Honor, do you mind if I approach? I have an updated schedule for you. So there are two motions, Judge, that we have taken off in the spirit of the other motions that we took off. I believe they are 20 and 21. I crossed them off on there. Item nine we have an agreed order. And with the Court's permission -- it relates to taking judicial notice for authenticity purposes. I will walk that up. MR. VITALE: Mr. Link, was that 20 and 22? MR. LINK: I thought so. MR. VITALE: I thought you said 21. MR. LINK: Twenty and 22, Judge. I marked that off on the last page. THE COURT: And you marked off the first one I just mentioned. MR. LINK: I did. This was a different one. THE COURT: I read it, but I didn't Palm Beach Reporting Service, Inc. EFTA00801150 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mention it. MR. LINK: That's the agreed order. And with the Court's permission, we would like to address -- there's two items that involve the Fifth Amendment. Mr. Goldberg will be talking about those. He has volunteered -- I don't know if he volunteered, but he's sitting as the traffic magistrate after lunch today, so if we could take those up first before he rises to a level of semi-importance, that would be helpful. MR. GOLDBERGER: I note the Court laughing. THE COURT: Off the record. (A discussion was held off the record.) THE COURT: Back on the record. Let me orient myself, because the Palm Beach Post didn't bring a photographer today, which I was hoping, which is why I have this box here. You have your cell phone camera? Can you take a picture of the box? She'll indicate that the Judge had boxes of material to review. Palm Beach Reporting Service, Inc. EFTA00801151 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anyway, nice to see you, Jane. Thank you for being here with us as well. Anyway, yeah, tell me where we are. MR. LINK: Yes, Your Honor. That would be item 11. Edwards's motion to compel request for admission answers; and item three, the first half of it. I think item three will probably take longer than item 11. THE COURT: What I have is three, Edwards's notice of Epstein implicating the Fifth Amendment and attorney-client privilege. MR. LINK: That's what we started on and didn't finish. THE COURT: On December 7th? MR. LINK: Yes, Judge. THE COURT: And the second one was item 11. MR. LINK: Eleven, yes sir. Edwards's motion to compel. THE COURT: I got it. Great. MR. LINK: Which one would Your Honor like to start with? THE COURT: I have reviewed thoroughly Palm Beach Reporting Service, Inc. EFTA00801152 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 item three, so I would rather start with that. If it dovetails together, then I will be better prepared for number 11. MR. SCAROLA: Your Honor, excuse me. May I begin with some brief preliminary comments that I hope may be helpful? THE COURT: Sure. MR. SCAROLA: Thank you, Your Honor. Your Honor, I have prepared an outline of what we, from Mr. Edwards's perspective, perceive to be the issues that need to be addressed. You will note that the first of those issues is, were the allegations filed by Jeffrey Epstein against Brad Edwards false. And clearly an essential element of a malicious prosecution claim is the filing of false allegations. What appears beneath that letters A through Z are direct quotes from the complaint. These are -- MR. LINK: Your Honor, may I interrupt and object for just one moment please? This is obviously an opening statement-type presentation with the press that is here to hear it. And as we talk Palm Beach Reporting Service, Inc. EFTA00801153 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about the motions that we have prepared for, if some of this relevant, the Court can hear it. But the Court is very familiar with this case. And I don't think that behooves us for us both to stand up and make press-like opening statements, Your Honor. THE COURT: Well, I am not suggesting anyone is pandering to the press, but I don't really see the need to go through the elements. I think that they can be integrated with the arguments that you are going to make in response to or in support of the motions that have been made, so I'm going to wait on this. I want to conserve our time as best we can and remind you that, again, this is but one of over 1,500 files that I am handling, which I have myriad amounts of work to do on other cases that, unfortunately -- whether by happenstance, luck or otherwise -- the higher-profile cases seem to gravitate to this division. So I have a lot of work to do. So I would prefer -- Mr. Scarola, while I appreciate your preparation -- and this Palm Beach Reporting Service, Inc. EFTA00801154 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 will come in handy, I think, during the respective arguments -- that we handle this in a way that I've chosen, and that is, to deal with the motions that are before me and that are scheduled, and I presume to have been, at least impliedly, agreed to by the parties and by counsel. So I am going to hold off, then, on any type of introductory commentary and ask that you integrate it with the motions that have been brought. MR. SCAROLA: Yes, sir. I would only point out to the Court it was not my intention to read this to Your Honor, nor to make public statements about it. But one of the principal concerns that Your Honor expressed during the lengthy hearing that we began on this motion, but did not finish, is addressing the relevance of the questions that were asked. THE COURT: I'm aware. MR. SCAROLA: And in that spirit, I thought it would be helpful if we identified specifically each of the elements that will be the subject of dispute at the upcoming Palm Beach Reporting Service, Inc. EFTA00801155 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 trial. And that's what this does. It simply outlines the issues that will be addressed by the Court and by the jury. And I thought that it would be helpful if we all had this in front of us. If there's some disagreement about it, that that disagreement be addressed so that we are working with a common understanding of what this trial is going to be about. So with that -- and that's the only preface I will make -- I have given it to Your Honor for whatever value it may have. THE COURT: Thank you again. All right, Mr. Goldberger, let's go ahead and start with the issue regarding the Fifth Amendment and the attorney-client privileges. MR. GOLDBERGER: I'm seeking some clarification as to whether Mr. Scarola and his team are objecting to our invocation of the Fifth Amendment on any of these questions that are contained in the motion. That's my role here today, if someone is contesting whether we can invoke the Palm Beach Reporting Service, Inc. EFTA00801156 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fifth Amendment or not, to explain why we are so doing. I'm not sure -- there are other objections to the deposition questions. Of course, I am only going to take those up as you just indicated you would. THE COURT: Why don't I shape the issue as I now understand it and ask Mr. Scarola for a brief commentary in that regard. There has been a stipulation filed that Mr. Epstein will not be attending nor testifying at trial, as I understand it. MR. LINK: That's correct, Judge. THE COURT: So with that in mind, this issue becomes one of direct evidence as opposed to utilizing it in the form of impeachment. So the landscape has been manifested by Mr. Epstein's decision in that respect. Mr. Scarola, your position, please, briefly. MR. LINK: Your Honor, can I just clarify for one second? THE COURT: Sure. MR. LINK: And it's because of the Palm Beach Reporting Service, Inc. EFTA00801157 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 nuance of the severed trial. Our notice is he won't be testifying in the severed trial, Mr. Edwards's claims against him, but did not address his claims against Mr. Rothstein. THE COURT: Right. I'm talking now about the trial that's set here that I'm understanding to be only the case brought by Mr. Edwards against Mr. Epstein on the malicious prosecution claim. MR. LINK: That's exactly right, Judge. THE COURT: That's what we will be talking about throughout the process, so that there's no confusion, unless otherwise. All right, Mr. Scarola, your intentions. MR. SCAROLA: Yes, sir, Your Honor. Your Honor referred to this as a stipulation. And I want to make sure that -- THE COURT: I will use the term declaration. MR. SCAROLA: Thank you, sir. I think that that's an important clarification. We understand that a declaration has been made Palm Beach Reporting Service, Inc. EFTA00801158 1 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 Mr. Epstein will neither voluntarily attend nor voluntarily testify. That does not preclude us from choosing to call him, noticing his appearance and choosing to call him, if we want to do that. That is not a decision that has yet been made, although, I want to be sure that it's understood that we have that right and may choose to exercise it. I don't know that we will. The direct response to Mr. Goldberger's question as to whether we are contesting Mr. Epstein's right to assert his Fifth Amendment privilege, we recognize the fact that Mr. Epstein remains in criminal jeopardy. Mr. Epstein does have a Fifth Amendment right as a consequence of remaining in criminal jeopardy. So we do not contest his ability to assert his Fifth Amendment privilege. That may not be appropriate in particular circumstances. But generally, he has a Fifth Amendment right. MR. GOLDBERGER: So with that in mind -- if there's a specific question that Palm Beach Reporting Service, Inc. EFTA00801159 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 was asked -- I think we are up to the January 25th, 2012 deposition -- if there is a specific question that Counsel suggests that Mr. Epstein did not have a right to invoke his Fifth Amendment privilege, I could address that particular question at this time. THE COURT: No. I don't think that Mr. Scarola is questioning that. I think that what his intention is going to be, without him saying it directly -- but if I'm not letting the cat out of the bag -- is that there's definitely going to be the utilization of this deposition testimony before the jury with the time-permitting utilization of the Fifth Amendment and other privileges that are asserted. That is in line with the case law that says if someone is going to maintain their Fifth Amendment privilege, that the Court can wait until jeopardy is no longer attaching and hence that information can be disclosed to the jury and the jury can use it any way they see fit. MR. GOLDBERGER: I think we all Palm Beach Reporting Service, Inc. EFTA00801160 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 understand exactly that's the playing field. There may or may not inference, depending on what comes out of be an adverse on how the Court rules the invocation. I think we are all kind of saying the same thing at this point. He is going to invoke his Fifth Amendment privileges. THE COURT: To be honest with you, when I was reading this, it didn't really give me much to chew on, because it just -- it just relates the objections, and it doesn't suggest to me whether or not you want me to rule on anything having to do with this. It just sets forth everything that's in here. You know, I don't know what you want me to say. We were in a different posture before, because there had been no declaration of Mr. Epstein not going to testify. So, frankly, until I happen to notice it in the press, I had no idea that he had no plans to be here. That was never disclosed to me, and I didn't have any inkling that that was going to happen. So at this stage, we are at a much Palm Beach Reporting Service, Inc. EFTA00801161 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different posture, because, again, my false assumption that he was going to be testifying. At this point, all that's really in front of me is a regurgitation of the selected portions of his deposition and, I believe, interrogatories as well, if I remember correctly -- interrogatories and interrogatory answers that Mr. Scarola, I believe, is going to use and publish to the jury. And there needs to be a ruling as to adverse inference, but I don't have that here in front of me. MR. GOLDBERGER: Yes. If, in fact, someone is saying, Hey, Mr. Epstein, you did not have the right to invoke your Fifth Amendment privilege for this particular question, this interrogatory, this request for admission, then I would be happy to address that. It is what it is right now. He has invoked his Fifth Amendment privileges and the Court is going to have to make rulings as to what effect that is. MR. LINK: Your Honor, if I may, I Palm Beach Reporting Service, Inc. EFTA00801162 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 think if you look at the other motion that I identified, the request -- the motion on the request for admissions where they're moving to compel answers, where the objections to the request to admission is the Fifth Amendment objection -- I think that Your Honor is in a slightly different posture than where we are at today. I think with the Court's instruction to us earlier, everything that is contained in binder three is subject to the Court's review to determine whether the objections -- which include, by the way, Your Honor, relevance and 403 for some of the interrogatories that talk about various activities that we don't think are relevant to the proceeding. But I think these all fit within that category of Your Honor's study time, frankly, other than item three. THE COURT: I mean, I read it. And I was excepting something to be at the end that says we want a ruling on something. But, again, like I said, it was just and I don't mean to use the word regurgitation in a pejorative manner. I'm Palm Beach Reporting Service, Inc. EFTA00801163 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 just saying that that's basically all it was. And it's a notice of filing deposition transcript excerpts by Mr. Scarola -- by Mr. Edwards's and Mr. Scarola's office. MR. SCAROLA: Your Honor, the procedural history is that the issues with regard to assertion of Fifth Amendment privilege were brought up before Your Honor, and Your Honor directed us to identify each of those areas where the Fifth Amendment privilege was asserted with the anticipated opportunity for the Court to rule in advance as to whether these assertions of privilege related to material that Your Honor considered to be relevant to the issues that are being presented before the jury, whether that relevance is outweighed by some prejudicial value, and -- and the extent to which the assertions of privilege will give rise to an adverse inference. And Your Honor has, in fact, ruled repeatedly that not only are specific questions relevant, material and admissible, but that the assertion of the Fifth Palm Beach Reporting Service, Inc. EFTA00801164 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Amendment privilege will give rise to an adverse inference. You directed us to consider a jury instruction that would be given in connection with that assertion. And we have prepared such an instruction and submitted it to the Court. I will be happy to provide Your Honor with another copy of that. But it follows the mandate of the Baxter decision, which basically says you cannot prove an element of your civil claim based solely upon an adverse inference arising from a Fifth Amendment privilege assertion. However, the Fifth Amendment privilege assertion can give rise to an adverse inference that is considered in connection with other evidence presented in order to determine whether that element has been satisfied in the proof of the claim. So that's exactly what our instruction says. I will pull that out and provide it to Your Honor, because it might be helpful to have that in front of you as well. THE COURT: Thank you. I mean, I had a Palm Beach Reporting Service, Inc. EFTA00801165 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 lot of transcripts to read. I didn't see the transcript relating to this particular prior hearing so -- MR. LINK: Your Honor, could I -- THE COURT: I didn't recall exactly how far we got on it. MR. LINK: I believe we actually submitted competing -- MR. GOLDBERGER: I'm not sure of that, quite honestly. I just asked Mr. Scarola. He does not think we submitted -- MR. LINK: In any event, we are not in disagreement, Your Honor. I think we may have had a change to it. But I don't remember, frankly at this point, if we agreed on what the change will be. But I certainly agree that the Court ruled that you were going to give an instruction and -- THE COURT: I did. That, I recall. MR. LINK: -- then you will make that decision. I think what the Court has said is absolutely true. What we are missing at this point is for the Court to review, for example, the interrogatory questions and Palm Beach Reporting Service, Inc. EFTA00801166 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 determine whether our other objections based on relevancy and 403 and other things -- if you sustain those, then the Fifth Amendment privilege doesn't come into play. The Fifth Amendment privilege will only come into play once the Court makes a determination on the depo transcripts that you have indicated how you will do it. I suggest interrogatories and request for admissions follow the same pattern, or we can argue them. But the one motion, Your Honor, is slightly different. But I think everything in that binder that Mr. Scarola sent to you fits within the category of he's not contesting our ability to say Fifth Amendment. It's our other objections that the Court must rule upon. THE COURT: That's fine. So let's -- as long as I'm oriented with what you want, I'm glad to help you. It's just that if you look through item number three, it really doesn't say anything other than refer to -- and outline the different excerpts and the Palm Beach Reporting Service, Inc. EFTA00801167 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 interrogatories as to where the Fifth Amendment and other privileges and other objections were asserted. MR. SCAROLA: Your Honor, there is one area where we do not believe the assertion of the Fifth Amendment privilege is appropriate, and that relates to Mr. Epstein's response to our requests for admissions concerning his filings with the New York State sex offender registration. There clearly is no Fifth Amendment privilege with respect to matters that Mr. Epstein has openly and publicly acknowledged. That is not a proper assertion of privilege. His response with regard to the authenticity of that filing is clearly evasive. He should be compelled to admit that it is authentic or deny it, and we will go to New York and we will take a deposition to establish the authenticity of that document. And he cannot deny having made these admissions to the state of New York. He cannot deny a requests for admission on the basis of Fifth Amendment privilege. Palm Beach Reporting Service, Inc. EFTA00801168 1 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's been waived. THE COURT: Let not get off on tangents. That's number 11. I want to start with number three and where we left off so I can finish the rulings as to the interrogatories and the deposition testimony. We will get to number 11 right after we finish number three. MR. SCAROLA: We are on page 24, then, Your Honor, of the notice of filing, which delineates the specific questions and answers where Fifth Amendment privilege was asserted. This relates to the deposition of January 25, 2012. MR. GOLDBERGER: Your Honor, if I understand the Court's ruling earlier today, you are not going to deal with 403 objections, you're not going to deal with relevance. You only want to deal with -- THE COURT: No. I'm going to deal with everything. MR. GOLDBERGER: Okay, fine. THE COURT: What I mentioned earlier is that, in the generic deposition -- and nothing here is generic -- what I was going Palm Beach Reporting Service, Inc. EFTA00801169 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to say is, in the usual and customary deposition designations and objections, I will do that on my own time, similar to what I do during trial, which is usually when I am confronted with materials, I take those home or I will do that, if I have some time, in the office. And I will rule on those and will announce my rulings to you at a separate hearing. And if I need any argument as to individual questions or objections, I will be glad to entertain it. There may be instances where you will ask me to -- for further argument and I will decline, as I would in a trial setting. But that's what I was talking about, generically. Not this. So let's go back to where we were then. You said the -- we have dealt with the March 17th, 2010 deposition. We are on -- MR. GOLDBERGER: Heading two, the January 25th, 2012 deposition. MR. SCAROLA: The page numbers are in the upper-left-hand corner. THE COURT: Which page is it? MR. SCAROLA: It's page 24 of 36. Palm Beach Reporting Service, Inc. EFTA00801170 3 0 1 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: All right. I found it. Thank you. So we have, then -- we go to -- on page eight; is that correct? MR. GOLDBERGER: Yes, Your Honor. THE COURT: The first one is, quote, Did you, in fact, commit those acts? The preceding questions are, quote, Have you been convicted of a crime? Answer: "Yes." Question: "What was the crime of which you were convicted?" Answer: "Two counts. One is soliciting prostitution and procuring a minor for prostitution." Question: "Did you, in fact, commit these acts?" Mr. Goldberger invokes the Fifth Amendment privilege and Mr. Epstein follows by invoking the same. MR. GOLDBERGER: We continue to invoke our Fifth Amendment privileges, Your Honor. As Mr. Scarola set forth when he was addressing the Court, we are in jeopardy on potential -- Palm Beach Reporting Service, Inc. EFTA00801171 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I'm not questioning that. MR. LINK: The objection was relevance and 403 prejudice to that question. THE COURT: The objection is overruled. Those objections are overruled. MR. GOLDBERGER: Your Honor, however for the sake of when this case is presented to the jury, that same question was asked in the first deposition and the Court ruled on that in our first hearing. THE COURT: I am not going to allow repetition, just so the record is clear. I don't anticipate experienced counsel repeating the same information, even if it was taken in two different depositions. If there were different answers, then it would be a different story. Same invocation, I don't expect repetition. MR. LINK: If Your Honor looks at the next series of questions and answers through the next page, we have the same exact objections, Your Honor, of relevance and 403 prejudicial, if that helps you take a look and rule. MR. GOLDBERGER: And at a prior Palm Beach Reporting Service, Inc. EFTA00801172 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearing, Your Honor sustained the objection based on the fact that it was limited to three prior victims. Your Honor said dealing with the three named victims, you would overrule the objection. But you sustained it on page 109 as of our last hearing. THE COURT: Okay. Now, the first two questions, the objections as to relevancy and prejudice versus probative would be sustained. As to question, quote, Who is the prostitute that you solicited for prostitution with respect to the claim on which you were convicted? And quote, Who is the minor that you solicited for prostitution with respect to the claim in which you pled guilty. Those objections are overruled. However, the invocation of the Fifth Amendment, which is subsumed in the answer, would be permitted. And hence, it would simply be responded to as, quote, I am going invoke my Fifth Amendment right to those questions. Palm Beach Reporting Service, Inc. EFTA00801173 1 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 12, line 16. Question: "Where was it that you solicited" -- strike that. "Where was it that you solicited for prostitution the matter in the matter you pled guilty?" I am reading that verbatim. I don't understand the question. MR. SCAROLA: It's asking for the location of that offense, Your Honor. THE COURT: The objection is sustained for relevance. Next question. "When was it that you solicited the prostitution in the manner in which you pled guilty?" I sustain the objection on relevancy grounds. Question -- the next -- "Have you ever discussed your sex-related arrest or conviction with any reporter or news media representative?" I'm also going to sustain as irrelevant. MR. SCAROLA: May I be heard with regard to that one? Palm Beach Reporting Service, Inc. EFTA00801174 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Sure. Are you going to tell me something to do with the New York Post article? MR. SCAROLA: Yes, sir. I am going to tell you that. And I'm also going to tell you that it is clearly a question reasonably calculated to lead to the discovery of admissible evidence. If he -- and to determine the validity of the Fifth Amendment assertions. If he is making statements to reporters about these matters, we are entitled to find out who it was he spoke to and what he said, and to make a determination as to whether what he said constitutes a waiver of Fifth Amendment privilege. So I suggest to you that it clearly is reasonably calculated to lead to the discovery of admissible evidence. The assertion of the Fifth Amendment right cuts off our ability to do that. We should be able to point that out to the jury. THE COURT: This is not a motion to compel. I am making ruling as what would be Palm Beach Reporting Service, Inc. EFTA00801175 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 admissible at trial. And the nature of that question the Court finds to be irrelevant to publish before the jury. So we move down to -- MR. LINK: Twenty-six of 36, Your Honor. THE COURT: And I believe the next question is, quote, Have you ever discussed your sex-related activities with minors in the state of Florida with any reporter, news media representative? I'm going to make the same objection. Strike that. I am going to make the same ruling on relevancy grounds for the purpose of publishing the question to the jury. Next is page 21, lines 6 through 22 of that deposition. Question: "Were the allegations in the federal complaint on behalf of III. any different than the allegations in the state court case on behalf of Ill.?" The answer is, "I don't recall." Are you objecting to that? MR. LINK: No, Your Honor. Palm Beach Reporting Service, Inc. EFTA00801176 1 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: Next question, "Did you, in fact, engage in any sexual conduct with He begins to answer, but then says he will take the Fifth Amendment. Mr. Scarola. MR. SCAROLA: This is one of the three victims. This is the claim that Jeffrey Epstein alleges was fabricated. This is the claim that he alleges was ginned up. This is the claim that he alleges had no value. So I'm not -- Is it relevance and materiality that the Court is concerned with at this point? Because it's hard for me to imagine how it could be more directly relevant to the falsity of the allegations that Mr. Epstein made against Brad Edwards when he says that these claims were fabricated. THE COURT: All right. Mr. Link. MR. LINK: Yes, sir. Your Honor, I don't want to parse words about the complaint. We looked at it so many times. Mr. Epstein never said these claims were fabricated. Palm Beach Reporting Service, Inc. EFTA00801177 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We have looked at that language together. Mr. Scarola says it at every hearing. He said the claims were used to fabricate settlements by Mr. Rothstein. The statement in the complaint was that the claims were weak as compared to the dollar amount Mr. Rothstein was saying. I think this question is vague. I don't know what kind of sexual conduct we are talking about. This is not III.'s case against Mr. Epstein. This is Mr. Edwards's case against Mr. Epstein. So I don't see how this question is relevant to the jury. I also believe it's prejudicial, and I also believe it's vague and should not come in. MR. SCAROLA: Mr. Link and I have a very different understanding about Mr. Epstein's testimony regarding these claims having been fabricated, and a very different understanding about what the complaint says about these claims having been fabricated. Regardless of whether he says they were fabricated, he clearly says they were ginned up. They had no value. That the value attempted to be asserted was Palm Beach Reporting Service, Inc. EFTA00801178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 grossly aggravated. Whether he engaged in sexual conduct with III., who admittedly was a minor at the time, how many times he engaged in sexual conduct with III., clearly goes to the value of these claims. And he refuses the answer questions with regard to those matters. That is relevant -- directly relevant and material. THE COURT: Well, the issue that I'm looking at more than anything else is one of whether or not the probative value is substantially outweighed by the prejudice. And in looking at 90.403, since we are going to be dealing with it frequently, the rule of evidence states, quote, Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. End quote as to the pertinent portion of the statute. MR. SCAROLA: I'm not sure -- THE COURT: I don't need any further Palm Beach Reporting Service, Inc. EFTA00801179 3 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 argument until I request it be provided, please. MR. SCAROLA: Sorry, Your Honor. THE COURT: I bring us back again -- it's grounds for the Court's ultimate ruling. I have been contemplating this, obviously, for quite some time -- to the time and place relating to the filing of the malicious prosecution claim, and the fact that these claims were continuing to mount the publicity that was being generated against Mr. Epstein was also continuing and relentless. For the record, I am not suggesting that said publicity was disproportionately provided. It simply was a matter of fact. And bringing us back to the time and place analysis that the Court has engaged in on numerous occasions in the past, when the Rothstein firm crumbled and the various governmental agencies were raiding the offices, including the office of Mr. Edwards, that is when Mr. Epstein decided to bring this malicious prosecution claim. Palm Beach Reporting Service, Inc. EFTA00801180 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 His testimony in his deposition was such that he validated his claim that Rothstein and others, including Mr. Edwards -- including III., for that matter, who was one of the defendants in the Epstein malicious prosecution claim -- had sensationalized, had ginned up, had conflated the claims that were pending against him so as to attract millions of dollars in what turned out to be extraordinarily difficult to understand investments -- which should be placed in quotes -- and were the factoring of the cases by Mr. Rothstein and perhaps others, though, I don't know of anything that was proven or alleged against Mr. Edwards in that vein. And that essentially the claims against Epstein relating to the Edwards clients -- in particular E.W., Jane Doe and more particularly III., to whom this question was directed -- were inappropriately inflated and the allegations, as well, made up or conflated in a manner that was somehow prejudicial to Mr. Epstein so as to lead Palm Beach Reporting Service, Inc. EFTA00801181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them to bring this claim for malicious prosecution. So with that backdrop in mind, I'm going to overrule the objection finding that, while there would be a degree of prejudice like all evidence tends to elicit, the prejudice here would not be unfair and would not be in a scenario where the probative value would be substantially outweighed by the danger of unfair prejudice. So Mr. Epstein would have to ability to use his Fifth Amendment or assert his Fifth Amendment right, and hence, he has an opportunity to invoke it. His objection for the reasons stated on the record are overruled. The next question is, "How many times did you engage in sexual conduct with The same ruling implication of Fifth Amendment. Again, I believe that the ruling of the Court today lends some logic to the theory of adverse inference that the Court had already indicated it will give. And that is Palm Beach Reporting Service, Inc. EFTA00801182 /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 that we leave it to the jury to decide whether the Fifth Amendment invocation does impact and influence their decision with the utilization of the instruction. Again, under these peculiar circumstances -- meaning the facts of this case being different than the generic automobile accident or other premises type of liability claim, while, again, this is a very sensitive situation -- the Court recognizes its sensitivity, both as it relates to the victims, to Mr. Epstein, to Mr. Edwards as well. But at the same time, as pointed out in several of the moving papers filed by Mr. Edwards, Mr. Epstein chose this forum. Mr. Epstein chose to proceed in the manner in which he proceeded against Mr. Edwards and against III. We are not here, as I mentioned earlier, to parse out and discuss the rationale for suing Rothstein. But by choosing that forum, he has brought upon himself many of the issues that the Court is engaging in by making these types of Palm Beach Reporting Service, Inc. EFTA00801183 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 allegations against Edwards, particularly at the time and place in which these allegations were made. The Court can't emphasize enough that this Court was there at that time. And I don't want to inject myself as a witness. I am simply stating that because -- again, by happenstance, luck or other faith -- these state cases were -- the majority of the state cases brought, including, I believe, all three of these cases were in front of me at the time of the Rothstein firm debacle and crumbling. And consequently, I saw and was engaged in those cases at the time. So the insight that I have, although not necessarily special, is certainly important in that I can fully comprehend and understand the timing issue more so than perhaps the casual observer. Again, I want to make clear that my overall handling of these cases leads me in part to be -- to the rulings that I have made. So he can assert the Fifth Amendment Palm Beach Reporting Service, Inc. EFTA00801184 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 rights, but the objections are overruled. MR. VITALE: Your Honor, against that backdrop with regard to some of the 403 objections that were being made, I'm wondering if I can make a brief point I thought might assist the Court. THE COURT: Yes, sir. MR. VITALE: Your Honor, in a malicious prosecution claim, the now plaintiff, Mr. Edwards, is required to live and die by the complaint that Mr. Epstein filed. Regarding your statement that we have alleged in our papers and our pleadings that he built this playing field, I think it's important to talk about that just a moment. We talked about III., and I picked up paragraph 46. Quote, The truthfulness of III.'s allegations and testimony in III.'s state civil action has been severely compromised by the need to seek a multi-million dollar payout to help maintain RA's massive fraud. That's at page 21, paragraph 46. Later on page 22, paragraph 46, Mr. Epstein alleges that the actual -- Palm Beach Reporting Service, Inc. EFTA00801185 4 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quote, The actual facts behind her action -- her being III -- would never support such extraordinary damages. So when Mr. Epstein files this complaint in December of 2009, he bears the burden of proof. One of the issues he bears the burden of proof on is his allegation that what happened to III • the actual facts behind her action, would never support the multi-million dollars in damages being sought. So when a 403 objection is then raised, when Mr. Edwards seeks to prove that this allegation, among others, is knowingly false, and the objection being raised by Mr. Edwards is, well, the prejudice outweighs the probative value, is that a concession that Mr. Epstein would not be meeting his burden of proof on these claims? Because I think that would be directly relevant to malice. I struggle to see how you can bring an action, make claims, have it dismissed on the eve of summary judgment, a malicious prosecution claims is filed against you, Palm Beach Reporting Service, Inc. EFTA00801186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then raise a 403 objection on all the allegations that you had the burden to prove in your claim. It would seem to be almost a stipulation of malice that Mr. Epstein had no intent to prove his allegations. THE COURT: And I appreciate your supporting the Court's ruling with the additional information. Again, what I think we have to make clear and distinguish is the relevance of the questioning, vis-a-vis the allegations in Mr. Epstein's malicious prosecution claim, which I have tried to correlate. And you helped in terms of that correlation in bringing out the specific sections of the complaint. And I appreciate that. But again, at the same time, what I'm attempting my best to do is maintain as level a playing field as I possibly can, despite the nature and sensitivity and somewhat pureed allegations and facts that are associated with this case so as to make sure that we are asking relevant questions, but not going so far as to create an Palm Beach Reporting Service, Inc. EFTA00801187 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 unleveled playing field by using salacious and otherwise inappropriate commentary or questioning. And trying to draw that line, while it's a difficult one, is something that I'm endeavoring to do. So I thank you for that. MR. LINK: Your Honor, may I make one comment on that, please? THE COURT: Sure. MR. LINK: I appreciate Mr. Vitale doing that. I think he actually made my point for me, which is this. And the Court has been very clear about this. We are not trying malicious prosecution case. She's not a plaintiff here. And maybe if she was, the allegations, the relevance might outweigh the prejudice. But she's not the plaintiff. It's Mr. Edwards. THE COURT: I understand. Make no mistake, capturing the time of this particular lawsuit filed by Mr. Epstein is critical to this Court's analysis. Capturing the allegations that were filed and supplemented, as far as the Court's ruling is concerned by Mr. Vitale's Palm Beach Reporting Service, Inc. EFTA00801188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 referencing the complaint and the allegations pertaining specifically to III. is critical to this Court's analysis. The fact that this case was brought at this critical time period when Edwards was probably at his weakest, when the claims of these minors could have been compromised by the extraordinary events which took place at that time involving Rothstein and his cohorts, what we have all agreed should have been a blowing up, for lack of a better term, of that Rothstein firm at that particular time, a viable argument can be made by Edwards, and could be made by III .1 as well, that Mr. Epstein pounced on the opportunity to strike at their weakest moment so as to potentially bring them to their knees and compromise their claims for a value that would have been less than the true value of their claims. And that served as his motivation for bringing this action. That could be the argument that's made. And that forms, at least to some degree, the underpinnings of this Court's rulings. I am not going to sit here and be naive Palm Beach Reporting Service, Inc. EFTA00801189 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as to what may or may not have transpired. That would be an abdication of my responsibility. Judges have to be sensitive, in my view, to the underlying circumstances that have been raised by the respective parties. And that sensitivity is engendered by the circumstances that transpired here. And to ignore those circumstances, again, would be an abdication of my responsibility. Next issue, please. MR. SCAROLA: Your Honor, we move to the objections to general interrogatories dated September 16th, 2010 THE COURT: I am with you. MR. SCAROLA: These interrogatories relate to the extent of the criminal activity in which Mr. Epstein was engaged. I will point out to Your Honor that Count 2 of the complaint filed against Mr. Edwards seeks to enjoin all defendants from engaging in any of the conduct that is alleged -- the broad range of conduct that is alleged in the complaint, and asks for an Palm Beach Reporting Service, Inc. EFTA00801190 5 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 injunction against Mr. Edwards from the continuation of the civil actions brought against Epstein until criminal charges have been formally brought against Mr. Edwards and seeks -- THE COURT: Mr. Epstein. MR. SCAROLA: No, against Mr. Edwards. What is requested is an injunction against any further prosecution of the pending civil claims -- all pending civil claims until criminal charges have been brought against Mr. Edwards. THE COURT: Thank you. MR. SCAROLA: Context, as Your Honor has recognized, is extremely important. Motive, as Your Honor has repeatedly recognized, is extremely important. What was Jeffrey Epstein attempting to accomplish by the filing of this complaint? He tells us he was attempting to enjoin the prosecution of the civil actions pending against him. He was clearly attempting to compel settlements of all of the claims that Edwards was prosecuting for sums far less than the amounts being claimed against him. Palm Beach Reporting Service, Inc. EFTA00801191 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 He was reasonably seeking to deter all victims from prosecuting claims against him through the assault on III. and Bradley Edwards. And pending at this time was an effort to set aside the crime -- through the Crime Victims' Rights' Act case, the plea deal that would have and still does expose Jeffrey Epstein to federal prosecution. In addition to that, evidence existed that Jeffrey Epstein had engaged in the same type of criminal conduct in which he had engaged in Palm Beach County, Florida, in various other locations, both in the United States and outside the jurisdiction of the United States. So it is clearly relevant and material to know what Jeffrey Epstein -- the full extent of Jeffrey Epstein's exposure was in making a determination as to why someone would go to the extraordinary lengths that Mr. Epstein went to in filing these claims, which he knew to be false, against Bradley Edwards. He would do it because he hoped to achieved all of those things. And the full extent of his potential Palm Beach Reporting Service, Inc. EFTA00801192 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 criminal exposure, how many children he had abused, over what period of time -- where, when and how -- is clearly relevant and material. THE COURT: Thank you. Mr. Link. MR. LINK: Your Honor, I think we are talking about interrogatories. THE COURT: I would like to start with numbers two and three. MR. LINK: In listening to what Mr. Scarola said, frankly, I'm confused which case we are trying. The criminal case is over. The cases against the three Edwards clients have been settled. They were settled nine years ago -- or eight years ago. We are talking about, as this Court has told us, simply the malicious prosecution action. That's what we're trying. This Court has told Mr. Scarola and myself many times that you're to create a balance of the playing field, that there would be some information about Edwards' three clients that you will let in. But Palm Beach Reporting Service, Inc. EFTA00801193 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 that you have ruled consistently, Your Honor, that information related to non-Edwards clients is not going to come in. THE COURT: To a certain degree, just so the record is clear. In other words, I am still dealing with the issue of the gross amount of settlement paid by Mr. Epstein, as well as the number of claims brought against Mr. Epstein in the aggregate -- MR. LINK: And I apologize. I know that's under this Court's consideration. I didn't mean to eliminate that. But the point of it is this. Mr. Scarola and Mr. Edwards want to try this case to the jury, what about a horrible, rotten person Mr. Epstein was and his conduct with the alleged victims in hopes that that will taint the jury to dislike Mr. Epstein enough that they will award Mr. Edwards, whose career has skyrocketed on the back of Mr. Rothstein, who has admitted he has no damages of an economic type, so that they will get money. And this Court has been very clear to Palm Beach Reporting Service, Inc. EFTA00801194 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 us about keeping this playing field leveled. And for us to stand here and make arguments about the criminal conduct, how much time he spent in jail, anything else that happened outside of whether the -- the key question in this case, Judge, you said it dozen times -- I will tell you, I occasionally step back and say, Gosh, you got it right. You do have it right. Doesn't mean I don't process it. But it really comes down to the time this complaint was filed. And you said it in context. And issue of why it was filed, as Mr. Scarola says, may go to the level of malice. No question about it. But the primary issue in this case has to do with probable cause, and was there sufficient information at time the complaint was filed to give a reasonable person a sufficient basis to bring this suit. And I am with you, Judge. You may not like the timing. You may have felt Mr. Edwards was at his weakest THE COURT: I don't want to be Palm Beach Reporting Service, Inc. EFTA00801195 5 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 misconstrued. Whether I like or dislike the timing is not of consequence to me. What I'm suggesting to you is that it is the responsibility of any court, in my respectful view, to be able to recognize the nuances, and to recognize context, so as to be able to better rule on issues that come before the Court. If the Court is immune to that and simply wants to call balls and strikes, for some judges that may be appropriate. But if you are not willing to delve into the context, then, as I mentioned earlier, I think personally it would be an abdication of my personal responsibility. I can't speak on behalf of other courts. So that's where I wanted to make sure that we are clear. Whether I like or dislike something is of no consequence to me. I am a process guy, as, hopefully, all of you know. I'm interested in the preservation of the process and preservation of appropriate protocol. The result is of no consequence to me. I don't care. Palm Beach Reporting Service, Inc. EFTA00801196 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What I do care about is that we are going to process this case in a manner that's going to be professional; that's going to stick to the issues; that is not going to be sensationalized, unless necessarily required by the nature of the manner in which a defense is brought or a claim is brought; and that everyone is going to be treated respectfully, with dignity, whether it be a victim, whether it be Mr. Epstein, whether it be Mr. Edwards, anyone who comes before the Court, whether it be a witness or otherwise. So that's not going to be changed by virtue of the nature of this case, the public nature of the case, the publicity engendered by the case. It's not going to happen. I don't need any further argument. The objections to numbers two and three are sustained. Number four, "What is your best estimate of the number of times you have witnessed Ghislaine Maxwell engage in sexual activity with minor females?" Palm Beach Reporting Service, Inc. EFTA00801197 1 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 question is also -- the objections to that question are also sustained. I'm sustaining them on relevance grounds. I'm also sustaining that, if there is any relevance that the Court is unable to determine, that a 403 analysis would be engaged so any remote probative value would be materially outweighed -- substantially outweighed by the prejudice. Five. Let's talk about that. Mr. Scarola. MR. SCAROLA: This clearly has to do with economic motive, Your Honor. How much it has cost him is part of his motive for attempting to have all of these actions stayed to deter others from bringing claims against him. The financial jeopardy that he was facing and faced is relevant and material to both motive and malice. THE COURT: Mr. Goldberger. MR. GOLDBERGER: Your Honor, I would raise a Fifth Amendment objection to this question. I don't know whether Counsel is objecting to that. This is clearly -- as background for the Court, Mr. Epstein, when Palm Beach Reporting Service, Inc. EFTA00801198 1 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 case was initiated, was being investigated, not only for the acts that the Court is well aware of, but also for money laundering. And Judge Marra, in part of the Jane Doe 2 case, entered an exhaustive order confirming Mr. Epstein's right to invoke his Fifth Amendment privileges on anything relating to finances or net worth. So I would suggest to the Court that any questions concerning any amount of money that Mr. Epstein has, or any amount of money that Mr. Epstein paid, anything that suggests how much Mr. Epstein has in the bank would come under the purview of the Fifth Amendment based on the money laundering aspect of the government's investigation of him. THE COURT: Well, the allegations in a malicious prosecution claim are not only relating to the captured moment in time when the malicious prosecution claim was brought, but also the continuation of the claim against Mr. Edwards. And the question is not all encompassing. The question speaks Palm Beach Reporting Service, Inc. EFTA00801199 1 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 the, quote, this lawsuit. MR. GOLDBERGER: Anything at all that provides a connection, a step in the process, that would suggest how much Mr. Epstein has -- THE COURT: It is not a question of what Mr. Epstein has. It's what he has incurred. Meaning, what he has either paid or been billed. MR. LINK: Your Honor, may I interrupt and have a moment with Counsel? THE COURT: Yes. But let me just finish with my thought, if I could, please. Getting back to his testimony and his allegation in his malicious prosecution claim, Mr. Epstein states that Rothstein and the litigation team knew or should have known that the three filed cases were weak and had minimal value. His -- and that's just one of the allegations that I picked out. But his ability to afford to prosecute a malicious prosecution claim of this nature would at least have tangential relevance to what I spoke about earlier, i.e., the Palm Beach Reporting Service, Inc. EFTA00801200 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 context of when this case was brought. So there is at least tangential relevance here. And the fact that he could support this type of claim being brought against Edwards, Rothstein and III. at the time, and then continued to bring this case against Edwards I believe, at least, is marginally relevant. And I fail to see, at this point, the probative value being materially outweighed by the unfair prejudice. And I don't see a Fifth Amendment assertion here. His ability to afford and prosecute through his attorneys a malicious prosecution claim does have some relevance. MR. GOLDBERGER: I don't quite see the relevance. MR. LINK: Before we continue, may I have one minute, Judge? Your Honor, do you mind? THE COURT: Sure. MR. LINK: Thank you. Your Honor, may I have a moment on relevance? THE COURT: Off the record. (A discussion was held off the record.) Palm Beach Reporting Service, Inc. EFTA00801201 1 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: Because of this interrogatory question, I think we actually have to look at it. Here is my objection to the question. And the reason -- I will tell you the reason why I wanted to talk to my co-counsel is because part of our damage claim was the amount of fees we were spending in the underlying case related to what we saw as unnecessary litigation conduct, Your Honor, that we tied into the Rothstein Ponzi scheme. THE COURT: I am not saying that you can't bring that out if you wish to. I have no problem in that regard. MR. LINK: I do. THE COURT: I don't want to argue apples and oranges, which is what I'm trying to avoid. And that is, sure, if there's evidence that Mr. Epstein was paying exorbitant sums to his attorneys to somehow defend claims that had to do with either Mr. Edwards or someone from Mr. Edwards's firm, either prior to or at the time of or subsequent to his affiliation with Rothstein, I have no difficulty whatsoever Palm Beach Reporting Service, Inc. EFTA00801202 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 if Mr. Epstein wants to testify or have someone else testify as to what he perceived to be exorbitant or very high sums that he was paying in order to defend himself in those claims. But at the same time, as I said before, that's the apples argument. The oranges argument goes to the heart of the malicious prosecution claim and whether or not it is relevant to the extent that Mr. Epstein had the financial wherewithal, had a cadre of lawyers who were able to represent him infinitely, if you will, to the extent where it would influence Edwards and III. at the very least and potentially any of the litigants who were bringing claims against Mr. Epstein because of the context that we have already discussed at length. MR. LINK: I understand that. And that's why I was pointing out the language here, which, if you remember, the case against Mr. Edwards went away in 2012. This interrogatory asks for every single penny paid from the beginning of time, essentially, through trial. But I Palm Beach Reporting Service, Inc. EFTA00801203 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't see how the fees and costs spent defending the malicious prosecution action by Mr. Edwards is relevant to what the Court just described. That's my objection to it, Judge. THE COURT: I'm going to grant the I'm going to sustain the objection in part and overrule the objection in part. You made a good point, Mr. Link. I am going to follow your suggestion. MR. SCAROLA: Could I have a chance to speak before you do that, sir? THE COURT: If you wish. MR. SCAROLA: And I'm sorry to interrupt the Court. I didn't have a chance to speak to that regard. THE COURT: If you haven't already spoken on it, go ahead. MR. SCAROLA: Thank you, Your Honor. I had not. As Mr. Link correctly points out, paragraph 51 of the complaint claims as damages as a direct and approximate result of the fraudulent and illegal conduct that Mr. Edwards is alleged to have engaged, Palm Beach Reporting Service, Inc. EFTA00801204 6 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Epstein, quote, incurred significant attorney's fees and costs defending the discovery that was not relevant, material and/or calculated to lead to the admissibility of evidence, which was done for the sole purpose of pumping the cases to investors. He also makes claims for attorney's fees and costs under both the RICO claim and the state civil action for criminal practices act, and treble damages for all of those fees that he's alleged to have paid. So what he is paying out is relevant and material with regard to the damage claims that have been made. But in addition to that, you cannot bring a claim in good faith if you don't intend, from the outset, to support that claim by providing relevant and material information. So the fact of the assertion of the Fifth Amendment privilege when he has put those matters at issue is what makes this relevant and material, because it demonstrates that these claims were not Palm Beach Reporting Service, Inc. EFTA00801205 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 brought in good faith. He did not intend to support his damage claim with relevant and material information. He intended, from the outset, to assert his Fifth Amendment privilege and deprive us of the ability to be able to explore relevant and material information. So I have no problem with the late assertion of a Fifth Amendment privilege to this question. I don't challenge that. I accept -- THE COURT: I don't understand it, so maybe I'm missing something. MR. SCAROLA: This is not a motion to compel. THE COURT: I don't understand how a question about what is the total obligation that is incurred to date for both fees and costs, both paid and currently owing in connection with your representation of this lawsuit, triggers a Fifth Amendment privilege assertion. Help me with that. MR. SCAROLA: I don't believe that it does. I think it's an invalid assertion of privilege. Palm Beach Reporting Service, Inc. EFTA00801206 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 THE COURT: But I don't even understand how it could even be remotely connected to a fear that stating the amount of money paid and the ruling was going to be and will be that it will cover a one-year period of time prior to the bringing of this action and up to the 2012 date where the summary judgment motion was abandoned, and only for the underlying three cases dealing with E.W., III. and Jane Doe one year prior to the bringing of the malicious prosecution claim and up to 2012 abdication or abandonment or voluntary dismissal of the underlying claim against Edwards. So that's the ruling of the Court. MR. GOLDBERGER: With that clarification -- THE COURT: Excuse me, Mr. Goldberger. Unless somebody explains to me how the Fifth Amendment -- how criminal prosecution is anticipated or how Mr. Epstein would be exposed to criminal prosecution solely by disclosing the amount -- I'm not asking him to disclose or not requiring him to disclose to whom it was paid. I'm not requiring him Palm Beach Reporting Service, Inc. EFTA00801207 1 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 disclose from where it was paid. I'm not suggesting that he state any net worth issues. I'm not requiring him to set forth his bank account information. None of that. All I'm saying is, under the context that was read by Mr. Scarola relating to the claims that were made in this case, vis-a-vis the underlying amounts that he was apparently required to pay his lawyers to defend him against what would be spurious, unfounded, weak claims in those three cases only -- E.W., III. and Jane Doe -- and at the time -- a year before, I should say, would give us an indication of what the payments were and would not be overly invasive or remote in time. And then up to the time that he took a voluntary on the underlying claims brought against Edwards provides, not only, again, the information that was read by Mr. Scarola as to the underlying reasons for bringing this malicious prosecution claim, but also, as I said -- I think it bears repeating -- his financial wherewithal at the context of when this case was brought, vis-a-vis Palm Beach Reporting Service, Inc. EFTA00801208 CC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Edwards situation at the time, meaning a man without a law firm -- to borrow a paraphrase a movie title and clients that were depending upon Edwards's representation, presumably depending upon Edwards being with a law firm that could finance the cases that were brought on behalf of these three individuals, and that financial wherewithal having a bearing on the relevant evidence that would be brought to support what the plaintiff in the malicious prosecution claim is saying that this was without any probable cause and, in fact, was maliciously brought. MR. SCAROLA: Your Honor, I don't remember being in a position like this before where a court was agreeing to give me information that I had asked for and my telling the court, Thank you, but I don't want it. This isn't a motion to compel. What we have is a motion with regard to the assertion of the Fifth Amendment privilege. If Your Honor turns the page -- THE COURT: I have it here in front of Palm Beach Reporting Service, Inc. EFTA00801209 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me. So you're not looking for the information? MR. SCAROLA: No. THE COURT: All you're saying is that under this situation, the Fifth Amendment privilege would not be applicable. But you're suggesting to me -- I thought I heard earlier that you can envision a scenario where it would be. MR. SCAROLA: I'm not telling you that it's not applicable. I can envision a situation where it would be a link in the chain in a money laundering claim. I can envision that. So the issue before the Court is the same issue that we have been dealing with with regard to all of these other questions. Do we get to tell the jury that, when we asked Mr. Epstein to tell us about his damages that he claimed in his complaint, his response was, "I assert the Fifth Amendment." That's the issue before the Court. Can we read the question? Can we read Palm Beach Reporting Service, Inc. EFTA00801210 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 the assertion of Fifth Amendment privilege? And can we, then, argue an adverse inference from that? This isn't a motion -- I'm sorry we seemed to have gotten off track there. This is not a motion to compel. So we are beyond the point where I want that information. THE COURT: Awesome. MR. GOLDBERGER: Having said that, Your Honor -- MR. LINK: Hang on. THE COURT: All I'm going to say is this. Now that we've gotten to the point -- and I appreciate reining back the analysis here -- I don't find here that it is an appropriate invocation of the Fifth. However, it would be allowed to be read to the jury and that -- it be allowed to be read in the context that the witness took the Fifth as to this question number five. The manner in which the question is phrased, as I said before, I will be willing to whittle it down, as I've indicated, if that was the request. The objection, however, does not include overbreadth. It Palm Beach Reporting Service, Inc. EFTA00801211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is for relevance, burdensome and propounded for harassment and asks for information which is protected by the Fifth Amendment of the United States Constitution. Now, that includes number five. It includes all of the interrogatories before me, two through nine. So if you are withdrawing the Fifth Amendment assertion, then what happens? MR. GOLDBERGER: So the record is clear, as to this question -- question five only -- we do withdraw our invocation of our Fifth Amendment privilege as to question five. MR. SCAROLA: Our position is, too late. Too late. That assertion of Fifth Amendment privilege has been in place in this case for eight years. We are now approaching trial. THE COURT: But you don't want the information, Mr. Scarola. You told me that on the record. So what then is the point, other than to make him look bad, so to speak -- and forgive the lack of legal terminology? Palm Beach Reporting Service, Inc. EFTA00801212 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: The point is this, sir. When you file a complaint, you undertake the obligation to provide all information relevant and material or reasonably calculated to lead to admissible evidence. THE COURT: And I am willing to, in pertinent part, compel him to give you that information. You have refused the information. Now, if the information is of no benefit from an evidentiary standpoint in front of a jury, then what is the purpose of announcing and reading this interrogatory with the invocation of a Fifth Amendment privilege, other than to cast him in a bad light? MR. SCAROLA: Your Honor, I apologize for not having made this clear, but let me try one more time. THE COURT: I understand what you're saying. Part of his allegations -- and I'm only repeating this so I better understand it. MR. SCAROLA: Yes, sir. THE COURT: Part of his allegations in Palm Beach Reporting Service, Inc. EFTA00801213 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his malicious prosecution claim stated that he was paying exorbitant amounts of money in order defend himself from what, in his mind, was overinflated, overexaggerated claims that were being promulgated and propagated by Rothstein and his cohorts, which included Edwards and III., at least in part. MR. SCAROLA: Yes, sir. THE COURT: Okay. Now, my point is, if you are not looking for the substantive information, which you have indicated to me you are no longer interested in, what other benefit is it to your client to read this interrogatory if there's no substantive gain from it, other than to cast him in a bad light? Because, again, we have already determined -- I have already determined that questions relative, for example, to any sexual engagement with III. would be relevant because it goes directly to the heart of some of the allegations made by Mr. Epstein in his malicious prosecution claim pertaining to the weak nature of those claims and the conflating and exaggerating Palm Beach Reporting Service, Inc. EFTA00801214 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 of those claims, which otherwise would have, quote, minimal value, end quote. I got that, I think. MR. SCAROLA: Yes, sir. I think you have. THE COURT: So let's talk about the context of this question and what other benefit would it be other than casting in bad light and triggering yet another adverse inference against Epstein. MR. SCAROLA: A civil action filed for damages may be filed in good faith if you have a reasonable basis to believe that you can prove your claim and if you are willing to participate in the process necessary in order to recover those civil damages. If you enter upon this process knowing that you have no intention of ever providing discovery that is relevant and material to the very damages that you claim, then that goes to whether you ever filed in good faith. You didn't file in good faith because you had no intention of providing information relevant and material to the Palm Beach Reporting Service, Inc. EFTA00801215 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 damages that you claim. That's why the fact that, in 2010, Jeffrey Epstein was refusing to provide information about the damages that he claimed is relevant and material. His changing his mind eight years later when I don't have an opportunity to depose him anymore, when he's telling us he's not going to show up at trial, when he's telling us he doesn't intend to testify, that doesn't change the fact that, when he filed this case, he had no intention of supporting it with discoverable evidence. That's the only point I'm trying to make. And if Your Honor does not believe that to be relevant and material, then I understand that you disagree with the position I have asserted. I just want to make sure that my position is clear. THE COURT: Understood. MR. SCAROLA: Getting that information now is not material. What's material is proving that he had no intention of providing it when he filed this claim. That's what I'm trying to -- that's the Palm Beach Reporting Service, Inc. EFTA00801216 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 point I'm trying to make, sir. MR. LINK: Your Honor, can I have just one minute? THE COURT: Sure. MR. LINK: So if you read the interrogatory, it doesn't ask what are your damages, which is what Mr. Scarola says he's looking for. He actually asked that question in an interrogatory in 2011 and he answered it. THE COURT: Mr. Scarola, show Mr. Link the provision that you read, because if he's like me, I'm not a -- I'm more of a visual learner than I am auditory, so -- MR. LINK: I'm looking at his interrogatory. THE COURT: I believe you were reading a section of his MR. LINK: Where we're seeking attorney's fees and damages. Yes, sir. Let's talk about that for a minute. THE COURT: Let me just take a look and refresh my recollection, please, and I will be with you in a moment. Palm Beach Reporting Service, Inc. EFTA00801217 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 MR. LINK: That's not the -- MR. SCAROLA: This is the addendum clause. This is where he's saying what his damages were. And he asked on top of those damages, for attorney's fees and costs. MR. LINK: Your Honor, I agree, which is what I said to you earlier, which is, we were seeking at the time -- and we filed this December 2009 -- December 9, 2009 -- fees that had been incurred to that date. That was for the damages. And I have said if this interrogatory asked that question -- Mr. Scarola said, Judge, this asked for damages. It doesn't ask for damages. One year later, Judge, he asked about damages in 2011 in an interrogatory, and we answered it. We answered his damage interrogatory. This interrogatory has nothing to do with damages. He can say it says damages all he wants. That's not what it says. And we answered it. He says we wouldn't provide information. We gave him damage information Palm Beach Reporting Service, Inc. EFTA00801218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and answered Mr. Scarola's interrogatory one year later when he propounded it properly and said, What are your damages? That's a proper interrogatory. This interrogatory does not ask that question. So I think if you are on a motion to compel, which we're not, what the Court would do is exactly what you said: I'm going to dice this up a little bit, and I would have then asked for 10 days to answer the way you reframed it. But it is unrelated to the damage interrogatory that Mr. Scarola gave us and we answered. THE COURT: Mr. Scarola has managed to persuade me that the invocation of the Fifth Amendment at the time it was invoked the date I'm giving here, September 16, 2010, nearly eight years ago -- the attempt now to withdraw the invocation would be too little too late. The complaint and its allegations -- which, again, I am trying to steadfastly follow and track as a basis for my ruling -- does reflect a claim for underlying, i.e., Palm Beach Reporting Service, Inc. EFTA00801219 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 fees generated and associated with at least the E.W., III. and Jane Doe cases, and particularly where III. was a named defendant in the underlying claim brought by Mr. Epstein against Rothstein, Edwards and III. that Mr. Epstein brought that into the case. And as such, if he was unable, unwilling or otherwise believed he had a Fifth Amendment privilege, then it's going to be allowed to be published. The remaining objections are overruled. MR. SCAROLA: We are withdrawing number six, Your Honor. You needed not deal with that. The next one is number eight. THE COURT: Thank you. The same ruling would apply. That is, the objections are overruled similar to the reasons that I have already announced on the record pertaining to the deposition questions that were associated with this individual III. The invocation of the Fifth Amendment will be able to be published to the jury. Are you still proceeding with nine? MR. SCAROLA: Yes, sir, without Palm Beach Reporting Service, Inc. EFTA00801220 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 argument. THE COURT: What does that mean? MR. SCAROLA: There's a typographical error. In the retyping, I think the original interrogatory was -- THE COURT: I just didn't understand it. Now I get it. The objection is sustained as to relevancy. Therefore, it would not be able to be read as an invocation of the Fifth Amendment privilege evidence. Let's move on now. MR. SCAROLA: These can probably be dealt with as a group, Your Honor. These are all net worth interrogatories in connection with the punitive damage claim pending against Mr. Epstein. THE COURT: Forgive me for this, but has the punitive damage claim been formally brought as of yet? MR. SCAROLA: Yes, sir. THE COURT: And that's been ordered by the Court pursuant to statute? MR. SCAROLA: Yes, sir. THE COURT: I know I have asked the Palm Beach Reporting Service, Inc. EFTA00801221 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question before. I apologize for asking it again. With that in mind, let's go ahead and proceed. Thank you. Your objection, Mr. Goldberger. MR. GOLDBERGER: As to each and every one of the net worth interrogatories -- it is not an objection. I invoke Mr. Epstein's Fifth Amendment privileges as to those questions. I would once again remind the Court that Mr. Epstein was the subject of a money laundering investigation. MR. SCAROLA: We are not challenging the validity of the assertion of the privilege. MR. GOLDBERGER: Thank you. THE COURT: So it will just be a publication issue? MR. SCAROLA: That's correct. Are we permitted to publish these responses and the invocation of the Fifth Amendment so that the jury may draw reasonable adverse inferences from the refusal to answer? THE COURT: It would only be the assertion of the Fifth, Sixth and Fourteenth Palm Beach Reporting Service, Inc. EFTA00801222 1 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 granted by the United States Constitution. The rest of this information would not be admissible to the jury. In other words, I'm not going to allow the publication of the rationale used by counsel. MR. SCAROLA: It would only be the last sentence, Your Honor. I can cannot provide answers. THE COURT: Is that agreeable to you? MR. GOLDBERGER: Yes, Your Honor. Thank you. THE COURT: Thank you. We move now to responses to request for admissions, dated February 26, 2013. MR. GOLDBERGER: So I would reinvoke, if necessary, our Fifth Amendment privileges to each and every one of the requests for admissions. THE COURT: Before I misconstrue the rationale of why this is being brought before me, Mr. Scarola. MR. SCAROLA: Yes, Your Honor. Again, it is our -- it is our right -- although, no requirement -- it is our right Palm Beach Reporting Service, Inc. EFTA00801223 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 to introduce evidence with regard to the pecuniary circumstances of the defendant in a punitive damage case. These requests for admissions go directly to that issue, and we should be permitted to read them to the jury and to demonstrate that there was a refusal to answer, so that the jury may draw whatever adverse inference that is appropriate. THE COURT: So this -- again, only the last sentence of the objection? MR. SCAROLA: That's correct, sir. THE COURT: And, Mr. Goldberger, you are agreeing to that? MR. GOLDBERGER: Yes. We are continuing to invoke our Fifth Amendment privileges. THE COURT: For the record, there's been no request to deem the requests for admissions admitted. MR. SCAROLA: That is correct, sir. THE COURT: Very well. MR. LINK: Your Honor, so the record is clear, this is a bifurcated trial. The punitive damages phrase is separate from the Palm Beach Reporting Service, Inc. EFTA00801224 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 main trial. THE COURT: I just want to make sure we are all on the same page. MR. LINK: I believe we are, sir. THE COURT: I believe that takes care of this particular item. Thank you all for your participation. Let's look at item number 11, then, to accommodate Mr. Goldberger. It shouldn't take long. Now, this is framed as a motion to compel, dated February 26th of 2018. Mr. Scarola, does it still remain a motion to compel? MR. SCAROLA: I'm sorry, Your Honor. I'm switching files. THE COURT: That's okay. This goes to the sexual offender issues. MR. VITALE: Yes, it does, Your Honor. MR. SCAROLA: The reason why I couldn't find my file is because Mr. Vitale is handling this one. THE COURT: Very well. Mr. Vitale, good morning. Go ahead. MR. VITALE: Your Honor, the motion to Palm Beach Reporting Service, Inc. EFTA00801225 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 compel concerns the request for admissions that were propounded in February of this year. Excuse me one second so I can locate it. Your Honor, the first request for admission request that Mr. Epstein admit that a printout, which was attached to the request for admission of his New York State sex offender registration page, was authentic. The New York State sex offender registration page contains information concerning assets that Mr. Epstein was required to list as part of his registration of status in New York. It includes multiple -- my multiple, I mean dozens of vehicles and homes, and I believe one or two commercial airplanes -- MR. SCAROLA: Private airplanes. MR. VITALE: Private airplanes. I believe one might be a 747. As Your Honor is aware, 1.370 is routinely used by litigants to narrow the issues at trial. 1.370 itself specifically Palm Beach Reporting Service, Inc. EFTA00801226 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 says that a party can use it to require a party to admit the authenticity of a document, as long as that document is attached. Mr. Epstein, in response to that request for admissions, stated, "Epstein cannot admit or deny this request because he has no control over or personal knowledge about the authenticity of the registration attached to Exhibit A to Edwards's request." As Mr. Scarola mentioned earlier, that's impermissibly evasive. To the extent that Mr. Epstein -- THE COURT: Do you have a copy of it? MR. VITALE: Of the request -- THE COURT: Of the registration page. MR. VITALE: I am sure I do, Your Honor. THE COURT: I didn't go to any great lengths to try to locate it, but it wasn't included, unfortunately, as an exhibit, as it mentions in the motion. MR. VITALE: I apologize, Your Honor. I do not have that available with me. It was a printout straight from the website Palm Beach Reporting Service, Inc. EFTA00801227 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 online. THE COURT: It wasn't included in this particular folder that was provided to me by the Link and Rockenbach law firm. I don't know if you supplemented it at all. MR. VITALE: I didn't. I'm sure that was just an oversight. THE COURT: Does anybody else have a copy? MR. LINK: It wasn't attached. You got what we got. THE COURT: For example, I would like to see whether Mr. Epstein signed it. Was it in his handwriting? Was it typed? Does it have to be signed? Does it have to be signed before a notary public? I don't know this. Unfortunately, I don't specialize in criminal law. Some may question whether I specialize in anything. MR. VITALE: The answer to all those questions would be no. It's not handwritten. It's not signed by Mr. Epstein before a notary public. It is information that Mr. Epstein was required to provide as part of his registration status to the New Palm Beach Reporting Service, Inc. EFTA00801228 oc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 York government. And that information is then placed on the website by an employee, I believe, from New York City. Now, admitting authenticity of documentation does not require the party to whom the request for admission is sent to have personal knowledge of the contents. Your Honor, I could send a request for admission and attach a copy of the New York Times from today and ask Mr. Epstein to admit the authenticity of that document. It would not be a proper objection to say he didn't write the New York Times. Of course he did not. Authenticity is simply is it true and correct; is it reasonably understood to be an accurate copy of whatever it is -- whatever is attached. So the answer here, based solely on personal knowledge, having no -- first of all, having no control is inaccurate. The personal knowledge issue is not a proper objection. Now, requests for admissions specifically state that, if you are going to allege -- if you are not going to admit or Palm Beach Reporting Service, Inc. EFTA00801229 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 deny, you just state that you made a reasonable inquiry, and no reasonable inquiry here has been made. More importantly, the statement that Mr. Epstein has no control over the information is not accurate, because it's information that he provided. And that distinguishes the cases that Mr. Epstein relies upon. And the primary case that appear to be -- is a Fifth DCA case called Nationwide Mutual Fire Insurance Company versus Darragh, 95 So.3d 897. And in that case, Your Honor, there was an admission of website information where the user of the website was plugging in assumptions, and the website is spitting out a response based on the assumptions provided. And the Fifth DCA said, Well, because there's no one to authenticate those assumptions or authenticate the document, that's not proper. THE COURT: I didn't read the case. Is it a defamation case? MR. VITALE: I have a printout. I can Palm Beach Reporting Service, Inc. EFTA00801230 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tell you. It doesn't appear to be Your Honor. It was for future potential military retirement benefits. That's part of the plaintiff's economic damage claim. But this case is different. This is not a situation where the printout that Mr. Epstein is being requested to authenticate is a printout containing assumptions that are plugged in and whatever that model spits back out. This is THE COURT: What you're saying is, this is something that Mr. Epstein would have been necessarily involved in the creation. MR. VITALE: Of course. THE COURT: I did find the case, by the way. It's not, quote, information that's been downloaded from government websites concerning expected military retirement benefits that would be prepared by somebody else. MR. VITALE: Correct, Your Honor. Although the information is, obviously inputted into the system by someone -- they took what Mr. Epstein gave them. They put it into the system, then it's displayed on Palm Beach Reporting Service, Inc. EFTA00801231 1 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 New York government's website. So the information that's on that website is either authentic or it's not. Mr. Epstein is able to answer that question. And the response given is not a proper response under 1.370. So that's our position on number one. THE COURT: All right, thank you. MR. LINK: Your Honor, I don't know how we can have this conversation without having the document, frankly, to talk about it. I also believe it's incomplete. They want to attach one page. I think we are both hamstrung in having this conversation. Without you seeing the pages I don't know how you can rule. THE COURT: Well, I would like to have it. I think the nature of, what I presume, looking at it, it's relatively self-evident, as I explained here earlier. Why don't we get to the issue that I think Mr. Goldberger is interested in, and that is the Fifth Amendment and other privileges or assertions that Mr. Epstein may seek to assert as to request number two Palm Beach Reporting Service, Inc. EFTA00801232 2 1 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 says, quote, Information contained in the printout of the New York State sex offender registration page is accurate. MR. GOLDBERGER: So, without having the benefit of the document and recognizing that there are other objections that need to be discussed with the Court about the registration page, I cannot think of anything more that would involve Mr. Epstein's Fifth Amendment privileges than asking him whether he is a sex offender and whether he has pled guilty or has been found guilty of a sex offense in light of this side of courtroom's attempts to -- through other counsel involved in the case to set aside this plea agreement and subject him to prosecution. THE COURT: I do want to see the document. I think that it is difficult for me to rule without seeing the document. MR. VITALE: Your Honor, we can have that printed during the lunch hour. THE COURT: That will be fine. If there's any Fifth Amendment or other privilege issues that need to be addressed, Palm Beach Reporting Service, Inc. EFTA00801233 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we will take them up when you are available, okay? MR. GOLDBERGER: Thank you, Judge. I appreciate you giving me the time this morning and do my other stuff. THE COURT: Always a pleasure to see you, as well as other counsel today. I have indicated to Judge Sasser that I will assist her in the presentation of a sidebar series that she's doing today, so I think that's to begin around now. I am going to excuse myself at this point and we will pick up again -- I prefer to pick up at 1:00, if that's okay with everybody. MR. SCAROLA: I heard Mr. Searcy's presentation yesterday at lunch. You won't be back here by 1. THE COURT: I may have to respectfully excuse myself to accommodate what I perceive to be equally pressing matters to be here, as well as to help to educate our younger or less-experienced attorneys. With that in mind, I am going to go ahead excuse myself. (A discussion was held off the record.) MR. LINK: Can I have one more second Palm Beach Reporting Service, Inc. EFTA00801234 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before you leave the bench? Mr. Scarola and I have conferred. I think there's only one motion left to be heard that we can set for 8:45 dealing with changing of the caption, so as not to burden the Court this afternoon or rushing your lunch. THE COURT: That's okay with you guys? MR. SCAROLA: Yes, sir. MR. LINK: And I think we can also deal with the request to admit once we have the documents. THE COURT: And the only thing that would be left for consideration would be the deposition transcripts. And you promise to get that to me -- MR. LINK: May we have 15 to 20 days to do that? THE COURT: I said 20. MR. LINK: Thank you. THE COURT: Let's go ahead and work on orders so we don't run into the same issues that we run into with other cases, as truncated earlier. MR. LINK: We will take the labor and Palm Beach Reporting Service, Inc. EFTA00801235 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 run them by Counsel. THE COURT: All right. Since you are being paid by the hour, I'm sure Mr. Scarola would appreciate it. - - - (The above proceedings were concluded at 12:04 III.) Palm Beach Reporting Service, Inc. EFTA00801236 1 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 27th day of August 2018. SONJA D. HALL Palm Beach Reporting Service, Inc. EFTA00801237