DS9 Document EFTA00801238

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff, VS. SCOTT ROTHSTEIN, individually, BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS DATE TAKEN: Wednesday, September 6th, 2017 TIME: 8:54 a.m. - 9:09 a.m. PLACE 205 N. Dixie Highway, Room 10C 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 (561) 471-2995 Palm Beach Reporting Service, Inc. EFTA00801238 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 APPEARANCES: For Plaintiff: SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 By JACK SCAROLA, ESQUIRE For Jeffrey Epstein: W. CHESTER BREWER, JR., P.A. 250 S. Australian Avenue, Suite 33401 West Palm Beach, FL 33401 By W. CHESTER BREWER, JR., P.A., ESQUIRE For Defendants: TONJA HADDAD, P.A. 315 S.E. 7th Street, Suite 301 Fort Lauderdale, FL 33301 By TONJA HADDAD COLEMAN, ESQUIRE Palm Beach Reporting Service, Inc. EFTA00801239 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 THE COURT: Mr. Scarola, Ms. Haddad, Mr. Brewer. MR. BREWER: Good Morning, Your Honor. MS. HADDAD: Good morning. THE COURT: I think I have seen it before. Please make sure you send in materials in advance. It was reset, so it might have created a little bit of a problem. MS. HADDAD: Your Honor, this was sent to your office -- I have a copy of the letter right here -- on August 28th. THE COURT: Again, I don't have it here in front of me, but don't worry about it. MR. SCAROLA: It is only a motion to set a hearing, Your Honor. THE COURT: That's fine. Not the end of the world. So this is a motion for summary judgment; is that correct? MR. BREWER: Yes, Your Honor. MS. HADDAD: Yes, Judge. THE COURT: How much time you think we are going to need? MR. BREWER: We anticipate about an Palm Beach Reporting Service, Inc. EFTA00801240 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 hour, Your Honor. THE COURT: Mr. Scarola, any thoughts? MR. SCAROLA: Your Honor, this is a renewed motion for summary judgment. Your Honor may recall a motion for summary judgment was heard before Your Honor. Your Honor granted the motion for summary judgment. There was an appellate review of that ruling and a reversal sending the case back. As a consequence we believe the hearing will not take very long at all, because there are procedural issues that will preclude reraising the arguments that have been raised in this motion. Nonetheless, I think that setting an hour aside is not unreasonable. THE COURT: What is the motion based on? We went through the issue of malicious prosecution and abuse of process. I believe the only remaining claim, then, is a malicious prosecution claim, correct? MS. HADDAD: Yes, Judge. The only remaining claim is malicious prosecution. Palm Beach Reporting Service, Inc. EFTA00801241 5 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And the Court granted the motion solely -- THE COURT: I remember. And the Fourth District was quite kind, perhaps to alleviate some of the appellate's concerns regarding whether or not the law was properly followed. And Judge Warner wrote, what I thought to be a very complimentary opinion regarding the following of the law by the Court. Ultimately that case -- the Fabricant case, which was Judge Blanc's case -- went up on conflict review to the Florida Supreme Court, and they followed the Fourth District Court of Appeal's position. So just for the record, I recognize and remember the entire history, at least to the extent indicated. MS. HADDAD: Thank you, Judge. THE COURT: So what is the gravamen of the motion as we sit here today? MS. HADDAD: The gravamen of the motion, Judge, are the grounds that were not argued at the initial motion for summary judgment, for which we asked for an hour We believe an hour is sufficient. Palm Beach Reporting Service, Inc. EFTA00801242 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: So you are talking about some or all of the six or so prong analysis when malicious prosecution claim is brought? MS. HADDAD: Yes, Judge. The abuse of process claim has been disposed of in our favor, and we are only moving forward to attack the elements of the malicious prosecution claim, you are correct. THE COURT: All right, well, as luck will have it, next Friday is the calendar call for this coming docket. And, of course, we have no idea where we are going to be come next week. So at this stage, I don't have a problem putting you on the September 15th docket. I presume we are going to be having a significant number of motions relating to this case. Is that fair? MS. HADDAD: Very fair, Judge, yes. MR. SCAROLA: I would disagree. But knowing the inventiveness and resources available to the opposition, it would not surprise me that an effort in that regard were made. THE COURT: Mr. Scarola, don't make me Palm Beach Reporting Service, Inc. EFTA00801243 7 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 take out the Kleenex and start wiping my eyes because of the depravation of your client's resources that the firm, that he has wisely retained, is at the controls. MR. SCAROLA: We consider ourselves to be an adequate match for whatever the resources are on the other side. THE COURT: And just let the record show that we have somewhat of a nervous smile on our faces. We're all concerned about what might be transpiring over this weekend and beyond. So I appreciate the courtesies. But I would expect that -- have you filed any motions in limine yet? Where are we there? MS. HADDAD: Your Honor, we have not yet filed motions in limine. Right now we are still preparing. There are some previous -- I don't want to get involved, because we are here on a five-minute UMC -- but there's some previous discovery that's still not yet been complied with. Unfortunately, yesterday I was just Palm Beach Reporting Service, Inc. EFTA00801244 8 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about ready to finalize them, but my office was being evacuated. I live in a flood zone in Broward County. THE COURT: I understand. MS. HADDAD: They will be filed before the 15th. THE COURT: I understand. I am not trying to pressure anybody. What I am trying to do is make sure because I don't think that I am being at all presumptuous here that there is going to be motions in limine brought, probably by both sides, and those have to be tackled, and we are running out of time, to be honest with you, especially with the storm season approaching, what we are staring down right now. So, you know, here we are. We don't have those set as yet. My calendar runs September 25th through December 1st, this one coming up, the September docket. MS. HADDAD: Judge, you specially set us the week of December 5th for trial. THE COURT: I am well aware of that, Ma'am, that's why I'm suggesting why haven't Palm Beach Reporting Service, Inc. EFTA00801245 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 the motions been filed as yet. Seems to me to be somewhat hard to believe that during the pendency of the period of time -- at least from the time the Supreme Court rendered i's decision -- which was when? You remember, approximately? MR. SCAROLA: I don't recall, Your Honor. It has been quite a few months. MR. BREWER: It's been quite a few months, but it hasn't been that long. THE COURT: Well, it's been long enough, is what I'm trying to suggest to you, that there should be motions already filed. MS. HADDAD: Judge, the motions were filed the last three times we were set for trial. The case was stayed, and as such we didn't think it was appropriate to be filling things when the case was stayed. THE COURT: I am not suggesting that, Ma'am. Please don't use that type of tone here. What I am suggesting solely is if they have been filed, then that's fine, then we can find hearing time. Palm Beach Reporting Service, Inc. EFTA00801246 10 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But motions in limine that I believe are going to be necessary to be heard -- and I am not going to suggest what the subject matter is going to be, but I think it is rather obvious -- if it's obvious to me handling 1,350 cases, plus whatever we are getting now from the foreclosure division, then I don't think I am being overly presumptuous. But in any event, as I said, we are running out of time. Friday comes, and we do have a docket call -- which I'm hoping and praying that we will, simply because it will mean that we are not in the grave danger that we may be -- it's going to be, at least to a degree, somewhat late. I don't hear motions in limine during trial, not those that can be contemplated. Certainly, if something comes up that's not been thought about, then perhaps that might be a possibility. But what I'm talking about is basic issues that I foresee being an issue and being in play, potentially. We need to get rulings on these things rather quickly, in my respectful view. Palm Beach Reporting Service, Inc. EFTA00801247 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 MR. SCAROLA: I was going to suggest, Your Honor, that if we are going to be gathered together for a motion for summary judgment, we might have a case management conference at the same time, at which deadlines can be set and hearings can be set. I know that we have a motion to compel answers to punitive damage interrogatories over Fifth Amendment objections that have been raised. That's the one motion that I know we have that we would ask the Court to address. That might be a good way to do it. THE COURT: And I appreciate that. I don't want to suggest anything. But I am just -- again, as a former trial lawyer and a judge now for 18 years, I tend to foresee things that I believe are going to be necessary on some of those larger matters that I am dealing with here. Again, I know it's fits and starts. I recognize that. I appreciate it and respect that. But at the same you have to understand that I am trying to manage a docket. Palm Beach Reporting Service, Inc. EFTA00801248 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 I have set this case for a time certain. And calendar call for this current docket is Friday, next week, a week from today (sic). And -- MR. SCAROLA: I'm sorry. Today? Today is Wednesday. THE COURT: I keep thinking today is Friday. I am presuming today is going to be the last day of the week. Excuse me. My apologies. A week from Friday. MR. SCAROLA: I'm trying to make sure we are on the same page. THE COURT: We are. What I'm trying to point out is the simple fact that we are looking at a time crunch here. And I don't want my back to be up against the wall because I am worried about getting things taken care of when they should have already been taken care of. That's the message that I am leaving you with today. So, what I am thinking about doing is probably setting aside a day, if I have it -- I know I have at least one 10-day Palm Beach Reporting Service, Inc. EFTA00801249 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 medical malpractice case that's set during that docket. And there are a lot of cases that I'm aware of that are lengthy on this coming docket, so I will do the best I can. But what I'm envisioning is perhaps setting something like a day aside -- perhaps on a Friday, if I can manage it -- in mid-November, and that way, hopefully, you will have the benefit of the Court's ruling. Hopefully, we will have the case on track to be tried, and you will know where we are at that point in time from the standpoint of the issues that are going to be teed up. Your thoughts? MR. SCAROLA: That's certainly satisfactory, Your Honor. THE COURT: You envision motions as well? MR. SCAROLA: Your Honor, the only motion that I envision is the one I mentioned to the Court, motion to compel responses to punitive damage interrogatories over the Fifth Amendment objections that have been raised. Palm Beach Reporting Service, Inc. EFTA00801250 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 We believe -- I said interrogatories -- I believe they are both interrogatories and production requests; things like tax returns that aren't protected by Fifth Amendment privilege. THE COURT: What about depositions? Have you taken Mr. Epstein's deposition already in this case? MR. SCAROLA: We have attempted to take Mr. Epstein's deposition on multiple occasions. He is asserting Fifth Amendment. THE COURT: That's what I'm presuming is also going to be an issue as well. MR. SCAROLA: I might mention that Mr. Epstein has filed an affidavit in support of his summary judgment motion, which we believe needs to be stricken as a consequence of his refusal to participate in pretrial discovery by raising privilege objections. So that will be an issue at the summary judgment hearing, whether the Court can consider an affidavit after Mr. Epstein has declined to participate by answering relevant and material questions during discovery. Palm Beach Reporting Service, Inc. EFTA00801251 15 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: That's what I'm talking about. We are going to need time. Again, I don't want this discussion today to suggest that you have to file anything. Again, it's just generic discussion in the sense that when you are dealing with a case, and you are trying to control the docket, and trying to manage the case from my standpoint, I have got to anticipate certain things that are going to be filed. I haven't seen that yet. MS. HADDAD: Your Honor, as you may recall, last time we were here you ordered Mr. Scarola to -- and vice versa -- to provide a witness list. Once we received that, we have been actively trying to take depositions and set depositions of their witness. It's not a situation in which we are not preparing for a trial and gearing up. We may have additional motions based upon what these witnesses say. We just -- unfortunately, Mr. Scarola has been in trial and we have only received limited dates of availability, pursuant to which to take Palm Beach Reporting Service, Inc. EFTA00801252 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 these depositions. So we are actively trying to move the case forward. THE COURT: All right. Well, I will grant the motion. As I said, my thinking is likely that we are going to be setting aside -- try to set aside -- I am just indicating during the calendar MR. SCAROLA: Would you like us to attend that calendar call, sir? THE COURT: Yes. I will fix this. I will have it sent out today. My JA is gone. Hopefully, Judge Rowe's JA will be able to assist us today. - - - (The above proceedings were concluded at 9:09 III.) Palm Beach Reporting Service, Inc. EFTA00801253 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 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 6th day of September 2017. SONJA D. HALL Palm Beach Reporting Service, Inc. EFTA00801254