IN THE CIRCUIT COURT OF THE FIFTEENTH

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA JEFFREY EPSTEIN, ) ) ) Petitioner/Counter-Defendant, ) ) vs. No. 50-2009CA040800XXXXMBAG ) SCOTT ROTHSTEIN, individually, ) and BRADLEY J. EDWARDS, ) individually, ) ) Defendants/Counter-Plaintiff. ) ) West Palm Beach, Florida November 2nd, 2018 10:25 a.m. - 1:06 p.m. Plaintiff/Counter-Defendant Epstein's Motion to Allow Amendment to Exhibit List, et al. The above-styled cause came on for hearing before the Honorable Donald W. Hafele, Presiding Judge, at the Palm Beach County Courthouse, West Palm Beach, Palm Beach County, Florida, on the 2nd day of November, 2018. Palm Beach Reporting Service, Inc. EFTA00804571 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 The Plaintiff/Counter-Defendant: LINK & ROCKENBACH, PA 1555 Palm Beach Lakes Boulevard, Suite 930 West Palm Beach, Florida 33401 By SCOTT J. LINK, ESQUIRE and KARA BERARD ROCKENBACH, ESQUIRE For The Defendant/Counter-Plaintiff: SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Blvd. West Palm Beach, Florida 33409 By JOHN "JACK" SCAROLA, ESQUIRE and DAVID P. VITALE, JR., ESQUIRE Palm Beach Reporting Service, Inc. EFTA00804572 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 THEREUPON, the following proceedings were had. THE COURT: Good morning, everyone. MR. LINK: Good morning, Your Honor. MS. ROCKENBACH: Good morning, Your Honor. MR. SCAROLA: Good morning. THE COURT: Thank you for appearing on relatively short notice and trying to narrow some of the issues that we are dealing with as we prepare for December 4th. I trust that both sides received the notice that I sent out regarding this media company that seeks to film the trial. Just as a precursor to any objections that are going to be filed, if any, I have had this situation -- MR. SCAROLA: Can we be seated, sir? I'm sorry. THE COURT: Sure. I apologize. MR. SCAROLA: No, no, quite all right. I'm getting old. THE COURT: Yeah, that's okay. MR. SCAROLA: Older. THE COURT: What I was going to say is that I had this come up one other time, not with this company but with a company that typically requests this, and I believe Palm Beach Reporting Service, Inc. EFTA00804573 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 requested it for the prior trial. And in that other matter, it was a medical malpractice case where both attorneys or each side came to me and said that they had been receiving competing emails from this company, essentially threatening them that if they didn't order their products then the other side would, and the other side would have a significant advantage at trial under those circumstances. So both sides -- and it was a sensitive issue regarding a child that was the subject of the alleged malpractice, and both the doctor and the child's family did not want the case videotaped. But, I was running up against them, that being the media company, not having an attorney, both sides not wanting it, finding and seeing those competing emails that they said were completely and entirely untrue, that being the lawyers, who were very reputable counsel on both sides. And so I made an initial ruling that because both sides believed that they were not being told the absolute truth, and because this company was not a true media outlet but, in Palm Beach Reporting Service, Inc. EFTA00804574 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 fact, was a for-profit trial service company, I made an initial ruling that I wasn't going to allow it to happen. Well, that ended up in a front-page article about the -- that I had set up some type of a -- it escapes me now -- some type of a confrontation where the first amendment was being implicated, and people who I didn't know were weighing in on my attempt to silence the media, and all the rest of the stuff. So the media company then, I believe, retained counsel and came in and said, okay, we want to do it, and because the Florida rule requires or states that one camera and one camera operator minimal is to be permitted, I did permit it. The "PS" of that story, which was never reported, was three days after the commencement of the five-week trial, they left. Why? Well, you can draw your own conclusions. Mine, I believe is a well-reasoned hypothesis, and that is nobody ordered their stuff. So since then, whenever I have this request, I require the company, if it's going to be done, to pledge to the Court in writing that they will remain for the entire Palm Beach Reporting Service, Inc. EFTA00804575 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 duration of the trial. And if they don't, then they have essentially availed themselves of being sanctioned for fraudulent representation to the Court, because they become a part of the process by rule. The bottom line is there has to be, as I understand it, at least one camera and one camera operator at the court -- or in the courtroom, by rule. It doesn't say which camera operator or which camera or whose camera operator or whose camera, but my understanding is that the rule requires that, if there is a request by the media. Now, again, how that's defined, it just came to me as I was walking out to bring it to your attention and to advise you of my experience in those types of situations. And this company, I believe, is part of the email says that they were going to do this if they were permitted, gavel to gavel, so to speak; from the beginning to the end of the trial. They may have known of my other concern because Ms. Oats, O-A-T-S, is in charge of these requests from court administration. So again, because I thought of it as we were Palm Beach Reporting Service, Inc. EFTA00804576 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 walking out, I wanted to make you aware of it. And, again, I think I put a deadline in the notice to file any objections you may have, and to set it for an 8:45 if there are any objections within the time frame set forth, but we don't need any further discussion on that. I just of the I wanted to share with you, though, some things that we deal with. believe it's a rule of judicial administration that I'm speaking about. I could find it, if necessary, but I believe that we don't need to go further on that. Okay. So we're here today to discuss the proposed additional exhibits. The witness that was the potential cause of concern has been withdrawn for the purposes of the action by Mr. Edwards against Mr. Epstein, so that is moot at this juncture. And we'll launch into the discussion relative to the proposed exhibits. I don't know if -- I know Mr. Scarola was busy this morning and likely trying to prepare for whatever judge today, had a chance hearing he so I don't to discuss had in front of another know how much you've this and whether or not Palm Beach Reporting Service, Inc. EFTA00804577 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there has been any common ground that's been reached as it concerns, one, the procedure that we're going to utilize in terms of this particular exercise or, two, the threshold issue of whether or not any additional exhibits are going to be permitted at all. So, Mr. Link, as the movant, I will let you speak first, then Mr. Scarola, I'll follow up with you. MR. SCAROLA: Your Honor, if I might, there are a few of these exhibits that we are not objecting to, and it may be helpful if I identify those. And when I say "we are not objecting," we are not objecting on the basis that these are late-listed exhibits. THE COURT: I understand. MR. SCAROLA: There may very well be evidentiary objections that we have, but on the submission to the Court -- THE COURT: Okay. Let me get to it because, again, in viewing it last night, I should have tabbed it, but I didn't. But I think I have it. MR. LINK: Your Honor, I have a tabbed version, if that helps you. Palm Beach Reporting Service, Inc. EFTA00804578 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 COURT: I've got it right in front of me. But thank you very much. It may have, if I wasn't able to find it as quickly as I luckily was. Okay. MR. SCAROLA: This is Epstein's supplement to motion to allow amendment to exhibit list. THE COURT: I have it. MR. SCAROLA: And on page 2 of the attachment, the amended exhibit list, at the bottom there are two items in blue. THE COURT: I'm with you; 26 and 27, for the record. MR. SCAROLA: That's correct, 26 and 27, for the record. And those were documents that were obtained by the defense subsequent to the due date for the exhibit list, and we do not object on the basis of late disclosure to those two items. THE COURT: Remind me who is? MR. SCAROLA: Yes. , Your Honor, is one of Mr. Epstein's victims. She has had a prominent public role with respect to accusations against Mr. Epstein, and is the Palm Beach Reporting Service, Inc. EFTA00804579 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 victim of Mr. Epstein, who has alleged that she was transported to various locations around the country and outside the country, and that she was prostituted to third parties by Mr. Epstein. So there are allegations against a number of prominent individuals that were made by Ms. that formed the basis for the issuance of subpoenas or the discussion about the issuance of subpoenas by Mr. Edwards that Mr. Epstein alleged had no basis in good faith and were intended solely to "gin up the claims against Mr. Epstein." THE COURT: Is she now a resident of MR. SCAROLA• THE COURT: Okay. That helped to refresh my recollection. MR. LINK: And Your Honor may recall that, at least as of the last time we visited this issue, Your Honor had indicated that you were going to let Mr. Edwards talk about his three clients, and none of the others unless they made a connection, and she fit within that category. We listed this for a different Palm Beach Reporting Service, Inc. EFTA00804580 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 purpose. But I know we're not doing the evidence today. THE COURT: Right. Okay. All I'm getting to is 26 and 27 is not being objected to based upon late filing. What about 28? MR. SCAROLA: Same with regard to 28, Your Honor. THE COURT: And 29? MR. SCAROLA: 29 appears to be some form of argument. And I haven't seen this comparison, but I assume -- MR. LINK: Your Honor, we withdrew it from our exhibit list that we filed, I think it was last week. THE COURT: Okay. So that's been withdrawn. MR. SCAROLA: Okay. All right. THE COURT: So we can put a mark there. Thank you. MR. LINK: We're looking at the exhibit list, Your Honor, that we submitted back in March or April. I think it was March. We have removed items from this list. THE COURT: Okay. Well, I'm looking at Palm Beach Reporting Service, Inc. EFTA00804581 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 this, this is May 2nd filing. MR. LINK: Yes, sir, that -- we actually pared that down even further. THE COURT: Okay. Do you have that with you? MR. LINK: Yes, sir. THE COURT: All right. Has Mr. Scarola, Mr. Vitale received a copy of that? MR. LINK: Yes, sir. Yes. We filed that as part of our compliance with this Court's pretrial order, which then we discussed yesterday. THE COURT: Okay. Mr. Scarola may still be working off the May 2 filing. MR. SCAROLA: Yeah, that's the one that I was working off of. MR. LINK: I'm sorry, 28 and 29 are the only two that we removed. THE COURT: 28 and 29 are the only two you removed? MR. LINK: Yes, sir. THE COURT: Okay. That's fine. So 28's been withdrawn. But, Mr. Scarola, are you going to seek its admission otherwise? Palm Beach Reporting Service, Inc. EFTA00804582 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 MR. SCAROLA: If they are listing the, the -- THE COURT: Numbers 26 and 27. MR. SCAROLA: If they're listing 26 and 27, then we would probably want to use the transcript; yes, sir. THE COURT: All right. So, what's your thoughts, Mr. Link? MR. LINK: I don't know how he can use an exhibit that we have withdrawn from the list. It's not on his exhibit list. THE COURT: I tend to agree. MR. SCAROLA: Well, the -- THE COURT: And let me explain why, to give you a basis for my, at least, proposed ruling. And that is we're here primarily today to discuss late-filed exhibits. And if the counter-plaintiff, who I'll refer to the best that I can without confusing the names, Mr. Edwards, has not listed a given exhibit, then it's my inclination that what's good for the goose is good for the gander, and that is that I'm not going to simply allow an addition at now this even-later juncture. And I will note for the record, again, as Palm Beach Reporting Service, Inc. EFTA00804583 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 did yesterday, that because the parties were aware of the August order that was -- and I take responsibility -- erroneously sent out in its form, the announcement of the trial was appropriate, but the form of saying it was contrary to specific rules that I had entered earlier relative to the addition of any exhibits or witnesses, as well as any discovery. And, again, that was agreed to by the parties, that they recognized that in August, but chose not to deal with that particular issue until later. So I'm not holding it against either party that it was not brought to my attention earlier. But if we're dealing with late exhibits, again, I am inclined to accept a withdrawal and not accept a late -- at this point now, later filing or later announcement or listing of an exhibit by the other side. Mr. Scarola? MR. SCAROLA: I just want to be sure that Your Honor is focusing on what it is we are talking about here. The specific exhibits. 27 is a notice of filing the transcript of Palm Beach Reporting Service, Inc. EFTA00804584 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 26 is that audio of the interview. And all that we're talking about with regard to 28 is a transcript of the audio that is attached to the notice that was filed. I don't know that that makes any difference to Your THE COURT: I don't know -- yeah, the difference between -- now that I'm Honor -- what's looking at it? I was just giving a global ruling as what I believed to be fair in terms of any late exhibits. But I don't know what the difference is between 27 and 28. Can somebody explain that to me from the Epstein side, please? MR. LINK: Yes, sir. 28 was a transcript that we had the court reporter prepare for us because of some blanks that were in Mr. Scarola's that said inaudible, and we've withdrawn that exhibit, Your Honor. THE COURT: No, 27 -- MR. LINK: I'm sorry. I thought you asked the difference in 27 and 28. 27 was prepared by Mr. Scarola's office. THE COURT: Okay. MR. LINK: 28, because there were portions Palm Beach Reporting Service, Inc. EFTA00804585 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 of the transcript that said "inaudible," we hired a court reporter to listen very carefully, and see if she could fill in those blanks. And so we're withdrawing ours as an exhibit, and Mr. Scarola, it's been on his exhibit list, I think a long time, they've submitted it to the Court. MR. SCAROLA: I think it has been also, yes. MR. LINK: So, that's the -- THE COURT: Okay. So is 28 simply an addition of what Mr. Scarola had on the exhibit list? MR. LINK: It was a separate transcript prepared by a court reporter that we hired, because the transcript that Mr. Scarola submitted -- THE COURT: I now understood the distinction. What I'm trying to get to, though, is 28 part of what was already listed by Mr. Scarola in his exhibit list? MR. LINK: Sort of, yes, because the court reporter was filling in blanks. THE COURT: Okay. So I think that perhaps it's probably going to be helpful if there Palm Beach Reporting Service, Inc. EFTA00804586 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 are -- and if there is an official court reporter who has listened to that audiotape and is qualified to fill in those blanks as indicated. It would be perhaps a completeness issue that could be argued would make that a better transcript than an unofficial transcript. MR. LINK: I think that would be true if we had not withdrawn it from the list, Your Honor. I don't know how an exhibit that we withdrew can be used for completeness by the plaintiff. THE COURT: Okay. But maybe I'm still misunderstanding. I thought you said that that was listed -- MR. LINK: No, sir, 27 is listed on theirs, not 28. THE COURT: All right. MR. SCAROLA: All exhibits listed by the defendant are listed by the plaintiff. THE COURT: Yeah, but that catchall is -- MR. LINK: Now we're going to catchalls, Judge. THE COURT: Yeah. And the catchall was a primary focus of your motion to strike. Palm Beach Reporting Service, Inc. EFTA00804587 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: I remember being verbally beaten by Mr. Scarola. THE COURT: That's okay. As long as it was not listed as an exhibit prior and it's being withdrawn, as far as the Court is concerned, I am going to strike it and/or allow it to be withdrawn, and it will be withdrawn. And so reliance will have to be made with respect to the original tape and the transcript that was provided by whomever it was that was provided. MR. LINK: Essentially, Your Honor, we figured the tape is the best evidence, so that was our thing. THE COURT: All right. I'll go along with that. MR. LINK: Your Honor, I was going to do -- I'm going to do a presentation, but Exhibit 24 was listed because Mr. Berger, last time, was going to be having surgery during trial. If counsel represents he'll be here, neither one of us need his transcript. We can obviously use it as cross, but we don't need to make it an exhibit. THE COURT: Do you expect him to testify Palm Beach Reporting Service, Inc. EFTA00804588 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 live? MR. SCAROLA: I am told by Mr. Berger that he is unavailable the first week, but expects to be available the second week. THE COURT: Okay. Then I'm going to take that as that he will testify live. We'll call him out of turn, if necessary, but the transcript itself as evidence will apparently not be necessary. MR. LINK: Yeah, that was why I listed it, in case he was unavailable. MR. SCAROLA: Your Honor, deposition transcripts don't get introduced into evidence anyway. They are published to the jury. THE COURT: Let me -- they are published and there may be a filing if there's a necessity to have it filed, but... MR. SCAROLA: Yes, Your Honor. THE COURT: It's at least better to understand why it's listed, than not. If it was to caution against its unavailability potentially then that was filed. All right, what's next to be addressed? MR. LINK: Anything else, Mr. Scarola? MR. SCAROLA: Those are the only ones that Palm Beach Reporting Service, Inc. EFTA00804589 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 we're prepared to stipulate to. THE COURT: Any of these other yellow ones that need to be addressed, or... So what I'm understanding is, the rest need to be addressed. Those are the only ones that we had a relative stipulation? MR. SCAROLA: Yes, sir. THE COURT: All right. MR. LINK: May it please the Court. THE COURT: Okay. Go ahead. MR. LINK: The Court's pleased? Always pleased to see us. Fair enough. Your Honor, I just, as a point of clarification, Mr. Scarola handed us a document that discusses the 47 exhibits and it was my understanding that today we were going to be addressing my motion to add exhibits to my exhibit list, not the 47. Because the 47 require an in camera inspection by this Court, as well as argument as to whether if there was a privilege, it was waived by crime-fraud exception, turning them over to somebody else, various other reasons. So I'm here today to focus on my motion THE COURT: Right. All I'm -- Palm Beach Reporting Service, Inc. EFTA00804590 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 MR. LINK: -- which is what this Court said yesterday we would focus on. THE COURT: All I'm prepared to do today are these yellow or blue amendments to the exhibit list. MR. LINK: Yes, sir. THE COURT: Is that what you're talking about? MR. LINK: Yes, sir. That's what you said yesterday, so I just wanted to make sure we were on the same page, because that's the motion -- THE COURT: That's what I'm doing today until the noon hour. MR. LINK: Great. Thank you, Your Honor. MR. SCAROLA: And there is a threshold Binger issue, which my presentation addresses that I provided to opposing counsel but have not yet given to Your Honor. I can give it to Your Honor now, if you'd like. THE COURT: Sure. Thank you. MR. SCAROLA: Thank you, sir. THE COURT: All right. MR. LINK: All right, are you ready, sir? THE COURT: Yes, I am. Palm Beach Reporting Service, Inc. EFTA00804591 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 MR. LINK: Okay. Your Honor, I believe there are two reasons why our motion should be granted. One, I believe that our supplemental exhibit list is in compliance with this Court's order, and the order that I'm talking about, Your Honor -- just left me. Hang on. It was over here. There we go. The order we're talking about is the July 20th, 2017 order. That's the order that set this case in December of last year, and Your Honor moved that trial to March based on our motion for a continuance when my law firm came in and based on -- Your Honor's actual ruling was that there were so many, essentially, pretrial motions that required days to get through that would either shorten or lengthen the trial. And -- Your Honor, may I approach? THE COURT: Sure. MR. LINK: This is a copy of the order, and I believe that what we have done is in compliance with this Court's order. The second basis -- and we're going to walk through the order. The second basis is that, as Mr. Scarola said, using a Binger Palm Beach Reporting Service, Inc. EFTA00804592 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 analysis, if we were not in compliance with the Court's order, these supplemental exhibits should be allowed because there is, in fact, no prejudice to the plaintiff in this case in letting them come in. THE COURT: The actual line of the uniform order is "use of the exhibit or witness may be allowed by the Court for good cause shown or to prevent manifest injustice." And that is as it relates to any exhibits provided after the pretrial conference or the conference wherein the parties are to prepare a pretrial stipulation. MR. LINK: Yes, sir. THE COURT: And, essentially, after the -- the witness lists have been, and exhibit lists have already been disclosed. MR. LINK: That is correct, Your Honor. Except that your order in July 2017 allows the parties to amend certain provisions of it without the Court's permission. One of those provisions, which is in -- is on page 3 under paragraph G, is that the pretrial stipulation allows the parties to supplement. And here, what happened is we -- I'd like Palm Beach Reporting Service, Inc. EFTA00804593 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 to walk the Court through the timeline to see. You entered the order, the parties were complying with it. Okay? You've got exhibit lists, you've got witness lists coming in, and Mr. Scarola files a unilateral pretrial stip, and that unilateral pretrial stip is very important because it shows the difference, Your Honor, in what Mr. Scarola -- May I approach and hand the Court -- THE COURT: Sure. MR. LINK: What Mr. Scarola intended was to follow this Court's order without exception, which would have meant that there could be no additional exhibits. So Mr. Scarola's unilateral pretrial stipulation contains no language that allows the parties to supplement their exhibit list. The pretrial stipulation that Mr. Scarola and I negotiated -- May I approach again, Your Honor? THE COURT: Thank you. MR. LINK: -- you will see is very different. It changes that provision dramatically. And if Your Honor will turn in to the Palm Beach Reporting Service, Inc. EFTA00804594 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 pretrial stip, which is at the beginning on page 12. THE COURT: Okay. MR. LINK: There's a material change to the unilateral pretrial stipulation. The parties agree -- THE COURT: Hold on just a moment. MR. LINK: Yes, sir. THE COURT: It's on exhibit lists, paragraph D? MR. LINK: Yes, sir. THE COURT: All right. MR. LINK: So if you compare the language that we negotiated verse the language in the unilateral, you will see that the parties do not waive their right to amend their exhibit list. That's a substantial negotiated change between counsel for the parties. Your Honor, I know we talked about this a few months ago, and you brought up Chief Judge Melanie May's opinion, and there's also, at the time, Chief Judge Cory Ciklin's opinion, where they both say that where the parties agree in a pretrial stipulation, that should be enforced. It is the most important tool for getting Palm Beach Reporting Service, Inc. EFTA00804595 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 ready for trial. You can waive issues, you set the facts to be determined or not determined, and you can, as your court order permitted back in July, agree to deviate from the exhibit provisions of the standard pretrial order. And we did. And, in fact, we both did. Mr. Edwards, after the date passed for exhibit lists, filed amended exhibit lists. And we didn't object, because that's what we agreed to. We filed amended exhibit lists. They filed a second amended exhibit list. So that the parties, consistent with their negotiated agreement in the pretrial stip, abided by it, both of us, Your Honor, and filed amended exhibit disclosure and witness lists pursuant to the pretrial stipulation. Second, if you take a look in Tab A of the pretrial stipulation, you'll see there's Bradley Edwards' witness list, I'm sorry, exhibit list. If you look at page 15, you will see that Mr. Scarola included ten catchalls. The next exhibit list is mine, that has, I think, nine catchalls. So both sides, in conjunction with our stipulated pretrial, amended exhibit lists, and we both included Palm Beach Reporting Service, Inc. EFTA00804596 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 catchalls. And I know that one of Mr. Scarola's biggest complaints about our exhibit list was that, Oh, my goodness, Mr. Link had catchalls. We both did, Your Honor. Whether that makes it right, I'm not saying. But I'm telling you it's what the parties did consistent with what we negotiated. If you look at, Your Honor, Tab B, which is our exhibit list with our nine catchalls, you'll see on page 22 another sentence incorporated in our exhibit list that says, "Plaintiff/Counter-Defendant reserves his right to supplement this exhibit list." Again, consistent with what we negotiated in the pretrial stipulation. I don't believe that Your Honor has to go to the Binger analysis where the parties, by agreement, agree that you can supplement the exhibit list. There is THE COURT: Isn't this a little different than what you were telling me yesterday I should do? I have to employ the Binger analysis? MR. LINK: You have to employ the Binger Palm Beach Reporting Service, Inc. EFTA00804597 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 analysis, Your Honor, I believe for the 47 exhibits that we're going to get to at some point. Because, those exhibits, once you go through the in camera inspection, I think were -- they could fall within this exhibit list. And maybe you don't have to do Binger, it's possible. But I've always thought of those as different exhibits, frankly. The exhibits that we're talking about now, if the Court finds that our pretrial stipulation does not govern our ability to amend exhibit lists, and we are then dealing with the issue of, okay, if we didn't comply with the Court's order, can we get them in anyway, that's a very simple Binger analysis, that, as this Court well knows, just requires you, mandates that you do the prejudice analysis. I'm suggesting as the first basis, and I will now get to the second basis, that you need not conduct Binger based on the parties' agreement. Now, in talking about Binger -- in talking about Binger, Your Honor, there are three categories of documents that are listed on our Palm Beach Reporting Service, Inc. EFTA00804598 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 exhibit list that this Court struck before the March hearing. And Your Honor's ruling was, essentially, we're starting trial on a Monday, there were -- I can tell you the numbers, because we reduced it greatly. There were 360 different items, 700 different items, we have reduced that greatly on our exhibit list. You've seen the ones, we've cut them out and gone right to the core. So in looking at the Binger analysis, there are three categories. Category number one are emails that are from Brad Edwards and his team at the Rothstein firm, which they voluntarily produced, which are not the 47 on the privileged log, and which they can have no prejudice to because they were written or received by Mr. Edwards. There is no need to redepose Mr. Edwards by Mr. Scarola, because he never did depose him. I deposed him. He has his clients, he can talk to his client about the emails. There is simply nothing that needs to be done as it relates to those emails. So, for example, if Your Honor -- with Palm Beach Reporting Service, Inc. EFTA00804599 30 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 Your Honor's permission we have a book with all of these exhibits, and I'd just like to show you a few examples -- THE COURT: Okay. MR. LINK: -- if I might. May I approach, Judge? THE COURT: Yes. MR. LINK: Thank you, sir. I know I'm loading you with paper, but... THE COURT: I really don't know what you think I'm going to be able to do with these thousands of documents that you're handing me now, but I'll do the best I can. MR. LINK: Yes, sir. I'm going to take you to specific ones, so we can talk about them. THE COURT: I'm just looking for something here. MR. LINK: Is this okay to sit right here? Can you reach it, Judge? THE COURT: Yes, thank you. Okay. Go ahead. MS. ROCKENBACH: May I approach, Your Honor, just to -- MR. LINK: Tab 211. Palm Beach Reporting Service, Inc. EFTA00804600 31 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: Okay. Thank you. MR. LINK: So this is an example of one category of the exhibits that were listed. And this is an email -- THE COURT: What number is this? MR. LINK: Tab 211. THE COURT: I have that, but I'm talking about what numbered exhibit are we talking about corresponds -- MR. LINK: That's it, 211. THE COURT: 211? MR. LINK: Yes, sir. THE COURT: Thank you. I'm sorry. I didn't realize that they correlated. All right, thank you. MR. LINK: Yes, sir. This is an email, and if you will start at the bottom, it's an email from Scott Rothstein to all staff telling them that he's available to come talk to. And you will see at the top there's an email from Mr. Edwards to Russell Adler where he says, "Mr. Edwards, do you want me to go talk to him," meaning Rothstein, "about our Epstein information today, or do you want to also be involved and set up some other time?" So one Palm Beach Reporting Service, Inc. EFTA00804601 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 of the issues in this case is Mr. Rothstein's involvement in the Epstein cases, that's one. Two, under -- see, if I do this right, for my appellate lawyer -- 90.608, Mr. Edwards testified in his deposition, Your Honor, that he spoke to Mr. Rothstein, he believed, on two brief occasions, one in a restaurant in passing where Mr. Rothstein said "Go get them," and then he really had no -- Mr. Rothstein had no involvement in the case, and Mr. Edwards had no involvement with Mr. Rothstein. This exhibit, among others, that we'll get to when we get to the 47, go to credibility of whether that testimony is true and what involvement Mr. Rothstein had. The second category -- sorry, Your Honor -- let Your Honor finish reading. I was going a little quick. THE COURT: No, that's fine. MR. LINK: The second category of exhibits, if you turn to page 27 of the yellow and blue. These are in yellow, Your Honor. THE COURT: Okay. I'm with you. MR. LINK: This category has to do with public records of Mr. Edwards' three clients. Palm Beach Reporting Service, Inc. EFTA00804602 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 One of the issues now in this case, and I want to make sure the Court understands the timing, in November, the end of November, you might remember, we had two days of hearing where this Court made rulings that significantly changed how both sides were going to try the case. And one of the rulings that this Court made was that Mr. Edwards would be able to get on the stand and talk about his three clients and how strong their cases were. The public information that we found, we started gathering after this hearing. We did not look for it before. After this Court's ruling, we did public record searches and found information about the three clients of Mr. Edwards, so that we would be prepared to cross-examine him when he gets on the stand and if he, in fact, says, MR. SCAROLA: Excuse me. May I request Palm Beach Reporting Service, Inc. EFTA00804603 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 that we try to deal with these issues one at a time? Just looking at the volume of materials, it's going to be very difficult for me, and I suggest probably for the Court, as well, to keep track of each of the arguments, and it would be better if we address them in the order in which they're made. THE COURT: All right. Well, let me -- go ahead and finish this. There's only one email thus far that's been identified, I presume to be at issue here today in that chain, but... MR. LINK: Yes. I was providing that simply -- THE COURT: You wanted to move on to this because -- MR. LINK: I want to cover the broad topics. I assume at some point, Your Honor, you may want to go through this book and look at it. I didn't think in an hour and a half we could cover every exhibit, so I want to give you my broad argument and some examples as part of my presentation. THE COURT: All right. MR. LINK: Okay? So if you turn to Tab 56 in the big -- I'm sorry, in the big binder of Palm Beach Reporting Service, Inc. EFTA00804604 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 exhibits -- MR. VITALE: Which tab was that? MR. LINK: 56. THE COURT: All right. Yes, sir. MR. LINK: You'll see this is an FBI investigation or recording of a statement from one of Mr. Edwards' clients. And one of the things that Mr. Edwards, I believe, is going to say -- I mean, honestly, Judge, I don't know what I'll use until he gets on the stand, for purposes of cross-examination. One of the things he said is that Mr. Epstein is responsible for -- these are strong cases because he's responsible for all their anxiety and troubles. And if you look at the third paragraph, she tells the FBI in life was not going well during the time she was providing Epstein with massages. She was buying and taking drugs: Xanax, Lorcets, Percocets. She stayed on pills, explained she wanted to feel numb, Palm Beach Reporting Service, Inc. EFTA00804605 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 There are multiple criminal records for all three of Mr. Edwards' clients. There are multiple criminal records, some of them have done time, some have been in drug rehab. One is an arrest record for one of Mr. Edwards' clients where All of these exhibits, Your Honor, go to the strength that Mr. Edwards wants to get on the stand and tell the jury, that that's why there was not probable cause. These three clients of his cases were strong. You will remember the sentence in the complaint that they focused on, and we had a long discussion about this, because our view is that you are not allowed in a malicious prosecution action to cherry-pick a sentence. Palm Beach Reporting Service, Inc. EFTA00804606 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 You have to look at the time the complaint was filed, what was known at that time. The litigation privilege covers every sentence in the complaint, otherwise, in every case we would be flyspecking allegations to find the one we couldn't prove to bring a malicious prosecution action. But the ruling this Court made, based on this sentence that Mr. Scarola showed you, which was that the Rothstein and litigation team should have known that their three filed cases were weak and had minimal value. Your Honor ruled, at the end of November, that Mr. Edwards could get on the stand and explain that the cases were not weak, they were strong. So this information that we have found and have asked to add to the exhibit list goes directly to the issue they injected into this litigation, and this Court said they could testify to, and because it's in the public records under Binger, it can't cause prejudice. THE COURT: Well, how much is in the public record? MR. LINK: A lot. THE COURT: For example, this FBI Palm Beach Reporting Service, Inc. EFTA00804607 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 investigation, would -- I don't know if it's in the public record because of the redactions here, and... MR. LINK: The arrest record -- THE COURT: For example -- MR. LINK: Yeah, the arrest records that I'm talking about, I'll show you are in the public record. And we can look at those. If you turn to tab, for example, 446 in the big book... THE COURT: Okay. MR. LINK: And you look, flip through a few pages, a few of those exhibits. MR. SCAROLA: I'm sorry, which tab, Counsel? MR. LINK: 446. MR. SCAROLA: Thank you. MR. LINK: And you look at the next few exhibits. THE COURT: These are photographs? MR. LINK: Yes, sir. The photographs, they're on the Internet, of two of Mr. Edwards' clients. THE COURT: Okay. The photographs of these young women in bikinis, T-shirts -- Palm Beach Reporting Service, Inc. EFTA00804608 39 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: Shirtless. THE COURT: Well, shirtless, but with -- MR. LINK: With coverup, yes, sir. THE COURT: -- something covering up their private areas. Okay. MR. LINK: If you turn to Tab 462, you'll find the public arrest record that I was describing of one of Mr. Edwards' clients THE COURT: I presume this is when this person was an adult. MR. LINK: Well, this was in 1988, this one, in particular. There are arrest records in here, and incident reports, from when some of THE COURT: Okay. Well, let's -- MR. LINK: So this is the one -- THE COURT: Let's not skip around. And I understand that you're trying your best to use the time in an efficient manner, but as I said, I don't know who this -- well, I guess I do Palm Beach Reporting Service, Inc. EFTA00804609 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 know, this is it's given as the last MR. LINK: This is for the way we refer to it. But you'll see her names as out in the public record. THE COURT: All right. And it's is the date of birth, the arrest -- MR. LINK: THE COURT: Okay. The date of birth is ■ and I thought I heard it was in is when -- MR. LINK: I think your math is right. MR. LINK: I believe your math is right. THE COURT: Okay. MR. LINK: And this is the paragraph I wanted to show the Court that I was describing Palm Beach Reporting Service, Inc. EFTA00804610 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So the public, the point of these exhibits in category two go right to this allegation and right to this Court's ruling on November 29th, that Mr. Edwards can get on the stand and talk about his three clients and why their cases for alleged sexual molestation were so strong. So that's category two. And, Your Honor, I know we only have until noon. I will be glad to go through every exhibit, or Your Honor can take the book and go through every exhibit. And you're right, I'm trying to get as much information before the Court as I can. The third, the third category of documents -- and, Your Honor, you'll see there are dozens, by the way, of the incident, police reports, going all the way back to when they were juveniles. The third category of documents relate to Mr. Edwards' claim for damages. Mr. Edwards has made a claim that as a result of his being named in the lawsuit, Epstein versus Rothstein, Palm Beach Reporting Service, Inc. EFTA00804611 /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 he has suffered emotional distress, anxiety, every single day of his life since the day it happened. I took his deposition, he said every day, every day I have this incredible anxiety and stress and emotional distraught... THE COURT: Because Epstein brought -- MR. LINK: Because Epstein brought this claim in 2009. '8. '9. MS. ROCKENBACH: '9. MR. LINK: '9, thank you. 2009. So I took his deposition, as this Court allowed, at the end of 2017, eight years later. And he testified every single day since 2009 when he was named in the suit, he has been suffering this traumatic anxiety, emotional distress, et cetera. So, we have exhibits in here that show how successful Mr. Edwards has been as a result of the Epstein cases. His jury verdicts, he admitted that he made substantially more in income after being sued by Epstein than before. He publicizes, teaches, holds seminars based on the Epstein case. THE COURT: Are any of these yellowed in Palm Beach Reporting Service, Inc. EFTA00804612 43 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 your list? MR. LINK: Yes, sir, they are. THE COURT: Tell me what pages you're speaking about? MR. LINK: Yes, sir. They are at the beginning, and they are the page one second; 367 and 368, it's on page 22. THE COURT: Okay. MR. SCAROLA: May I raise a procedural question, Your Honor? THE COURT: Sure. MR. SCAROLA: I understand that we have until noon today, is that correct? THE COURT: Right. MR. SCAROLA: And we started at approximately 10:15. Mr. Link has been going for an hour, that would mean I have 45 minutes. THE COURT: All right. I'll give you an hour, whatever time he takes. I can adjust my lunch hour. MR. SCAROLA: Thank you, sir. I just thought it would be helpful to set some parameters. THE COURT: There's never been a time, that I am aware, that I have ever given less Palm Beach Reporting Service, Inc. EFTA00804613 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 time to one side than I did the other. MR. SCAROLA: I certainly understand, and that's in conformity with my recollection. Thank you. MR. LINK: Thank you, Your Honor. THE COURT: 367 and 368. I did -- and those are just identified as Edwards -- MR. LINK: These are from -- they're from their website, you know, where lawyers are touting their success and what they do. THE COURT: Right. Edwards Pottinger website printout Brad Edwards, Edwards Pottinger website printout reaching jury verdict. MR. LINK: Yes, sir. So, when you look at Binger, I've explained the relevance to the case. When you look at Binger, it's hard to imagine there could be a prejudice using material that they published on their website. So it's the last group that I would like to point out to the Court, and then I will wrap it up. THE COURT: What we haven't covered is 332 to 337, 315, 292 and 293. 282, 275, 254, 230 and 231. 205, 210, 211. Palm Beach Reporting Service, Inc. EFTA00804614 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 MR. LINK: Right. THE COURT: 177 and 178. 129 and 132. 103, and several others before that. MR. LINK: Yes, sir. If you look, Your Honor, at page 18 -- THE COURT: I am there. MR. LINK: -- 332 through 337, these are exhibits. If you turn, for example, to 335 in the big book, these are exhibits of security guards that Mr. Epstein hired during the pendency of the litigation because of a concern he had that he was being followed or watched. And as it turns out, you'll see at 335, that the Rothstein firm -- I'm sorry, this is in March of 2010, that the Farmer, Jaffe, Edwards firm hired investigators to go to his house and they were able to identify Richard Fandrey and Michael Fisten. Michael Fisten was an investigator at the Rothstein firm that went with Mr. Edwards to the Farmer Jaffe firm. It says Mr. Fandrey's related to the Gambino family, former bodyguard of Scott Rothstein. There are multiple incident reports and complaints to the Palm Beach police about the Palm Beach Reporting Service, Inc. EFTA00804615 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 investigative tactics that were going on. And one of, obviously, the issues in the case is going to be about how Mr. Edwards was prosecuting the case and what he was doing. Again, this isn't going to be anything that could be prejudicial to Mr. Edwards because they're the ones who used their investigators to do the work. In summary, Your Honor, and I know I haven't covered every exhibit, because it would take too long. And I don't want to use the entire time. But I do want to share this with the Court, so that you're aware as you consider this issue. Beginning in February, in February of 2018, as we were discovering this information and these documents, we began a rolling production. We did not wait. So one of the things in Binger that's important is gamesmanship. There was no gamesmanship. We weren't gathering documents and waiting until the week before trial to say, Here are the exhibits, and holding them back. You will see that we made a rolling production on February 2nd. February 2nd we Palm Beach Reporting Service, Inc. EFTA00804616 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 produced 360 items with the production. February 16th, Your Honor, we made a second rolling production, and we produced ten items with that production. On March 2nd, we made another rolling production. So we were producing information and documents to Mr. Edwards' lawyers during the process and during the time that we were finding them. We did not sit on them, we did not hold them back, we did not engage in gamesmanship. We did not take exhibits and documents we intended to use and had it in our files, sit back and wait. This Court knows that's not the way Ms. Rockenbach and I practice, it's not the way we did it here. And we made sure that we produced, on a rolling basis, the documents, so as not to have them hit their desk two days before trial. I believe, Your Honor, that we are in compliance with the Court's order pursuant to the pretrial stipulation that allowed both counsel, and both counsel took advantage of it, to amend their exhibit list. Mr. Scarola did Palm Beach Reporting Service, Inc. EFTA00804617 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it twice, we did it, as well. Secondly, if the -- this Court finds that we were not in compliance with the July 2017 order, then all of these exhibits should be permitted to be added to the exhibit list because there can be no Binger prejudice. And if there's any Binger prejudice and they need additional time, there's -- they've had these exhibits and this motion since May of 2018 and we believe Your Honor should let the exhibits in. Thank you. THE COURT: Thank you. Ms. Court Reporter, do you have the time we started the hearing? THE COURT REPORTER: Yes, Judge. 10:25. THE COURT: Thank you. So that's right about at an hour when we started the hearing. I had some introductory comments that I made, so you can go ahead and proceed, Mr. Scarola, and let's see how we do. MR. SCAROLA: Thank you very much, Your Honor. THE COURT: All right. And, again, just so that the record's clear, today we're only Palm Beach Reporting Service, Inc. EFTA00804618 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 dealing with the issue vel non of the late introduction of the exhibits as alleged by Edwards' counsel. We're not dealing with anything having to do with the admissibility whatsoever. I want to make that clear today. Mr. Scarola? MR. SCAROLA: Thank you very much, Your Honor. Your Honor, the first argument made by opposing counsel was that we have somehow stipulated to an unlimited, unrestrained amendment to exhibit lists as a consequence of the pretrial stipulation that was ordered in this case. That pretrial stipulation says that the parties reserve their right to amend. The only right to amend is the right that is defined by Your Honor's pretrial order. And that right is that a party desiring to use an exhibit or a witness discovered after counsel have conferred pursuant to paragraph D shall immediately furnish the Court and other counsel with a description of the exhibit or the witness's name and address, and the expected subject matter of the witness's testimony together with the reason for the late discovery Palm Beach Reporting Service, Inc. EFTA00804619 50 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 the exhibit or witness list. Use of the exhibit or witness may be allowed by the Court for good cause shown or to prevent manifest injustice. We did not hear one word about when these exhibits were discovered, when they were discoverable, or why they were not listed sooner. And while opposing counsel repeatedly refers to what he and his law firm did, he has, in this hearing, as in other hearings, attempted to separate himself out from the conduct of prior counsel in this litigation, which has gone on now for close to a decade. While Mr. Link says "we" started looking at the background with respect to Mr. Edwards' clients after the Court made a specific ruling that Brad Edwards was going to be allowed to talk about these clients, and I have two things to say about this, the documents that Mr. Link is attempting to add are documents that were developed in the course of the discovery by Mr. Epstein while those individuals' claims were pending against Mr. Epstein. Before the malicious prosecution case was Palm Beach Reporting Service, Inc. EFTA00804620 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 ever filed, this billionaire conducted an extraordinary investigation into the backgrounds of these young women/children to try to uncover any and every dirt that he possibly could in order to attack their credibility, in order to attack the damages that they alleged -- they were alleged to have sustained, and in order to attack the claims that were being made against him in any way possible. THE COURT: Well, let me tell you what my concern is, and I'll let Mr. Link speak to this later as one of the issues that has apparently come up with this. Is while relevance obviously is something to deal with when the exhibit is being proffered in or outside the presence of the jury, when it comes to these or some of these exhibits, especially as they deal with these young women, and when I use that term, it's not to be confused with their age, it's only as a matter of trying to put a label on them now. And so for that reason, it's more of a convenience issue than it is a description. But, when we're talking about things that Palm Beach Reporting Service, Inc. EFTA00804621 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 transpired years later, and what I mean by that is Mr. Rothstein -- strike that. Mr. Epstein's claim is brought in 2009, and the, there are arrests, whatever there may have been, photographs that were taken years after that. My initial concern is what does this have to do with Mr. Epstein's bringing of the case in 2009? And what does that have to do with then his voluntary dismissal of his claim shortly thereafter, and Mr. Edwards' claim that we're trying here pertaining to malicious prosecution. That's where I'm a bit confused. MR. SCAROLA: Your Honor, there are -- there are a lot of arguments that can be made about the relevance and materiality of a lot of these documents. But as Your Honor indicated at the beginning of this hearing, we're not there yet. We're not talking about whether they are relevant and material, whether they are hearsay, whether they're secondhand knowledge, whether you can attempt to impeach a witness with anything other than the questions, have you ever been convicted of a crime? If so, how many times? There are a lot of Palm Beach Reporting Service, Inc. EFTA00804622 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 -- THE COURT: A felony or a crime. MR. SCAROLA: Involving moral turpitude. THE COURT: Right. That involves moral turpitude. MR. SCAROLA: Yes, sir. So there are a lot of substantive objections that we would have to a great deal of this material if it were properly listed and could even be considered as a potential exhibit. But right now we're talking about whether we even get into those things. And, one of the reasons why these exhibits should not be considered is because getting into those things alone with regard to the volume of exhibits that are attempted to be listed will inevitably preclude us from going to trial on December 4, no doubt about that at all. There are motions in limine that would need to be filed, there are witnesses that would need to be deposed, there are all sorts of objections that are substantive that would need to be dealt with in advance of trial. There are authenticity questions. There are a Palm Beach Reporting Service, Inc. EFTA00804623 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 lot of issues. But right now I'm attempting to do what I think the Court has asked us to do, and that is to focus on whether we ever reach those issues. So, that's why I deal first with the argument that we've stipulated that all of these are properly listed. That's absolutely not correct. And the second argument that is made is that if there was any compliance with the Court's order, then under Binger you must admit these documents because there is no prejudice. I handed Your Honor an analysis of Binger, and it is a case which I know Your Honor is very familiar with, you have commented on it not only in this case, but in others on many occasions. And while Binger is attempted to be categorized as a case that held that in the absence of prejudice, late-disclosed witnesses and exhibits must be admitted, that is not the holding in Binger. That is absolutely not what Binger teaches. Binger teaches that prejudice is one of multiple considerations. And I'll get back to talking about that. But before I do, I want to Palm Beach Reporting Service, Inc. EFTA00804624 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 talk briefly about the three categories of documents which, as acknowledged by Mr. Link, have already been, in earlier rulings, excluded by Your Honor. The first of those categories is a vast number of emails that were culled from production that consisted of 27,500 and -- THE COURT: 42. MR. VITALE: 42. MR. SCAROLA: Thank you both. --27,542 documents. Now, those documents, to the extent that they were discoverable, and it has been represented that these are all discoverable documents out of those 27,000-plus documents. To the extent they were discoverable, those documents were turned over in late 2010 or early 2011. The defense, not Mr. Link, but Mr. Epstein's privately retained counsel, all of them, and there have been many, they have had access to those documents, they've been in their possession for seven years. There is no way that they can satisfy that portion of the Court's order that talks about a party desiring to use an exhibit or witness discovered after Palm Beach Reporting Service, Inc. EFTA00804625 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 counsel have conferred pursuant to paragraph D, which requires the preparation of exhibit lists. These aren't documents that were discovered after the exhibit lists were prepared. These are documents that the defense has had for seven years. Now, what they have done is out of those 27,000 documents, they've cherry-picked whatever number it is that are included here. And what that means -- MR. LINK: Your Honor, I'm sorry for interrupting. I just want the record to be clear. Those emails did not come from that disk. Those are not emails, Mr. Scarola, from the -- you keep saying the 27,500. Those were not from that disk, Your Honor. MR. SCAROLA: I'm not saying MR. LINK: Just so the Court is clear. MR. SCAROLA: I'm not saying they were from the disk. These are documents that were produced that originated on the disk. The only way these emails -- the only way these emails are discovered is because a subpoena is issued to the bankruptcy trustee, who was the Palm Beach Reporting Service, Inc. EFTA00804626 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 custodian of RRA's email servers. THE COURT: By the way, where are these 47 emails listed in your exhibit list? MR. LINK: Your Honor, because you sealed them, we did not want to reference them in the exhibit list. We did a notation that we would add those once Your Honor did what you said you were going to do, which was the in camera inspection. Because you sealed them and haven't ruled whether they're privileged or not, we did not want to list them. THE COURT: I don't remember agreeing to an in camera inspection at this point. MR. LINK: No, I apologize. We've asked for one, the Court hasn't conducted one. But you had us seal those exhibits, so I didn't want, since you ordered us to seal them, to then list them. THE COURT: Okay. Well, it's really important to be careful with your speech, because, again, and I don't mean to continue to rehash this, but it's important that at each stage of the proceeding anyone who reviews this record understands that we're working with somewhere in the neighborhood of 1,600 files Palm Beach Reporting Service, Inc. EFTA00804627 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 per division, and it's very, very difficult for me, where I'm dealing with many, many complex cases, including this one, from the standpoint of complexity, more so due to age and length and number of exhibits and number of issues that have had to be addressed, that I can't remember everything. And I don't think it would be fair for anybody to think that anyone could remember anything under these circumstances, where I'm working alone. So, and when I say "alone," I don't have, as I've mentioned many times, nor do any of us in this division have a dedicated law clerk or staff attorney. We have a pool who work very hard, but it is insufficient to accomplish what we need to do on a daily basis. But irrespective of that, I'm here wading through literally thousands of pieces of paper on my desk, at the bench at the current time, and trying to look through these. So, again, I just would remind both sides to always be very, very circumspect when making representations, because it makes me then have to refocus my attention on something that takes me off of what I've been thinking about; i.e., Palm Beach Reporting Service, Inc. EFTA00804628 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 did I or did I not agree to do an in camera inspection of emails that I have no recollection of agreeing to. But, again, I'm not being critical in any disrespectful way, so just to remind you of the burden on this Court, as well as the others here in the 15th Judicial Circuit Civil division. And, again, there's nothing we can do about it, we just have to plow through it and do the best we can. So, if 47 exhibits aren't listed here, I don't think really we should focus on those today. I'll be more than happy to do it at another time. MR. SCAROLA: I wasn't intending to focus on those, Your Honor, and I'm sorry if my language is imprecise, but what I am trying to point out is that these emails are part of the emails that originated on the Rothstein, Rosenfeldt, Adler servers. They were, that electronic data, was transferred to compact disks. The compact disks were used to print out emails, including those that Mr. Link is now listing and attempting to use. When those emails were printed out in hard Palm Beach Reporting Service, Inc. EFTA00804629 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 copy, they were delivered to -- they were delivered to Brad Edwards to prepare a privilege log. Some of the documents were handed over at that point. They were divided into three categories, actually: Irrelevant documents, documents produced for attorneys' eyes only, and then privileged documents that were not produced. But documents were delivered to Mr. Epstein's counsel, Fowler White, during that period of time. And -- THE COURT: You're talking about irrespective of what was on the disk? MR. SCAROLA: Well, when you say "irrespective"... THE COURT: Irrespective, meaning they were separately sent without consideration of what may or may not have been on that particular disk. MR. SCAROLA: Well, they originated on the disk. That's where all the emails were. THE COURT: I understand what you're saying. But what I think I -- what I think I'm trying to say is that the production by Palm Beach Reporting Service, Inc. EFTA00804630 61 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. Edwards to Epstein may have come from the disk, if you will? MR. SCAROLA: Yes. THE COURT: But were not produced by way of a disk. That disk -- MR. SCAROLA: They were produced in hard copy. THE COURT: Right. That disk was retrieved in some other fashion that we've talked about, and that was the choice that was made to have Fowler White do what they were -- MR. SCAROLA: Yes. And that choice is the subject of the 47 documents that we'll talk about later. THE COURT: Okay. MR. SCAROLA: My only point here is that these documents, the email that is being referenced, including, in particular, the one or the two that are a part of Exhibit Number 211, that email has been in Epstein's possession for seven years. He's had it for seven years. He could have listed it anytime that an exhibit list was required to be disclosed. This was not newly discovered by any means at all. Palm Beach Reporting Service, Inc. EFTA00804631 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 And there is no justification for not having included it on an exhibit list earlier, with one exception, and that is new counsel decided on a new strategy and decided that they wanted to try to use this email after all of the applicable deadlines were passed. Now, let's just take this one document as an example -- THE COURT: Before we do that, how do you interpret that paragraph D of the joint pretrial stipulation that was alluded to by the Court, and by Mr. Link, to some degree, and the language that says "The parties do not waive their right to amend their exhibit lists and to identify additional objections for those exhibits that have not yet been disclosed and/or provided to correspond with the parties' respective exhibit lists." MR. SCAROLA: That's where I tried to start with my comments to the Court, Your Honor. All that says is we are preserving the rights to amend that are defined in the Court's pretrial order. That's all that it says. THE COURT: All right. MR. SCAROLA: I can't imagine any Palm Beach Reporting Service, Inc. EFTA00804632 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 competent trial lawyer, and I like to think that I at least have a minimum level of competence, who is going to say, You can add anything you want to, anytime you want to, and I waive any right I have to object. THE COURT: Well, I would hope so. MR. SCAROLA: I would hope so, too. So it does make sense to say, the Court has defined the circumstances under which we have a right to amend, and we're not waiving the right to amend that's defined in the Court's pretrial order. That's all that that was intended to say. That's all it reasonably could say. So returning back to this exhibit, as an example, because it's the example that opposing counsel chose to focus on. THE COURT: Talking about Number -- MR. SCAROLA: This is 211. THE COURT: -- 211. Okay. MR. SCAROLA: Number 211. So I gather from the argument that's made is that they want to try to use this exhibit to -- THE COURT: Unfortunately -- is 211 one of the emails that were not included because of a Palm Beach Reporting Service, Inc. EFTA00804633 64 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 potential in camera inspection? MR. LINK: No, sir. MR. SCAROLA: No. None of these are. MR. LINK: None of these are part of the 47. It's in the big book, Your Honor. THE COURT: Okay. I have it. MR. SCAROLA: Okay. THE COURT: That was the one with Mr. Rothstein, the eight kids? MR. LINK: That's the one, sir. MR. SCAROLA: Yes. This is Brad Edwards writing to Russ Adler -- THE COURT: I see, the first one is Mr. Edwards writing to Mr. Adler, correct? MR. SCAROLA: Right. THE COURT: "Well, do you want me to talk to him about our Epstein information today? Or do you want to also be involved and set it up some other time? Bradley Edwards." MR. SCAROLA: Right. And the suggestion is made that this impeaches Brad Edwards' testimony that he only met with Mr. Rothstein and spoke about the Epstein cases on two occasions. Well, first of all, it doesn't do that. Palm Beach Reporting Service, Inc. EFTA00804634 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 But, secondly, if this is going to be a piece of evidence, I want to talk to Russ Adler about it. I want to find out what happened after July 20, 2009, at 10:45 a.m. THE COURT: Is Mr. Adler listed as a witness? MR. SCAROLA: I don't even know at this point whether Mr. Adler's listed as a witness. I certainly don't intend to call him. I had no plans to call him. I haven't interviewed him. I haven't deposed him. I think -- isn't Mr. Adler one of those individuals who may be doing time? I think he may be. THE COURT: I think the time that he was sentenced to, if I recall correctly, was not a significant amount of time. MR. SCAROLA: I don't know, Your Honor, but I certainly haven't had any communications with -- THE COURT: Well, significant if I put it in the same context of Mr. Rothstein. MR. SCAROLA: Understood. THE COURT: Any time is significant. I don't want to suggest that I'm minimizing that at all. Palm Beach Reporting Service, Inc. EFTA00804635 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 MR. SCAROLA: Okay. Well, I do know that Mr. Rothstein was deposed. I do know that it took considerable effort to get to depose Mr. Rothstein. I do know that this was not a listed exhibit at the time that Mr. Rothstein's deposition was taken, so he couldn't have been questioned about it. Would I have questioned him about it if it was on the defense exhibit list? I certainly would have. Is it possible, conceivably, to be able to do that between now and December 4? The answer to that is absolutely not. And I think that the Court can recognize the fact that that can't occur. THE COURT: For ease of reference, like I like to do during all of these hearings when dates are brought into play, today is November 1, 2018, [sic] and the trial is scheduled for December the 4th of 2018. MR. SCAROLA: Yes, sir. MR. LINK: May I answer the Court's question about Mr. Adler you asked? MR. SCAROLA: Could I -- I'm sorry, go ahead. MR. LINK: I just wanted to answer the Palm Beach Reporting Service, Inc. EFTA00804636 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's question. He was deposed in this case on April 20th, 2011, Your Honor. MR. SCAROLA: In which case, since this wasn't an exhibit, he certainly wasn't asked any questions about it. THE COURT: All right. MR. SCAROLA: So that, I -- I focus on this one example, because it's the one example that opposing counsel chose to call the Court's attention to. And it is illustrative of the problem that exists with regard to every one of these documents. Since they weren't listed as exhibits, they could not have been the focus of prior discovery, including depositions that were taken of people who either were direct parties to these communications or were in a position to have knowledge with respect to the subject matter of the communications. That wasn't done. And would obviously, in a case of this magnitude, have been included as part of the discovery had these exhibits been timely disclosed. Now, the other problem, as I began to address, was that these are the documents out Palm Beach Reporting Service, Inc. EFTA00804637 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 of the disclosed thousands of documents that the defense has chosen to list. There may be ten other emails that relate to this subject matter. Incidentally, there were 20 -- approximately 21,000 hard-copy documents that were delivered in discovery. We would need to review 21,000 documents in order to determine whether there's anything we want to include on our exhibit list in response to the cherry-picked documents that they have included. Beyond that, there very well may be privileged documents that we might want to attempt to use, and frequently that privilege is not an attorney's privilege to waive. It would require that we contact, one, a client, if it's an attorney-client privileged document, in order to secure permission from the client to waive the privilege in order to use it in rebuttal to the documents that they have chosen, cherry-picked to use, or two, there was, in place, a joint prosecution agreement for all communications that occurred among counsel who were prosecuting claims against Jeffrey Epstein simultaneously. Palm Beach Reporting Service, Inc. EFTA00804638 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 Under the terms of that joint prosecution agreement, that common interest privilege agreement, Bradley Edwards cannot unilaterally decide that he's going to use any of those documents. He is obliged to get the clearance of every other participant in that agreement in order to be able to use those documents. So there is a complicated multistep process involving, first, the review of 21,000 documents, the selection of those that are relevant and material with regard to the subject matter that is raised in these documents -- THE COURT: But, excuse me, Mr. Scarola. I hate to interrupt you. MR. SCAROLA: No, no, that's quite all right. THE COURT: We're deviating, in my view, respectfully, from what these exhibits that are listed in the latest exhibit list filed by Epstein and these 47 proposed exhibits that have not yet been listed, at least for purposes of today's hearing. I'm really -- I really want to focus on those exhibits that were filed in the May 2 Palm Beach Reporting Service, Inc. EFTA00804639 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 filing. MR. SCAROLA: Yes, sir. And I'm sorry if I didn't make myself clear, but that's what I was attempting to do. What I'm saying is THE COURT: Go ahead. MR. SCAROLA: -- that with regard to these exhibits, one of the issues in Binger, not the only issue, but one is: Is there prejudice? And my response is, yes, there is prejudice because if you allow this to come in, I've got to review 21,000 documents to see what else is relevant to this topic. If any of those relevant documents are privileged documents that I want to use, there's a multistep process that I must go through in order to be able to use those documents in response to this nonprivileged document. I hope that I've -- that I've explained that better. THE COURT: The only question that I would have, though, is that because there are numerous emails under the subheading communication, starting with Number 171 and going to -- in large part they're emails. There are a couple of circumstances in this Palm Beach Reporting Service, Inc. EFTA00804640 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 communication subheading, there are -- there's a, for example, Wackenhut incident report for number 2 -- 332 and 334, and then an affidavit of Ken Jenne, the former sheriff of Broward County also listed. But, the bulk, by far, and I believe it's -- other than those three instances, and there's a letter also in 2016, so other than those four instances, they're all emails. MR. SCAROLA: Yes, sir. THE COURT: And I presume that most of those emails are in or among those 27,542 pages of documents; fair? MR. SCAROLA: Yes, sir. I my belief is that they're all from that source. THE COURT: Thank you. So by and large, you're going to have to review these other 150 or so, and I'm just estimating, emails that have been listed here amongst those 27,542 pages to put those in context. MR. SCAROLA: Only -- only if they are going to be permitted to be used. THE COURT: Well, I don't know that yet, because I don't know what objections, if any, Palm Beach Reporting Service, Inc. EFTA00804641 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 have been made to these at this point in time. But I would suspect that there's a potential that some may be used. MR. LINK: Oh, I think, Your Honor, because -- THE COURT: Are you thinking in good faith that every one of these would be subject to disallowance? MR. SCAROLA: I believe that every one of them is subject to being disallowed. I think that the -- there are multiple reasons, they are in violation of this Court's order setting a time limit with regard to the disclosure of exhibits, and the use of any one of them would create substantial prejudice to the plaintiff for the reasons that I began to describe. We're going to lose our trial date. That's a really big prejudice in this case. THE COURT: I'm not even there yet. What I'm saying is only in relation to what you suggested today, that if any of these alleged late-listed emails, which number a relative few of the 150 or so that have been listed here, and even if we include the 47, the other 140-some-odd that are late -- or that are Palm Beach Reporting Service, Inc. EFTA00804642 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 listed, but not allegedly late, would still, my point being, require this overarching analysis to put in context, whether it be for objection purposes, for admission purposes, for completion purposes, that being the rule of completeness, to put into context what some or all of these emails may have said, there may be emails that are helpful to your cause, so you may not object to them. That's the point I'm trying to make. MR. SCAROLA: And Your Honor's right THE COURT: If it requires this overarching analysis, no matter how onerous it is for you and your firm members to go through a significant number of those 27,000 and-some-odd pages, if not all of them. MR. SCAROLA: We have, with respect to every properly listed exhibit, examined those documents, decided what we needed to do with respect to being prepared to address anything raised in those documents, we have considered whether there is other evidence originating from the disk or otherwise. We have examined witnesses with respect to those documents, including email, that were appropriately and Palm Beach Reporting Service, Inc. EFTA00804643 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 timely listed. That's all been done with regard to what was properly listed. It has not even been begun with regard to everything that has been improperly listed. The 140 or whatever the number it is, of new email have not -- THE COURT: Those are not new emails. Those are the ones that have been listed, my presumption being for the time period as required by court order. It is only MR. SCAROLA: The yellow ones. THE COURT: -- the yellow ones, which are, again, a relative few. MR. VITALE: Approximately 19, Your Honor. MR. LINK: I counted 13, Your Honor. THE COURT: Whatever it might be, not counting 332 through 337 so, you know, we're talking about a number in the teens as juxtaposed to the 150 or some-odd entries here from 171 to 337. So... MR. SCAROLA: Yes, sir. And every one of those 13, whatever the number is, are subjected to the same kind of analysis that we have dealt with with regard to Number 211, and that is we need to examine all of the other potentially Palm Beach Reporting Service, Inc. EFTA00804644 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 related emails with regard to this one, everything that occurred during that same time frame, we need to discuss it with Mr. Adler, we need to discuss it with Mr. Rothstein, and those are things that we have not done and cannot do in the available time. That's the only point I'm attempting to make. So whether it's one document or 13 documents, the same arguments pertain and the same basis exists for excluding them. THE COURT: Was there any effort to contact any of the individuals mentioned for the 145, or whatever it may be, exhibits relating to emails here that were not late-listed? MR. SCAROLA: I will tell you that we conducted a thorough preparation with regard to every properly listed email. Beyond that, beyond that, I can't respond to the Court's question because of work product issues involved. THE COURT: I'm not asking you for that. I'm asking only for what has been a matter of record. And that is, have there been depositions taken relative to the emails that Palm Beach Reporting Service, Inc. EFTA00804645 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 were timely listed? MR. SCAROLA: There have been depositions taken of witnesses who were parties to the emails. There have -- and there have been discussions, both in deposition and outside deposition, with regard to what was going on in Rothstein, Rosenfeldt, Adler during the relevant period of time taking into consideration the subject matter that is disclosed in properly listed emails -- MR. LINK: Your Honor, I'm sorry to interrupt, but that's an inaccurate statement. I know it's not intentional, but I want the record to be clear. Discovery was closed and this Court entered an order when it granted the continuance that said no more discovery. If we wanted something specific, come back and see the Court. So at the time every one of these exhibits were listed, discovery was closed, there were no depositions taken by Mr. Scarola after that time. In addition, Your Honor said, if you need additional discovery, come and see me, and they did not come and see you once we properly Palm Beach Reporting Service, Inc. EFTA00804646 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 listed all but the 13 we're talking about today. Thank you, Your Honor. MR. SCAROLA: Your Honor, so that the record is clear, we know what the universe of emails was. And we had the opportunity and took that opportunity to discuss with those who were inside the firm at the time what was going on in light of what we knew could possibly be listed as proper exhibits. THE COURT: All right. Thank you. You've answered my question. MR. SCAROLA: Thank you, sir. The second category, the second broad category that Mr. Link refers to are documents that relate to, as Mr. Link expressed it, the Court's ruling that Edwards could talk about his clients. Now, the clients of Bradley Edwards are expressly identified in the complaint that Jeffrey Epstein filed against Bradley Edwards. They are specifically referenced in the malicious prosecution claim. The suggestion that the defense did not know that these were going to be issues until the Court ruled that Palm Beach Reporting Service, Inc. EFTA00804647 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 Bradley Edwards would be able to talk about these things, I don't know how that suggestion could be made in good faith. THE COURT: Well, I mean, that kind of goes to what I was talking about earlier. Isn't his complaint, that being Mr. Edwards' complaint, directing the Court to, and directing anyone who reads it, to these three individuals? MR. SCAROLA: Absolutely. No question about it. And, as I said, their credibility, the quality of their claims was thoroughly investigated by Mr. Epstein before Epstein sued Edwards or Edwards sued Epstein. He's known this all along. He made his allegations against Edwards knowing what their background was as of the time of his filing. And as Your Honor has observed, much of what they are seeking to add now could not possibly be relevant or material to either the issue of probable cause, or the issue of damages, unless there is a concession that the reason why these three young lives were ruined is because of what Jeffrey Epstein did to them. And there has already been testimony about that Palm Beach Reporting Service, Inc. EFTA00804648 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 occurring. How do you get in -- how do you possibly get in a police report about an arrest? How do you get that in? It can't come in. But, even assuming that these are things that were gathered by Epstein subsequent to the filing of Epstein's complaint against Bradley Edwards, they couldn't possibly contribute to the probable cause. They were unknown to him. They couldn't possibly contribute to anything he said in the complaint, they were unknown to him. And in many circumstances hadn't even occurred yet. THE COURT: Well, that's what I alluded to earlier. But, again, my focus was shifted, and I think properly so, to getting back to the late filing issue. MR. SCAROLA: Yes. And with regard -- THE COURT: And to return to what you suggested, I do, because I think it just makes sense, even though I have my concerns over its ultimate admissibility, but we're really not there yet. MR. SCAROLA: But the suggestion was made in argument that the reason why we were -- were Palm Beach Reporting Service, Inc. EFTA00804649 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 listing these late is because the Court had not yet ruled that this was going to be relevant and material information. That just isn't so. It was relevant and material, whether it's admissible or not, whether it's really relevant or not, based upon the allegations included within the original complaint against Brad Edwards and the malicious prosecution claim that is currently being prosecuted in front of this Court. There is no way to excuse this nondisclosure, either because these documents were recently discovered, because they have been known and knowable for many years, or on the basis that the issues have somehow changed as a result of some ruling that Your Honor made. That's just not the case. And we cannot lose sight of two important things with regard to probable cause. One, as opposing counsel has repeatedly acknowledged, probable cause is a legal issue for determination by the Court. It is not a jury issue. This Court decides on probable cause. And this Court decides on probable cause based upon what Jeffrey Epstein knew as of the Palm Beach Reporting Service, Inc. EFTA00804650 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 time that Jeffrey Epstein filed the complaint. What has Jeffrey Epstein told us about what Jeffrey Epstein knew as of the time he filed the complaint? What he's told us is, "I refuse to answer on the grounds that it may tend to incriminate me. I assert my Fifth Amendment privilege." THE COURT: And if I'm not mistaken, that's all we're going to know. MR. SCAROLA: That's all we're going to know because it has also -- it has also been represented repeatedly, and this Court has made rulings based upon that representation, Mr. Epstein will not attend this trial. He will not testify, he will not attend this trial. So, the argument -- THE COURT: And just for the record, that has to be emphasized here when it comes to the, again, alleged late filing of these "public records" of the victims here. And the fact that Mr. Epstein will not be at trial, and his testimony essentially consisted of, as far as the substantive information that was transmitted at the deposition or at the depositions, I, I can't Palm Beach Reporting Service, Inc. EFTA00804651 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 remember if it was more than one, but the one I do recall is the one that's been emphasized here regarding the term "ginned up," and that is what was your motivation for suing Mw Rothstein, Edwards and as so as to bring to the attention of whomever it was to be brought that these claims were ginned up, and there was an attempt to somehow defraud those who were investing in Mr. Rothstein's Ponzi scheme or, again, words to that effect. I don't have it in front of me. But that was the gist of the information that was proffered. Again, going back to something that perhaps I shouldn't at this point, but I am at a loss that if he's not going to testify here, and that is essentially the sum and substance of his substantive testimony pertaining to the rationale of filing the lawsuit, how any of this is even able to be introduced as part of his defense, particularly whereas here we're talking about many of these entries coming well after the alleged incidents involving Mr. Epstein and these three individuals. MR. LINK: Your Honor, may I respond to that? Palm Beach Reporting Service, Inc. EFTA00804652 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 MR. SCAROLA: And all of them coming -- all of them coming after the lawsuit was filed and could not possibly have formed part of the basis of probable cause, because he had no idea about any of this. THE COURT: And, respectfully, also coming in just a few months ago. Yes, Mr. Link? MR. LINK: I didn't I thought we had made an agreement we weren't doing admissibility -- THE COURT: We're not. But, again, it's somehow -- or somewhat of a futile exercise, in my view, and we all, I think, have an aversion to not wasting time, or an aversion to wasting time. So as to -- to look at this rationally and to look at it practically, and attempting to somehow cobble together how this could even possibly be used in this Court in this case. MR. LINK: May I explain, Your Honor? Because I can answer the question. THE COURT: Yes. MR. LINK: So Mr. Edwards has the burden of proof, not Mr. Epstein. The case law Palm Beach Reporting Service, Inc. EFTA00804653 84 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 suggests he has a very high burden of proof to demonstrate malicious prosecution. Mr. Edwards is going to get on the stand. I must be allowed to cross-examine him. I don't have to sit back, let him testify to anything he wants and not be able to cross-examine him because Mr. Epstein's not going to testify. THE COURT: I have no problem with excuse me just a minute, please. As you are very much aware, I have no problem with a vigorous cross-examination. The word "cross" is not -- is meant as, at least in part, has connotations of anger. So, I have no problem with that. What I am suggesting, however, is Mr. Edwards was deposed, you said, by you, and I presume by way of court order -- MR. LINK: Incriminated, yes, sir. THE COURT: -- in the latter part of December of 2017, is that what you said? MR. LINK: I believe that's right, it was December. THE COURT: All right. Now, you have every right to cross-examine him. My point in, again, trying my best in my role as a Palm Beach Reporting Service, Inc. EFTA00804654 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nonadvocate, and that is as a neutral party trying my best to level the playing field and now confronted with from 400 -- numbers 445 through 543, so approximately 100 public records revelations. MR. LINK: Yes, sir. THE COURT: And I use that term purposefully. Because what I presume to be the answer is, when you took Mr. Edwards' deposition in December of 2017, he was not provided with these documents to be able to discuss them, to be able to review them, even if it was at his deposition you said, look, here's public records that you probably are not totally aware of, you may be, you may not be, but here they are. Mr. Scarola may have objected, may have requested the termination of the deposition to seek a protective order so that he, Mr. Edwards, would have the opportunity to properly prepare his testimony in relation to these records. Because if I'm gathering what I think I'm going to gather by way of your response -- MR. LINK: Yes, sir. Palm Beach Reporting Service, Inc. EFTA00804655 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: -- he wasn't given these records at his deposition, correct? MR. LINK: They weren't, and I never would do that in a deposition, Your Honor. Why do I have to show him my cross? What in the rule says I have to confront him at deposition with exhibits that I want to use at trial? THE COURT: Again, is this a question or is this rhetorical? MR. LINK: No, it's a statement, because I don't know of any rules -- THE COURT: When you start a sentence with "what," it sounds to me like a question. MR. LINK: It was, and I withdrew it. THE COURT: Very well. But my response would have been, had you not withdrawn it, is the overarching, the pervasive rule of we are not going to competence trial by ambush. MR. LINK: Sir, that's why they're listed on the exhibit list. I don't have to ask him during deposition. THE COURT: But the point I'm making, Mr. Link, and I apologize for my facial and hand gestures. That wasn't meant to be anything that was directed to anyone. Palm Beach Reporting Service, Inc. EFTA00804656 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: It's okay. THE COURT: My respectful point is that in order to properly prepare for one of the most critical parts of a case, that being the plaintiff's deposition, especially where here it's coming almost ten years after a given case has been filed, that that party has the opportunity to prepare themselves with what is going to be confronting them relative to the material elements of the case. And that brings me precisely to what we're dealing with now, and that is if at the time in December we had set this case for trial in 2017, again, we're now into almost the trial being reset for December, we freeze that time period, we don't have these public records listed as exhibits. We fast-forward a bit to when I set the trial again, and that was what month? MR. VITALE: March, Your Honor. THE COURT: March. Recognizing the time that we're dealing with here, the length that everyone has to, really, except for you and Ms. Rockenbach, but including myself, for the last almost four years, having to deal with Palm Beach Reporting Service, Inc. EFTA00804657 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 this case, with various iteration of counsel for Mr. Epstein, and from Mr. Edwards' standpoint and from Mr. Epstein's standpoint, having to deal with this for the last close to ten years. Certainly for Mr. Scarola's standpoint, having to deal with this case since 2009. That's a long time. And my purpose here, whether it be this case or any other case that I preside over, is a process, and I may have mentioned these to you-all. I wouldn't be here unless I had an abiding respect to maintain what I perceive to be the requisite process. What does that mean? That doesn't have anything less of a meaning than fundamental fairness. What is the right thing to do. I don't have to represent a client. That's the beauty of the job, maybe one of the few. But I don't have to answer to anyone other than the law, and my own legal, and to a degree, moral compass when it comes to making rules. And I'm not using the word "morality" as it has to do with anybody involved in this particular case. It may have been a poor choice of words. But essentially what I mean Palm Beach Reporting Service, Inc. EFTA00804658 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 by that is when I look in the mirror at the end of the day, can I respond to the one singular question, "Did I do the right thing by those who came before me, no matter how rich, no matter how poor, no matter how vilified, no matter how promoted or well thought of?" So the point I'm trying to make here is precisely the fact that in this particular setting, when the subject, then, to at that time when trial in December plaintiff is deposed and is impeachment, not being aware the case was teed up for of 2017, which coincidentally was the time his deposition was taken, and then if we fast-forward and we freeze March when, but for a technical issue that arose, having nothing to do with the Edwards versus Epstein case, but simply having to do with the corollary of Epstein versus Rothstein, and that technicality, these case -- this case would have been tried in March of 2018. See? Without this listing of almost 198 public record documents. And there's probably more than 98, many of these are multipages, obviously. But 98 named exhibits, which are all potentially used as fodder for Palm Beach Reporting Service, Inc. EFTA00804659 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 cross-examination of the plaintiff, who until these were listed, wasn't aware that they were going to even be utilized. Thank you for listening. Go ahead. MR. LINK: No, my pleasure. I'd like to make just a few points that I think I need to for the record, Your Honor. One, the plaintiff has known about every one of the emails because he was -- THE COURT: I'm not talking about emails, I'm talking about these public records now. MR. LINK: I know. But he's known about the emails. THE COURT: Okay. MR. LINK: Two, I don't believe I have any obligation under any rule of civil procedure or case that I know of to ever, taking the deposition of a plaintiff or anyone else, to show them documents that I intend to use in cross. I may choose to, but I don't have to. Three, all of these documents have been listed since at least May, if not from before. THE COURT: Well, I don't know that. All of these -- MR. LINK: Have been listed since May. Palm Beach Reporting Service, Inc. EFTA00804660 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 going by way of your color coding. MR. LINK: Yes, sir. THE COURT: And that yellow color coding on all of those 98 public records exhibits have been identified as newly added as of May of 2018. MR. LINK: They were on our December clerk's trial list, Your Honor. December 2017. So they have been listed -- MS. ROCKENBACH: March. MR. LINK: March, apologize. They've been listed since March of 2018, every single one of them. So they were not just shown to them, they have had -- this trial -- what is that -- eight months of time with them. Eight months. I also want to point out that not once during the eight months did counsel for plaintiff ask this Court for any additional discovery based on the exhibits that were listed. And this Court gave us permission to do that. I also want to point out, Your Honor, that if there's any depositions or discovery that plaintiff needs to take, we have no objection Palm Beach Reporting Service, Inc. EFTA00804661 92 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 under Binger to opening up discovery for them to do that. So that if there is any prejudice, which we don't believe exists, can be cured by their taking discovery. Next, although it is not what we have asked for, if, in fact, the trial needs to be moved 30 to 60 days, we will not object to that, so that any prejudice that can by eliminated can be eliminated. THE COURT: I'm not going to do that. MR. LINK: I understand. THE COURT: There is no way I'm going to do that. MR. LINK: I understand. THE COURT: It would be an absolute -- that would be if I did that, Mr. Link, would be an example of what I just said earlier that would be when I look in the mirror, I would probably have to resign -- MR. LINK: Your Honor, I understand that. THE COURT: -- before I would be able to adequately answer to my own compass. MR. LINK: I understand that, sir. But I need to offer that under the cases I've read under Binger, so that I have offered solutions Palm Beach Reporting Service, Inc. EFTA00804662 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 ameliorate their prejudice. Whether the plaintiff wants to do it or the Court wants to agree, I understand that's your prerogative. I just wanted to make sure, because I've read all the Binger cases, that I make available to the plaintiff, and to this Court, every opportunity to cure whatever prejudice they think they have. I don't believe they've had any since they've had these emails, they've had these public documents, they've had everything on our list since no later than March of 2018. MR. SCAROLA: May I conclude my argument, please, Your Honor? THE COURT: Well, he's throwing it back into your court. MR. SCAROLA: Thank you, Your Honor. THE COURT: And I agree it's the issue when he's saying -- he's saying that it was dilatory on the part of Mr. Edwards and counsel not following through with these records that were listed in March. And I'm only going to the public records issue right now that were listed in March of 2018 in preparation for the then-March trial. Palm Beach Reporting Service, Inc. EFTA00804663 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 MR. SCAROLA: Your Honor -- THE COURT: And hence, you've waived any reasonable objection as it relates to the late filing of those public records entries. MR. SCAROLA: Your Honor, the documents were listed in March. The plaintiff responded with a motion to strike the documents listed in March. All of those exhibits were stricken by court order. We don't need to prepare to respond to stricken exhibits. We are here because they are again attempting to list documents that were already stricken by Your Honor. So, the suggestion that we have somehow not been diligent with respect to exhibits that have been stricken, I suggest to Your Honor is not fair. THE COURT: Were they stricken because they were late-filed, was that the reason? MR. SCAROLA: Yes. They were stricken because they were late-filed. THE COURT: So now they're saying, Well, for whatever reason, and I've already gone through my own analysis relevant to the rationale of the case not going to trial, which Palm Beach Reporting Service, Inc. EFTA00804664 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 had nothing to do with the Edwards versus Epstein case, but a technicality dealing with the other matter regarding Epstein versus Rothstein, now they're saying, Well, you've had eight months to deal with them and you haven't dealt with them. MR. SCAROLA: But we haven't had eight months to deal with them, sir, because they were stricken. And respectfully, I don't know how a burden can be imposed upon us to deal with stricken exhibits. What we are here addressing is a new attempt to have this Court revisit rulings that Your Honor previously made. And the same arguments were made earlier. Look at the pretrial stipulation. They stipulated that we could use these exhibits. There's no prejudice. All of those arguments were addressed. And ultimately Your Honor struck all of those exhibits. And there has been no delay on our part with regard to challenging the propriety of these late-added exhibits. We responded promptly, and they are the ones who are now calling up this motion, their motion to add Palm Beach Reporting Service, Inc. EFTA00804665 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 additional exhibits, they are calling it up 32 days, 33 days before trial. THE COURT: When did I enter that order relative to the disallowance of any further discovery without court order? MR. VITALE: December. MR. LINK: 2017, Your Honor. THE COURT: December 2017? MR. LINK: Yes, sir. MR. VITALE: I think it was actually November 27th, Your Honor. THE COURT: I just know it's somewhere in one of these books. MR. LINK: Just for the record, while you're looking, Your Honor -- MR. SCAROLA: I'm sorry, but... THE COURT: Mr. Scarola hasn't finished, and I'll give you five minutes to rebut. MR. LINK: Thank you. MR. SCAROLA: The last point that counsel makes, the last category of documents are documents -- MR. LINK: Your Honor, I have a copy of the order, if you want it. THE COURT: Just give me the date. I Palm Beach Reporting Service, Inc. EFTA00804666 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 remember it. MR. LINK: November 27th, sir. THE COURT: November 27th, '17. Thank you very much. I appreciate that. MR. LINK: You're welcome. THE COURT: Thank you, Mr. Vitale, as well. Go ahead, Mr. Scarola. MR. SCAROLA: -- are documents that relate to Brad Edwards' claim for damages. Brad Edwards' claim for damages was in the malicious prosecution claim from the day that it was filed. Brad Edwards' claim for emotional distress arising out of the malicious prosecution has been in this case since day one. There simply cannot be a viable argument based upon some suggestion that they're just now realizing they need to defend against the mental anguish claim. That's just silly. It has been in this case since day one, and we ought not 30 days before trial to be placed in a position where we must deal with exhibits allegedly relating to that claim for damages that has been in this case for many, many years. Palm Beach Reporting Service, Inc. EFTA00804667 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 simply, again, is another circumstance where Jeffrey Epstein's current counsel takes issue with the quality or quantity of the work done by Jeffrey Epstein's privately retained prior counsel. That's an issue between Jeffrey Epstein and his privately retained prior counsel. It is not an issue with which either we or this Court should be obliged to deal on the eve of this very, very, very long-delayed trial. So, those, Your Honor, are the general arguments that I wanted to make in response to the points that were made by opposing counsel. I have provided Your Honor with an outline with regard to Binger. I would adopt all of the positions that are stated in that outline without having to repeat them for Your Honor. I think they're there, and as I said, I'm confident that Your Honor is well aware of not only what Binger stands for, but what Binger doesn't stand for, and that is that inquiry stops with the issue of prejudice. Although even if it did, even if it did, there's absolutely no question about the fact that we would be dramatically prejudiced if the Palm Beach Reporting Service, Inc. EFTA00804668 99 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 door were to be opened to all of these new exhibits at this point in time for all of the reasons that I've previously stated. Thank you, sir. THE COURT: All right. Mr. Link, I promised you five minutes, and it is MR. LINK: I'm on the clock, sir. THE COURT: -- 12:32, and you'll have until 12:37. MR. LINK: Yes, sir. First, just so the record is clear, the public documents that we talked about, the public records were delivered on a flash drive in February, so they have had the actual public records since February of 2018, Your Honor. Second, you probably recall that this motion was noticed for two days to be heard in July, and by agreement of the parties we pulled this particular motion off the Court's calendar that we argued, so that we could attend mediation, and we did that. So it was by agreement that the motion was not heard back in July, Your Honor. Third, Mr. Scarola wants to argue about this freeze in time at the time the complaint Palm Beach Reporting Service, Inc. EFTA00804669 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is filed. And back in, I think it was December of last year, I said to this Court, those very words, that we should be looking only at what is known to everybody from the date the complaint was filed backward. Mr. Scarola stood up and said, No, sir, we are also challenging the continuation of the lawsuit. You can't have it both ways, Judge. You can't say that the defendant is precluded from talking about anything going forward after they filed the suit, but the plaintiff can. All the defendant can do is talk about what existed before the suit was filed. So, we have to have a meeting of the minds here. Are we talking only about the original filing? If that's the case, then nothing, frankly, we're talking about would ever come into evidence. It's only if we're going to focus on the allegations in the complaint, which is what this Court ruled, and Mr. Scarola's assertion that he wants to prosecute the continuation aspect of the malicious prosecution. If we're going to have the continuation Palm Beach Reporting Service, Inc. EFTA00804670 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 aspect of the malicious prosecution, you can't tie the defendants' hands and say, You may only talk about information and evidence that was known before the lawsuit was filed. If that's the case, why would we ever be entitled to take discovery? This would be the only case I know in the civil arena where we wouldn't -- we wouldn't have taken any discovery. We could have tried this case on day one. But there was a lot of discovery taken, none of these exhibits create prejudice, they've known about them for months, they're in the public record, they're emails from Mr. Edwards himself and, Your Honor, Binger teaches us this: Yes, you have discretion. But the discretion is really driven by, as you said, process and fairness, and is there really a prejudice? And my client is offering every solution, if there is any prejudice, which we don't believe exists, every solution to that prejudice from opening up discovery, to extending deadlines, to moving the trial, to whatever it takes to eliminate the prejudice, as Binger suggests. Palm Beach Reporting Service, Inc. EFTA00804671 1C2 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 Thank you, Judge. THE COURT: Thank you very much, both sides. I very much appreciate your spirited and well-informed arguments. Let me start by saying by agreeing to the delay, for whatever purpose, and it was a noble purpose, that being a good-faith attempt to mediate this case and have it resolved. And according to Florida law, and probably consistent throughout the United States, settlements are favored by the law, and certainly that rationale, I appreciate it. But by making that agreement, both sides placed themselves in some peril relative to bringing this case before the Court approximately a month prior to the case proceeding for trial. The case will not be moved from the trial docket and will proceed short of resolution of the case in its entirety, that being the Epstein -- the Edwards versus Epstein case in its entirety, since that's the only thing that is being tried at that time. The intent of the November 27, 2017 order barring any further discovery absent court Palm Beach Reporting Service, Inc. EFTA00804672 1C3 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 order was, albeit short, carefully and lengthily contemplated by this Court so as to be able to viably try a 2009 case without any further delay. That time frame is extremely important, and one that I believe should be and remain frozen in time. The Court recognized in December of 2017, shortly thereafter, that because of the number of pretrial motions that needed to be dealt with, and there were banker boxes full of motions and accompanying exhibits that led the Court to that conclusion, and albeit with significant reluctance, I moved the case from December to March. The order relative to the discovery, to my knowledge, that being the November 27, 2017 order, never was further amended. Or it never was amended since there was no interim there, that I'm aware of. There may have been some discovery that was permitted, including the deposition of Mr. Edwards, but the reason why I brought the issue of Mr. Edwards' deposition up that was taken in December, '17, and the fact that he wasn't provided with those documents was not an Palm Beach Reporting Service, Inc. EFTA00804673 104 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 issue of strategy. It was solely an issue of contemplation now and bringing it back a year ago, that if those materials were not on a witness list, on an attorney exhibit list, it would have furthered the frustration of the Court relative to the requirement of initial discovery having -- or strike that -- of additional discovery having to be done, and that could have been largely taken care of by virtue of the fact that Mr. Edwards was provided with those documents so he would be able to prepare and that no ultimate prejudice would be done. What has been demonstrated here today is that it appears from my review of these late-filed exhibits, that most, if not all, of the proposed late-added exhibits were available to Mr. Epstein or his counsel before Mr. Link and Ms. Rockenbach. And they were available either before the previously scheduled December 17th trial date, or the date set earlier this year in March of 2018. I've heard enough. MR. LINK: I just wanted to make a clarification on a date, I apologize. Palm Beach Reporting Service, Inc. EFTA00804674 105 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. MR. LINK: Mr. Edwards' deposition was taken November 10th, before the witness list was exchanged. THE COURT: Okay. Well, November 10th is still close enough, and I recognize now that's fine that the deposition was in November and December, it would have been before the order relative to the no further discovery was entered. But that's a very, very minor point in terms of the Court's overall evaluation of the matter. But getting back to what I was saying, as it relates to the trial set earlier this year in March of 2018, but for the technical issue that was raised, and but for the fact that the case was stayed by the Fourth District Court of Appeal despite the Court's setting of separate trials, despite the fact that there was no impediment to going forward on the Edwards versus Epstein malicious prosecution case, despite all of the reasons why the Court gave that, in essence, this was really not a counterclaim at all but for the nomenclature used. Palm Beach Reporting Service, Inc. EFTA00804675 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It was a separate action, and at least by implication the Fourth District Court of Appeal recognized the separateness of the action by indicating that the point was moot on appeal because the Edwards case was reset for trial. The case didn't go because they decided to stay it, which again, is their prerogative, I take no issue with that. But it was what it was. The point I'm making, though, is but for that hypertechnicality, the case would have gone to trial on the Edwards versus Epstein case. And that same captured time, that being the November 27th order disallowing any further discovery other than by court order where the Court contemplated that there could be some information that was derived as time went on that would be new and that would constitute the ability to proceed with that newly discovered information, that was the impetus behind that court order. But it was firm, and it was without equivocation as to the Court's rationale and reasoning that it has gone -- this case has gone on too long, and that the information that was necessary to go forward was or should have Palm Beach Reporting Service, Inc. EFTA00804676 1C7 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 been known to both sides and their respective counsel, whether that counsel was representing Mr. Edwards in 2009, in 2010, all the way up to his present attorneys, Mr. Link and Ms. Rockenbach. And weren't we told that somebody was going to shadow their representation? Are they still shadowing? MR. LINK: Not for over a year. MR. SCAROLA: Yes. We were told that. THE COURT: Well, I didn't want to get them confused. MR. LINK: We brought out the sun and eliminated the shadow. Actually, is that reversed? (Thereupon, a discussion was held off the record.) THE COURT: But the point that I'm making is the reason why the case didn't go to trial in March was not that the separate claim brought by Mr. Edwards against Mr. Epstein was not at issue, and we would have been ready and we would have gone forward. It was not because that November 27th order has never been, to my knowledge, it was not to suggest that the Palm Beach Reporting Service, Inc. EFTA00804677 108 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 floodgates were going to open, and I probably used that term earlier in the discussion that culminated in the November 27th execution of the order. It was not to open the floodgates further, because there was no need to. I agree with the position Mr. Edwards that if this Court permit hundreds of newly added again, I emphasize that either penalized for their agreement because that was an agreement taken by was to wholesale exhibits and, party should be to hold off, and I never get involved -- I shouldn't say never -- rarely get involved, unless they affect the docket. I rarely get involved with agreements of counsel to put this off until now, approximately a month before going forward on an extensive trial, that this Court has put aside time, has refused the request of others to utilize that time, and we will not again take this off without a complete and full settlement of the Edwards versus Epstein claim. And I find that there would be extensive discovery required if the Court was to allow these exhibits to be added at this late juncture. And I am not going to delay, and Palm Beach Reporting Service, Inc. EFTA00804678 1C9 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 extensive discovery suggestion was, in fact, at least impliedly conceded by Mr. Epstein's counsel today by indicating that they had no objection to the case being put off for 30 to 60 days. Again, I'm not going to do that, I'm not going to violate an order that I put in place a year ago relative to not permitting discovery absent a court order. In effect, by allowing these late exhibits, it would violate the Court's own November 27th, 2017 order, because by its very definition, that being allowing these exhibits, it would open discovery again, as at least impliedly conceded by Mr. Epstein's counsel. I further agree with Mr. Edwards' attorneys, to the extent that any proposed new strategy, or at least, again, impliedly, concerning the work that was done by Mr. Epstein's prior counsel in not listing any of these exhibits should not and will not guide this Court's ruling or any rulings that have been made. I am permitting Numbers 367 and 368. Those being the -- what I perceived to be Palm Beach Reporting Service, Inc. EFTA00804679 110 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 screenshots of Mr. Edwards' law firm's website, the Edwards Pottinger website printout of Mr. Edwards, and the Edwards Pottinger printout reached a jury verdict. I'm not suggesting that I'm going to admit those into evidence, only that I'm going to find that because of their recency, and because it deals with Mr. Edwards' damages, at least in part, and that these were captured subsequent to Mr. Edwards' deposition, but back in January, it would be a matter of presumably public information and, therefore, I do not find prejudice specifically as it relates to those two exhibits. Again, it is without prejudice, however, to any objections that may be made concerning the substantive aspects of the proposed admission. Likewise, I haven't yet dealt squarely with these other 47 emails and how they impact upon the Court. I am unsure. So I'm not going to delve into those today. But as far as all of the remaining late-filed exhibits, they will be stricken pursuant to the reasons that I have given at length today, and the rationale that I have Palm Beach Reporting Service, Inc. EFTA00804680 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 announced. So, I thank you all very much. I'd ask that an order be prepared in conjunction with the rulings that I've made. I've been clear, so I don't expect there to be competing rulings here as I -- or competing orders as I've received in many of the instances in the past. I am warning both sides that if I receive competing orders and I have to take the time to go through those competing orders after I've already announced clearly, unequivocally and lengthily the rationale behind my rulings, that it will be a loser pay situation where I will award attorney's fees and costs as a sanction if I find that there is an unmeritorious disagreement with a proposed order. The order should be prepared by the movant, that being Mr. Epstein's counsel, with review by Mr. Edwards' counsel. And I expect any difficulties to be worked out before I receive competing orders. And if I do receive competing orders, as I said before, the only way I have in dealing with 1,600 open files is to take a rather hard Palm Beach Reporting Service, Inc. EFTA00804681 112 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 stance on this so as to protect the time and devotion that this Court can give, which is only so many hours per week both here in the courtroom and at home, and that is week after week after week, unless it's during vacation time, which I'm still subject to phone calls and emergencies in many cases. MR. SCAROLA: Your Honor, with regard to the 47 emails, the privileged documents that are in contention, I have a copy of the bankruptcy hearing transcript, as well as the declarations that constituted the direct testimony considered by Judge Ray. Is that something that Your Honor would like? THE COURT: Yes, i would. i'll take a look at that. Is that okay with you, Mr. Link and Ms. Rockenbach? MR. LINK: Absolutely. I was going to ask for some assistance, Your Honor. Would you like us to get time to get in front of you? I understand you haven't decided whether you want to conduct an in camera inspection. If the Court decides it Palm Beach Reporting Service, Inc. EFTA00804682 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wants to conduct an in camera inspection, I would suggest that the protocol that was agreed to by the parties back in 2010 would make sense, which is that you would have the 47 exhibits and Mr. Scarola and I would present our views about those 47 exhibits before the Court. And we know that -- I think we know that we won't have a bankruptcy ruling before at least November 13th, which is when the proposed orders will be submitted by Fowler White and Mr. Edwards. Do you want us to get in front of you before? What can we do to help Your Honor? THE COURT: All right. Well, let me understand a couple of things, because you-all are living with the case and, again, this is but one of many for me. These 47 emails, at the very least, have been timely listed or not timely listed? MR. SCAROLA: No, Your Honor, have not. MR. VITALE: They were struck as part of the 700-plus exhibits that Your Honor struck on March 8th. MR. SCAROLA: But these were late-listed exhibits, but these have a separate issue, Palm Beach Reporting Service, Inc. EFTA00804683 114 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 which is the privilege. THE COURT: I'll give you a minute. So they are not part of what was comprised in this -- in this grouping, and I -- for the record, I'm referring to what I've just ruled on. MR. LINK: They're not. And the reason, you asked me earlier about the 47, and I thought there was more of a Binger analysis with the 47. Because they were not discovered by anybody until we reviewed the disk. So that they were not sitting, you know, being used by somebody in a strategic decision not to use them. So I think the late discovery is an issue as to those 47, which is different than the exhibits that you addressed today. THE COURT: So these 47, though, were part of the initial discovery requests and response because if I'm understanding what you said earlier, in 2010 and they were -- MR. LINK: Yes, sir. MR. SCAROLA: Listed on the privilege log. THE COURT: -- listed as privileged. MR. SCAROLA: Listed on a privilege log and no ruling was ever made in response to any Palm Beach Reporting Service, Inc. EFTA00804684 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defense challenge to that privilege log. MR. LINK: That's correct. MR. SCAROLA: And while -- well, I don't want to get too deep into these arguments. THE COURT: Let's not get too deep into them, because I think that they do have a bit of a different connotation and import as it relates to whether or not late-filed, because if they were contained in the 2010 privilege log, it's very difficult to suggest that there would be prejudice as to knowledge on the part of those documents being potentially utilized. So, what I would like you to do then is we're getting dangerously close on time MR. VITALE: Your Honor, just a clarification for the record. Along with the disk, there was a folder containing 32 hard copies of materials that Fowler White printed from the disk. If my memory serves me correctly, 22 of those documents were listed on Mr. Edwards' privilege log, one of them had handwritten notations. So in terms of the discovery issue, I just wanted the record to reflect that hard copies were, in fact, in possession of Palm Beach Reporting Service, Inc. EFTA00804685 116 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. Edwards' attorneys. THE COURT: Okay. All of that I'll take into consideration at one time. But I appreciate you bringing that to my attention, Mr. Vitale. But I think, you know, obviously we have to deal with this sooner rather than later. I'll check what's going on, I know that -- I think I told you, the week of November 11th I'm going to be pretty much away or otherwise unavailable. I have the 13th, 14th and 15th that I'll be at this conference speaking as part of the judicial panel in New Orleans for those three days. Monday is a holiday, that being the 12th. The 16th I've indicated to you that I have six hours of nonjury trial in three different cases. And then we have the Thanksgiving holiday where I'm going to be on vacation. So what I'm going to ask you to do is this. I would suspect that this is pretty much teed up and that you-all know essentially what your respective positions are going to be. So, what I'd like you to do, Mr. Link, is have your -- I presume it's going to be your motion? Palm Beach Reporting Service, Inc. EFTA00804686 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: It is. THE COURT: No, I don't know what you're going to call it, but whatever your motion is, to be filed and briefed by next Friday. MR. LINK: A week from today? THE COURT: Yes, sir. MR. LINK: Yes, sir. No problem. THE COURT: And then, Mr. Scarola, your response will be due to me by the following Friday. MR. SCAROLA: Yes, sir. MR. LINK: Would it be helpful, Your Honor, if we did it assuming Judge Ray rules one way and assuming Judge Ray rules the other way for you to consider? Does that help you? THE COURT: That's fine. You know, whatever you think is best. I'm not going to harness you there. I just want them as brief as possible, please. MR. LINK: Yes, sir. THE COURT: Because what I'm going to do then is during the vacation week, even though I'm hopeful to be away for at least a few of those days, I have to be back on Wednesday for a medical procedure on the 21st, so I'm going Palm Beach Reporting Service, Inc. EFTA00804687 118 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 be back in town at least by the 21st. MR. LINK: Okay. THE COURT: Okay? So if you get those to me by the 16th, I'll have that weekend, and then -- I'm not going to take it with me on my vacation time, away from the family. But I'll have it also during the following weekend, and then I'll make some time available for you during the week of the 25th, even though -- I'll show you my calender, if you care to look at it. MR. LINK: We know it's full. THE COURT: It doesn't look particularly good. MR. LINK: Your Honor, for purposes of making the argument, may we refer to the 47 exhibits? They're under seal, so I want to be careful what we do. THE COURT: Well, that's a good question. MR. SCAROLA: I think it's a question that's easily answered, Your Honor, and that is that this must be dealt with the way any privileged issue is dealt with. You don't get to argue from the contents of the documents. Because you're not supposed to have the Palm Beach Reporting Service, Inc. EFTA00804688 119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documents unless and until the Court decides that they should be released. It is not appropriate for counsel to be making arguments based upon the content of the documents. MR. LINK: The only reason I disagree, and I would agree with that proposition, is that the parties contemplated turning the documents over, work product documents, to Mr. Epstein's lawyer so they would both have a set to argue to Magistrate Carney. The issue with these 47, that Mr. Scarola has said they're attorney-client privilege documents. If they are attorney-client privilege, then they should not have been turned over. We have other reasons for waiver, such as the crime fraud and they were provided to an adversary. THE COURT: And remind me, Magistrate Carney, was he involved in the bankruptcy or was he involved in something else? MR. LINK: He was involved in he was appointed by Judge Ray. THE COURT: As a magistrate in the bankruptcy -- MR. LINK: As a special master, I should Palm Beach Reporting Service, Inc. EFTA00804689 120 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 say. Not a magistrate, special master. MR. SCAROLA: After which Judge Crow made it very clear that he would be ruling on issues of privilege with regard to any privilege assertions in a case in which the subpoena was issued over which he was presiding. So Judge Carney never made -- MR. LINK: We don't disagree, Judge Hafele. MR. SCAROLA: Judge Carney never made any privilege -- THE COURT: No, I'm not suggesting he did. That wasn't really my intent at all. And even if he did, I don't think that it would be any way, shape or form binding here. MR. LINK: We agree you're the person. THE COURT: So what I will need is the emails sent to my office under seal. I will be the only one to review those emails. What I then would need from you is the motion that's filed, and I don't know how there can be a viable discussion without discussing the contents of the emails in a setting that the memoranda is sent under seal, and for attorneys' eyes only. Palm Beach Reporting Service, Inc. EFTA00804690 121 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: Respectfully, Your Honor, that's what happens in every circumstance where there is a privilege assertion. We file a privilege log -- THE COURT: I just don't have these things come up that often where the sensitivity is such that it is of significant concern. So, usually the parties are able to hammer out agreement on these things and we -- and I go with whatever the agreement is. MR. SCAROLA: Well, the agreement usually is if there's going to be an in camera inspection, the documents are handed over to the Court for in camera inspection, they never go to opposing counsel; to quote a man of great wisdom, you don't want the fox guarding the henhouse. You don't want to send the man in to repair the stucco in the dressing room and tell him "Don't peek." They're not supposed to see these things. They're just not supposed to see them. MR. LINK: Except that Mr. Edwards agreed that that was the process -- MR. SCAROLA: Respectfully, that's not the case. There were a group of Palm Beach Reporting Service, Inc. EFTA00804691 122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorneys'-eyes-only documents that were handed over that do not include the documents that are listed on the privilege log. And that's what we're talking about here. We're talking about privileged documents. The fact that they obtained those documents improperly does not give them any greater right, if anything it gives them a lesser right, to challenge, at this point, the assertion of privilege. THE COURT: Well, that may be. That may be fine for legal argument, but I want to get to the practical aspects of trying to -- for my own purpose, be able to adequately review the legal arguments in connection with the emails at issue. And at least from the attorneys' standpoint, and Mr. Epstein's standpoint, as I understand it, the cat is out of the bag in that regard. So, I can't undo what's already been done, and that's been years ago. MR. SCAROLA: So we don't want to aggravate the problem. THE COURT: And I agree. That's why I'm saying that I think the best approach would be for a motion to be filed of a generic quality that does not mention any contents of these Palm Beach Reporting Service, Inc. EFTA00804692 123 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 emails, but simply tees it up, so to speak, with the understanding on this record today that any substantive discussion of those emails will be done under seal by way of memorandum, and that will be done under seal and will continue to be under seal, and will be filed under seal in case of a need for appellate review. So that is going to be the direction of the Court, that the motion be filed, but that the memorandum be sent under seal to this Court, hand-delivered to me, sealed. And the same response memorandum be sent to me under seal by Mr. Edwards' counsel a week later. MR. LINK: And shared with each other, though? THE COURT: Absolutely, for attorneys' eyes only. MR. LINK: Understood. THE COURT: Okay? And Mr. Edwards, I understand, is co-counsel, so he has the right to look at them. But it's not to be distributed to anyone else -- MR. LINK: Understand. It's very clear. THE COURT: -- until I issue an order of Palm Beach Reporting Service, Inc. EFTA00804693 124 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, okay? MR. LINK: Thank you. MS. ROCKENBACH: Thank you, Your Honor. THE COURT: And that will relate to that, as well. I have to go. I do have another appointment that I have, that I'm already late for. MR. SCAROLA: Your Honor, this is the bankruptcy materials. THE COURT: Thank you. And thank you so much to our court reporter and to our deputy for kindly remaining through the lunch hour. Have a very pleasant weekend and thank you again for your respective arguments. We'll be in recess. THE COURT REPORTER: Thank you, Judge. (Thereupon, the hearing was concluded at 1:06 p.m.) Palm Beach Reporting Service, Inc. EFTA00804694 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT CERTIFICATE STATE OF FLORIDA : SS COUNTY OF PALM BEACH ) I, LINDA P. AUKAMP, RPR, 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 November, 2018. LINDA P. AUKAMP, RPR Palm Beach Reporting Service, Inc. EFTA00804695