DS9 Document EFTA01070213

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JEFFREY EPSTEIN, Plaintiff, vs. IN THE CIRCUIT COURT, 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50 2009 CA 040800XXXXMBAG SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, And L.M., individually, Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * * * HEARING BEFORE: HONORABLE DAVID F. CROW DATE TAKEN: July 13, 2011 TIME: 10:34 a.m. to 4:45 p.m. PLACE: Palm Beach County Courthouse 205 N. Dixie Highway, Room 9C West Palm Beach, Florida 33401 REPORTED BY: Kathleen M. Ames, RPR ORANGE REPORTING 800.275.7991 EFTA01070213 Page 2 1 2 3 APPEARANCE S: JOSEPH L. ACKERMAN, JR., ESQUIRE CHRISTOPHER KNIGHT, ESQUIRE OF: FOWLER, WHITE, BURKETT, P.A. 1 2 3 motion to dismiss on the, I guess, it's the second amandad complaint. MR. ACKERMAN: It's the amended complaint, be the 4 901 Phillips Point Mast second complaint. 777 S. Flaglor Drive 5 Nest Palm Beach, Florida 33401-6170 S THE COURT: Which I've read in detail the motion. 6 MARTIN WEINBERG, ESQUIRE 6 Also, I think, pending is still the motion for punitive 7 OF: MARTIN MEINBERG, P.C. 7 damages in regard to the counterclaim and I don't think 20 Park Plaza, Ste. 1000 8 Boston, Massachu➢aaaaa 02116 8 there is any other motions pending in regard to the 9 JACK A. GOLDBERGER, ESQUIRE 9 pleadings, are there? 10 OF: ATTERBURY, GOLDBERGER 4 WEISS, P.A. One clearlake Centre, Ste. 1400 10 KR. SCAROLA: There are not, air, no. 11 250 Australian Avenue South West Palm Beach, Florida 33401 11 THE COURT: Okay. I mean, I think I'm here to 12 APPEARING OX BEHALF OF THE PLAINTIFF 12 talk about all of those so why don't we start with the 13 13 motion to dismiss because that kind of gets the thing 14 JACK SCAROLA, ESQUIRE 14 rolling so start there. It's your notion, Mr. Scarola. 15 or: SEARCY, DENNEY, SCAROLA, BARNHART 4 SHIPLEY, P.A. 15 MR. SCAROLA: Thank you, Your Honor. With the 16 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 16 Court's permission, may I address the Court from a seated 17 APPEARING ON BEHALF OF DEPENDANT, EDWARDS 17 position today? 18 18 THE COURT: Yea, I prefer you do that. 19 19 KR. SCAROLA: Thank you. Your Honor, this case 20 21 20 21 started out with a thirty page, seventy-nine paragraph, five count complaint that read more like a press r aaaaaa 22 23 22 23 than a legal pleading. And was the source of substantial procedural difficulty, as a con➢equence of the imprecision 24 24 with which an effort was made to embroil Bradley Edwards in 25 25 the Rothstein Portal schema. We have moved from that Page 3 Page 1 KR. SCAROLA: Good morning, Your Honor. 1 massive effuse press release to what is now a nine page, 2 MR. KNIGHT: Good morning, Your Honor. 2 single count abuse of process ca➢e. The state civil remedy 3 4 THE COURT: Okay. We're here on Epstein versus Rothstein, et al. I want to thank the party that sent ma 3 for criminal practices count gone. The state RICCO claim gone. The fraud claim gone. The conspiracy claim gone. the whole list of motions and I appreciate it very much. S And a whole new abusive process claim has now boon as➢erted 6 And I did have a chance to go through moat of the stuff 6 very different from what w➢ mare looking at previously. 7 and, quite frankly, it's kind of hard to get my arms arou 7 Indeed, the only allegation that attempts to associate 8 10 11 this. There i➢ a lot to do. Ny thoughts is to first kind of set-up a schedule to determine where we should go today' In term➢ of starting In one place and where we're going to go. And seems to Mr the first place to start is try to get 8 10 11 Bradley Edwards with anything having co do with Rothstein is a claim that appears in Paragraph 20, which says, essentially, because so many MA personnel, Rothstein, Rosenceldt, Adler personnel, were involved in the 12 the pleading➢ in order, in terms of the notions that are 12 pro➢ecution➢ of what were, obviously, very meritorious 13 14 pending that have not been ruled on. Then I would like to find out, I mean, I read the, at least, the interim report 13 14 claims on behalf of th➢ child victims of Mr. Epatoin's criminal molestation, because ➢o many RBA personnel mare 15 16 from Judge Carney. Is It Judge Carney? And I want to find out what the status of all of that is. And then I guess 15 16 Involved in the prosecution Edward, quote, •know or rea➢onably should have known that hi➢, Epstein's case 17 the beat way to precool, unless somabody has a better 17 files, were being shown and touted to investors.• 18 alternative, i➢ to start with the motions in some type of 18 Now, no allegation that he knew or reasonably should 19 chronological order. But before that, to kind of get an 19 have known that they were part of a Ponzi schem➢ but on the 20 21 opening from both sides as to where they foal or why they foal the➢e various issues should be decided in their favor. 20 21 non ➢equitur assertion that becau➢e there wore a lot of nipple involved in these very important, very big cases. 22 23 I know they are varied but just to give ma some general background in terms of the ca➢e. 22 23 Mr. Edwards knew or reasonably should have known that semitone wa➢ trying to attract investor➢ to fund the 24 Having said that then, unless somebody has a better 24 pro➢ecution of these claims. 25 alternative, I would like to start with there is a pending 25 The first element of a motion to dismiss relating t ORANGE REPORTING 800.275.7991 EFTA01070214 Page 6 Page . 1 allegation is ao what. A law firm has every right to raise 1 They don't nako that claim. 2 funds co prosecute legitimate claims on behalf of its 2 Paragraph 27 says the defendants embarked a schema to 3 9 clients. And if all Bradley Edwards know, which he didn•:. but we must cake the allegations of the complaint as true. 3 interfere. with the non-prosecution agreenent, quote, •for the purpose of upping the stakes of cho litigation." sou. if all he know was, because there were a lot of people S the non-prosecution agreement is the agreement that 6 involved in cho prosecution of chose claims, he must hay., 6 Mr. Epstein encored into with the federal government : 7 known chat his files were Doing shown co and touted to 7 allowed hin, what we and our clients, or Mr. Edwards 8 investors, chat, certainly, can't Corn cho basis of any cause of action. 8 9 clients contend, was an improper and sweetheart deal. attempting co challenge unsuccessfully, at toast thus fa. 10 11 Lot's cake a look at what this conplalnt says Bradley Edwards did chat constituted abuse of process. 10 11 unsuccessfully, a non-prosecution agreement on the to, that the victim had a right under federal law to be 12 THE COURT: Lot me lust say off the top hero chat 12 consulted regarding that agroomonc, which right was never 13 19 I have ono probiom with the complaint because it lumps defendants together in numerous allegations without 13 19 afforded co then. Attempting co challenge a non-prosecution agreement could not possibly be abuse of 15 16 differentiating as to any of the defendants which ono did what, if any, or all did. 15 16 process. And co the extent that there might be soma assertion 17 MR. SCAROLA: Your Honor has anticipated ono of 17 that this was cortious interference in an advantageous 18 the points that I would make and chat, clearly, is ono. 18 business relationship, the law is very clear, and I'm 19 But even assuning that all the defendants did all of the 19 prepared to cite the cases to Your Honor, if it's 20 21 things that are claimed to have been done by the defendants, plural, lot's take a look ac what they say 20 21 necessary. I don't know that this is going to to challenged. That unsuccessful interference is not 22 23 Bradley Edwards did. In the introductory paragraph they say chat he is liable for abuse of process because of four 22 23 actionable interference. A case calling Schaller versus American Medical International. So the allegations about 29 things. Ono, he engaged in unreasonable and vexatious 29 the non-prosecution agreement, I suggest, are an absolute 25 discovery within cho context of claims that aro never 25 nullity. They can't constitute an abuse of process. Page 7 1 assorted co have boon anything other than legitimate 1 Lot's go on to Paragraph 29, because that's whore 2 claims. So ono is unreasonable and vexatious discover, . 2 presumably an effort is made to set out what the 3 the introductory paragraph not specified in any way. 3 unreasonable and vexatious discovery la. Paragraph 29, 9 The second is making unfounded allegations in lawsuits on behalf of his clients who had Lintel/nor. S Sub-paragraph One talks about asking three airplane pilots Inflannacory questions during the course of the depositions 6 claims. 6 of those airplane pilots. Asking questions is not an abuse 7 The third is using improper investigative tools. 7 of process. Asking airplane pilot questions cannot 8 And the fourth, interfering with a non-prosecution agreement. 8 9 possibly have a causal connection co cho damage that is alleged by Hr. Epstein in this case. 10 11 Now, of those four generally described elements of wrongful conduct, the only category that could possibly 10 11 Curioualy the damages have also changed dramatically. We aro now cold that the damages constitute foes and costs 12 involve process, which moans the filing of a complaint, the 12 Incurred in the underlying litigation, any claim for which 13 19 filing of an answer to a complaint, the filing of some pleading or a subpoena. The only category that could 13 19 was released in the underlying litigation. No will ask the Court co cake judicial notice of the orders of dismissal of 15 16 encompass abuse of process arguably could be engaging in unreasonable and vexatious discovery. And we're going co 15 16 the three underlying claims, which require the parties co those cases co boar their own attorney's fees and costs. 17 look at what they claim the unreasonable and vexatious 17 Mr. Epstein, having stipulated as part of the settler.,.- 18 discovery was in just a moment. 18 that he was going to boar his own foes and costs, cannot 19 Me know from Paragraph 17 chat the claims wore not 19 claim as danages, in this case, foes and costs incurred In 20 21 initiated while Mr. Edwards was an employee of RRA. Paragraph 17 tells us that he brought these legitimate 20 21 the underlying litigation, if they could possibly form the basis of any claim of liability in light of the broad 22 23 settled for vary large sums of money voluntarily by the plaintiff. He brought those claims with him to the law 22 23 litigation privilege that exists in the state of Florida. Lot no address that very brlofly. If I may approach 29 firm. So it's not the filing of the claims themselves 29 the bench, I want to provide the Court with a copy of the 25 that's anywhere alleged co have been an abuse of process. 25 Florida Supremo Court decision in £chevarrla, ORANGE REPORTING 800.275.7991 EFTA01070215 Page 10 1 2 3 E-C-H-E-V-A-R-R-I-A, vs. Echevarria. That is the most recent Florida Supremo Court decision addressing the litigation privilege. It contains an excellent discussle. 1 2 3 conduct that is allege! to have occurred here in Paza.p.ip,-, One, which isn't conduct involving process in any case. Paragraph 29, Two, notifying Epstein of an intent to 9 of the Court's view of the scope of that privilege. And 4 depose his high-profile friends. Tolling somebody I'm 5 upon review of that case Your Honor will find that the S going to depose your friends isn't process. Issuing a Supreme Court has clearly and unequivocally hold that 6 subpoena is process. Serving the subpoena is process. 7 conduct that occurs in the course of litigation is COVeir:, Notifying somebody that you're going co depose his friends, 8 by the absolute litigation privilege. The Court finds, 8 that's not process. a matter of public policy, that it would be inappropriate 9 Asking Epstein outrageous questions in his deposition, 10 to allow the assertion of independant claims for conduct 10 Sub-paragraph number Three, that's not process. 11 that occurs within the course and scope of litigation. 11 Sub-paragraph Four, requesting records from the federal 12 That there aro other available remedies, including ethics 12 government regarding communications between the government 13 complaints against lawyers involved in such conduct, 13 and Epstein lawyers. This is whore the tortious 19 including contempt proceedings and the imposition of 19 interference with the non-prosecution agreement is alleged 15 sanctions, which appropriately can control that conduct. 15 to have occurred because requests aro made to find out 16 And allowing the assertion of claims in independant actions 16 about communications between Epstein and the federal 17 for conduct that occurs in the course and scope of 17 government with regard to the vary criminal activity that 18 litigation would have an inappropriate and improper 18 forms the basis of the civil lawsuits that Mr. Edwards is 19 chilling effect. 19 legitimately prosecuting on behalf of the child victims of 20 So in light of that broad privilege, anything and 20 Mr. Epstoin's criminal activity, clearly, could not 21 everything that is asserted to have occurred in the context 21 constitute abuse of process. 22 of the underlying claims, such as asking three airplane 22 Paragraph Five, quite frankly, I just don't 23 pilots inflammatory questions, first of all, does not 23 understand. 29 involve an abuse of process. And, secondly, is privileged 29 Paragraph 29, Five, reads the representative of : 25 conduct. 25 trustee for RRA's bankruptcy stated that there are Page II Page 1 Next paragraph, Sub-paragraph Two of Paragraph 29. 1 thousands of documents involving RRA'a employees and 2 Notifying Epstein of an intent to depose his high-profile 2 government officials, including state and federal law 3 friends. 3 enforcement authorities relating to Epstein. What does 9 THE COURT: Let me just ask you, I've not read, that mean in the context of this abuse of conduct claim 5 quite frankly, the Echevarria case but does it still star , S against Bradley Edwards? It just doesn't make any sen•, 6 for the proposition that for there co be a litigati-, 6 I can't respond to it because I clearly don't understand 7 privilege it must be related to the legal proceeding 7 It. 8 itself? 8 Six is requesting records from Dr. Bard who It is 9 MR. SCAROLA: Yes, sir. 9 claimed didn't treat Mr. Epstein. Moll, okay, so what. 10 THE COURT: It can't be something like -- okay. 10 guess ono way co find out whether he treated Mr. Epstein is 11 MR. SCAROLA: If I wore to issue a subpoena to 11 to subpoena any records that he has about Mr. Epstein. 12 Mr. Edwards for the sole purpose of causing him to miss an 12 Subpoenaing records from a physician is not an abuse of 13 important business appointment where he was going to make a 13 process outside the scope of the litigation privilege. 14 lot of money and I'm requiring him co be in Court with no 19 Paragraph Seven, filing a second amended complaint 15 legitimate connection whatsoever to the litigation that's 15 alleging Epstein forced L.M. to engage in oral sex. F-.. 16 involved, that could constitute an abuse of process. Ono 16 of the litigation privilege clearly. 17 of the elements clearly is that it must be related to the 17 Attempting to depose celebrity airplane passengers. 18 litigation. But any conduct that occurs In relation to the 18 Clearly, within the course and scope of the litigation ig litigation is conduct that is protected by an absolute 19 privilege in the absence of any allegation that this . 20 privilege. 20 entirely unrelated to the prosecution of the claims again,: 21 There is a discussion of the Levin, Middlebrooks case 21 Mr. Epstein, which allegation appears nowhere. No such 22 where the Supreme Court makes clear that we're not just 22 allegation appears anywhere. 23 talking about statements made in the context of litigation 23 Hine, directing third-party subpoenas be used - 24 but all tortious conduct that may be alleged. So it's a 29 obtain Epstein's prescriptions from pharmacies. 25 vary broad privilege. It covers exactly the kind of 25 Now, it doesn't say that the third-party subpoena'. 12 ORANGE REPORTING 800.275.7991 EFTA01070216 1 2 3 4 Issued but if we can infer that they wore, this la cons..:' that clearly fails within the scope, of the litigation privilege. Paragraph 30 says that the defendants trespassed on Epstein's property and conducted surveillance of him. 2 3 4 S La4ards and continuo to assort his Fifth Amendment aIdf," .o to matters that aro relevant and material to the claims that ho is attenpting to prosecute. For, for all of those reasons, and if the applicability of the sword/shield doctrine is in any way challenged, I'll address that in my 6 without getting into the truthfulness of those al legation • 6 response. I don't know how it can be. But for all of 7 which must be taken as true, if the defendants trespassed 7 those reasons this is a complaint, an anondod complaint 8 on Mr. Epstein'a property, then chore nay be a cause of action for trespass. Thor* la no cause of action for abuse 8 which can, should and finally must be released. It must be dismissed. Thank Your Honor. 9 you, 10 of process because somebody trespasses on your property. Thor* is no cause of action for abuse of process because 10 THE COURT: Just ono second. Lot me road something here. 11 11 12 somebody decides that they are going CO Surveil you. 12 HR. SCAROLA: The motion co dismiss roaches those 13 Paragraph 31 says that Mr. Edwards tried to plead a 13 arguments through the incorporation of all of the arguments RICCO claim. So what. In the summary Judgment. 14 14 15 And Paragraph 32 says that ho tried to frooso 15 THE COURT: You must be sone kind of psychic. Mr. Epstein's assets. So what. That does not constitute HR. SCAROLA: I anticipated that is whore the 16 16 17 abuse of process and to the extent it night be 17 Court was going. The motion to dismiss, Your Honor, 18 characterised as a use of process in the context of the 18 expressly incorporates the arguments that were made dun:.. , 19 litigation on behalf of his child victim of Mr. Epstoin'a 19 the summary judgment hearing. And, clearly, one of the 20 repeated extensive criminal activity, it is covered by the litigation privilege. 20 principal arguments that was made in the summary Judgment hearing was an argument with regard co the sword/shield 21 21 22 There aro throe elements of danage that aro alleged. Foos and costs in the underlying litigation, which cannot 22 doctrine. I apologise for having intruded upon your thoughts. 23 23 24 constitute danages in this case. And the installation of 24 THE COURT: Go ahead. 25 an enhanced socurlty system, which presumably may have some 25 HR. KNIGHT: Your Honor, Christopher Knight on Page 1S Page 1 causal connection to the trespass on Epateln's property and 1 behalf of Jeffrey Epstein. And let no back you up as to 2 the conducted surveillance of him, but, certainly, has 2 whore we aro and why we aro. when we came into this 3 nothing to do with any abuse of process. And the retention of security personnel for Mr. Epstoin'a personal safety and 3 lawsuit there VAS the original complaint, which Mr. Scarola talked about and Your Honor was alloying us to move forward 4 4 to protect his property. Sow, chore is no possible causa. S with discovery before we amended the complaint, which from 6 connection between the alleged and privileged litigation 6 day ono we said we will bo amending the complaint to plead 7 misconduct and Hr. Epstoin's desire for privacy. 7 the cause of action that we felt was appropriate. We tried 8 Another significant problem that this complaint taco is that Hr. Epstein seeks to assort those claims by way o: 8 to go down chat angle but plaintiffs -- I mean, excuse MO, the defendants asserted privilege to pretty much each and 10 an amended conplaint when ho has repeatedly and persistently refused to provide any relevant or material 10 ovary docunont which we will over be able to got our hands on. We did get sumo limited privilege logs, which will 11 11 12 discovery as a consequence of the assertion of his Fifth 12 cone up in part of my argument, which is talks about . 13 Amendment privilege. We have previously cited to Your Honor a nunbor of cases, a substantial body of case law 13 the frivolity of this motion to dismiss. If they want to move for a notion for summary Judgment on down the lino if 14 14 15 relating to the sword/shield doctrine. Hr. Epstein is seeking affirmative relief. I don't challenge the validity 15 they have the facts after xy got the document, that's a horse of a different color. 16 16 17 of his assort ion of Fifth Amendment privilege. Thor* la no 17 But you asked us to -- first, let's take the 18 doubt in my mind that ho faces the potential of additional 18 discovery. Unfortunately between Hr. Rothstein not 19 criminal prosecution. There aro now claims that 19 able to be deposed, which we, of course, need to talk to 20 Mr. Edwards himself has placed the defendants on notice that ho is about to filo so there is no doubt about the 20 Mr. Rothstein about what Mr. Edwards' involvement was, and their blanket assertion of privilege -- 21 21 22 fact that Hr. Epstein faces additional potential criminal liability and has a right to assort his Fifth Amendment 22 THE COURT: Let me back up. I don't -- I directed you co do discovery. I think I questioned why 23 23 24 privilege against self-incrimination. But the case law is 24 there was never a motion to dismiss co the original 25 absolutely clear he cannot coda to this Court, sue Bradley 25 complaint and I said but this is the complaint we have t, 1 ORANGE REPORTING 800.275.7991 EFTA01070217 6 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 18 dual with. And I can't tell from reading this thing whet in the world cho cause of action is and it created a lot of problems In corns of what the scope of discovery was. Without knowing what you are suing for it's vary difficul' to figure out the scope of discovery and that's why I directed Mr. Ackerman to file an amended complaint so wo would be able co focus in on what is discoverable, what isn't, what cho cause of action is and that sort of thine. MR. KNIGHT: Correct. And then vo wont forward with what we had to date, which is a reasonable basis for abuse of process claim which has boon nade. The complaint on its four corners meets all the standards which are required. And chose are the cases that aro already Cited in our briefing and the response, is cho Donna Della case, which is the Sch DCA case out of 1987, and goes through the various factors, which leads to what I Rust give you, which is a little bit of background so that you have it. Hr. Epstein came over to the Rothstein firm with three cases. Excuse no. Mr. Edwards. Hr. Edwards came over to the Rothstein firm with three of those files. After he got to the Rothstein firm Mr. Rothstein, Hr. Edwards, and others used cho cases to pump up the Ponzi scheme. Tho documents chat we need and the privilege logs -- MR. SCAROLA: Excuse ma, Your Honor, I'm sorry. THE COURT: That's not even alleged. 1 2 3 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page , the complaint. And if there are, in fact, special damages, I think they have to be pled, as conpared to general damages. So I don't know whether you're asking for and it makes a big difference, ultimately, what, what -- if we get to the point of the discovery issue -- what the defendants can get Cron the plaintiff and vice-versa. I moan, if you're claiming damage to reputation, lost profit, I don't know what Sc is you're claiming. I don't know what Including but not limited to moans, quite frankly. HR. KNIGHT: Your Honor, lac no break these down. THE COURT: Okay. HR. KNIGHT: You brought up cho subject early on about lumping cho defendants together and there was an early paragraph which did so. The Paragraph 29, which Hr. Scarola wont through, is going through allocations relative to Mr. Edwards and if it needs to be divided out relative to Rothstein and Edwards, we will do so as it relates to damages. Tho lam under abusive process is oven nominal damages aro enough to survive for a Cause of -- THE COURT: Don't misunderstand, Counsel, I don't disagree with chat proposition that you allege damages that you claim are a result of this. What I 'n concerned about Is you have thrown in the kitchen sink in that, which is included not Salted, does that moan you're claiming other damages or not claiming other damages? I don't know what 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Pogo 19 HR. SCAROLA: It is not alleged. And I cannot allow counsel co make those kinds of statements in open court in the presence of the press and leave them unchallenged. That's exactly what has repeatedly von.- In this case co besmirch Mr. Edwards' reputation. THE COURT: Let me stop you. What I'm about with this complaint, okay, and what concerns me is that there aro allegations that the defendants did this, the defendants did this without specifying who did what to whom and why. It seems CO me if you are going to Sue Mr. Edwards or anyone else, for that natter, you need to be specific as co what he did or what you accuse him of before I -- I diginia9 routinely complaints like this, which generically say the defendant did sonaching without specifying who did what to whom and why. Because it does not spell out what your claims are I don't know what Mr. Rothstein did. What Mr. Edwards did. Or -- and you also say and others. Who? I don't know who they are. And the ocher problem I have with lc, aside from, I think there aro soma other issues, but your prayer for damages is specific as to some things but also has that, that, that, phrase that, that we all, you know, perk up our ears on, including but not limited co, which loads ma to believe there is something else there chat you're claiming in terms of danages, which is not, in fact, spelled out in 2 3 S 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Paco .:,: that means. MR. KNIGHT: At this time we're claiming the three areas of specified damages which we wont into but the reason that catch-all is in there is goes back to this whole Issue relative to the documents that vo have boon unable to receive. Wo believe that chore will be other damages that naybo would to asserted at chat time. If Your Honor is saying what he would rather have us do is once we gat the documents, amend again, I fully understand. We can do so. But at the saw time we don't want to be precluded from being able to move forward with our cause of action. The abuse of process cause of action is spelled out in all four corners under the Della Donna decision and, also, the SCI Funeral comments relevant to lc, which have boon provided in cho earlier briefings. Hero at the motion to dismiss stage chat is where we, that's what the Court needs to look at, as we have discussed. The areas relative to litigation privilege, which Mr. Scarola went at length into, deals with tortious interference causes of action and do not deal with abuse of process. It would be nonsensical for abuse of process to have a privilege because, therefore, you will never to able to bring a cause of action for abuse of process. THE COURT: Let me disagree with you. I th: that the litigation privilege would go co any process ORANGE REPORTING 800.275.7991 EFTA01070218 Page 22 1 2 3 president of the United States in a case just to get, for 4 ➢Mp rea➢on, unrelated to the purpo➢e➢ of the litigation. 5 So, I mean, there is, I read thane cane➢. Unless this hi - 6 changed the law. At leant, it allow➢ abuse of process In 7 civil litigation if, in fact, the processes aro not for 4 8 legitimate purpose. 9 10 served in the litigation that's relevant to the litigation. It doesn't give you the right to go out and subpoena the HR. KNIGHT: If the unrelated areas are -- THE COURT: His point was how can these be 11 Illegitimate, I think is what his point was. 12 KR. KNIGHT: If that's his point but what I was 13 tilting he was using the cases of tortious inte1ference. 14 is tort it is. I think the litigation privilege applies 16 whether it's libel, slander, tortious interfe2ence, you 17 know, abu➢e of process, malicious prosecution, all of thane 18 there is a litigation privilege as➢ociated with that. And 19 it's a natural privilege. That's how I understand the law. 20 I may be misquoting it but that's what I understood the law 21 is. 22 THE COURT: I don't think It matters what HR. KNIGHT: Understood. And the allegations 23 which are in Paragraph 29 go into some of those areas which 24 25 are outside, including Mr. Edwards' own deposition. I mean, in his lawsuit, his clients wore never on these 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that is abuse of process. This is at the point or allegations without us being able to get discovery. The allegations we have put into Paragraph 29 in specificity, especially, when you gat into Paragraph FOOT under, under 29, which deals with Mr. Edwards going to the Court relative to what should be something relating to the three lawsuits that he has, when what it really is undermine the non-pro➢ecution agreement. any is that relevant to abuse of process? Hell, all that is being used for is to find a way to ramp up our client relative to other worries, which are unrelated to the prosecution or those individual victim canon so that he ands up having to be in a situation where he has to pay exorbitant dollars, which othorwlse would multiply what the amount of the actual value of those underlying cases otherwise would be. The complaint itself goes through all that is required under Dona Donna. THE COURT: I presume in those underlying canes there were Claims of punitive damages; SO that correct. KR. KNIGHT: There are claims of punitive damages, correct. THE COURT: Okay. HR. KNIGHT: By the same thing, even looking into that, the efforts to freeze assets, things like that. There wan no indication at any paint that Mr. Epstein would be unable to cover whatever the compensatory damages and, 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 airplanes yet they went forward and took the depositions of these pilots, et cetera, on the airplane causing excess fees. And really what this was being used for is to be able to gain information which could be used in the underlying promotion in the Rothstein cases. And that's why I brought it up earlier when I was interrupted by Mr. Scarola. It is relevant to what we're talking about today. This is a matter whore Mr. Edward➢' deposition said I hid very little contact with Mr. Rothatein. But at the same time we learn once we get to the privilege log and also the only time he dealt with Mr. Jenny was when Mr. Jenny, who is the investigator approached him, that they are claiming privilege related to, we counted it up, dealing with eighteen to twenty attorneys, nine paralegals, plus investigators. HR. SCAROLA: Excuse me, Your Honor, I thought w! intro arguing the motion to dismiss and not the privilege issue. HR. ACKERMAN: I am. But Your Honor's specific question -- I would ask Mr. Scarola to hold his arguments -- but Your Honor's specific question dealt with what are these areas which are outside of the tort or whatever is being sued on. And it those aro being done for some purpose other than the underlying litigation, which were the L.N. and the Jano boo and B.N. cases hare, than 1 2 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 2' if punitive damages were ever to be allowed, any type of punitive award. All of this was done to ramp up these cases outside of these three, which were the ones that Mr. Rothstein, and as WO 90t through discovery, we believe Mr. Edwards wore using to sell to the various Investors to ramp up the Para'. scheme. They are tied together. Tho. are In the same firm. These are the lawsuits that wer. used when the various investor➢ came into the office with Mr. Rothstein. Mr. Edwards is claiming, I believe, that I had no idea that this was going on with my lawsuits. Although, we know in the privilege log they're claiming that he's dealing with the eighteen to twenty attorneys, the nine paralegals and the investigators. They just don't add up bath ways. But relative to what we're here on today, the motion to dismiss, this amended complaint does plead a cause of action under Florida law. If Your Honor wants us to qo back and plead with more specificity relative to where Mw put in defendants, we will do so. I would suggest it would be better for us to be able to get the discovery. And the reason we have so many people here is we have Mr. Weinberg here to represent -- to talk about privilege issues. Nr. Ackerman to talk about various 1.221,00 that may coma up, including sword and shield. Get to those so that we don't constantly have to be coming back to the Court. 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soyaoue so Ammo, os 'espy p060//e coney nod unit '01 cc aeVa 6ulop so otrodind huo ega "aae; u, 'n "morn Ou m 'ayee/ ae Imemod Jo 'uncle OP Le« OUOI, UOPI, OP, Se ouTmwe moya pue Apogee°, 6memodons TenaDe ey/ -meemd 10 ouncre op SOU Arms Jteval so pue ul uotaisonb oya 'nod Mae &coma tenOtia uono 'mom pUeluaopun I ,peou / ./ wEoulya eceVi ;0 epos arm, ape; OP1 os MeedS :SUP03 • oA queu -po/um coq mnoy, umuncip oa umaou ma pue net epcaotd aopun uoIape ;0 Dyne, e pee/d soap ameldwo, 5IT11 9Z Med SZ PZ EZ ZZ TZ OZ 61 81 LI 91 SI PI ET ZS TT 01 6 L 8 S E SZ PZ EZ ZZ TZ OZ 61 81 LI 91 SI PI ET ZT TT 01 6 L 8 EFTA01070220 Page 30 1 2 3 4 filed this defective complaint because wo haven't gotten the discovery that will enable us to filo an appropriate complaint. You need to have the haat:, co sue first. And you need to state a viable cause of action first. You don't excuse obvious defects in your pleading on the basI L 1 2 3 4 5 weren't out chore putting all of this pressure on him. Well, that's, that's Mr. Edwards' job co maximise the value of his client's claims by putting as much legitimate pressure on the defendant as he possibly could and he, obviously, did an extremely effective job. 6 that you haven't yet gotten the discovery that you hope , L 6 So this complaint clearly needs co be dismissed on all 7 going to provide a basis for soma cause of action and I 7 of those grounds that we have asserted. And one thing that 8 don't know what it is. What Echevarria says is, quote, the Levin case the Ilth Circuit certified a question to 8 9 Is not addressed at all in the argument that we just hoard Is the sword/shield problem that they have. Nag, this is 10 11 this Court asking whether Florida's litigation privilege protects the acts of certifying to a trial Court an intent 10 11 an amended complaint so xy know the sword/shield issue exists because we've already deposed the defendant. Exc 12 to call opposing counsel as a witness at trial in order to 12 We've already deposed the plaintiff. 13 14 obtain counsel's disqualification. And later failing to subpoena and call that person as a witness from a claim of 13 14 THE COURT: Let me tell you, Hr. Scarola, I'm going to dismiss the complaint based upon that at this 15 16 tortious interference with a business relationship. Answering in the affirmative we extended the litigation 15 16 stage. The reason, vary simply, is that we can't really know what the sword/shield doctrine applies to until I know 17 privilege co all torts finding that absolute immunity nest 17 what the lawsuit is about. And I don't know what the 18 be afforded co any act occurring during the course of the 18 lawsuit is clearly about at this point because there's 19 judicial proceeding, regardless of whether the act involves 19 certain things, obviously, that he can object to and :' 20 21 a defamatory statement or other tortious behavior. And here's the qualifications that Your Honor referenced 20 21 not making that determination at this point in time. I am going to dismiss the complaint with leave to 22 23 earlier. So long as the act has some relation to the proceeding. 22 23 amend, however. I find soma serious problems with the complaint. Specifically, number ono, that you have lumped 24 There is no allegation anywhere in this amended 24 together the defendants and it's not, it's not, in my view 25 complaint that any of these acts had no relation to the 25 not a, not a basis to make vague allegations that are Page 3: Page 1 pending claims against Mr. Epstein, which most clearly 1 nonspecific co a particular defendant because you haven" 2 included claims for punitive damages. 2 gotten some privileged documents yet. 3 4 And the fact that airplane pilots are not asked a single question about the particular victim in the camas 3 Because you got to coma out, if you think this gentleman, or anybody, has made, committed a tort, then Doing prosecuted doesn't mean that what was going on on 5 have to allege it and then you get co the discovery trL . 6 those airplanes on a routine basis that formed part of a 6 you want. The abuses of process, if they occurred in th:- 7 pattern of criminal activity on Hr. Epstein's part was ne, 7 case, occurred. They're not privilege. They occurred as 8 relevant and material to the punitive damage claims that were being investigated and prosecuted legitimately by 8 9 part of the lawsuit. Now, Hr. Edwards' involvement or lack of involvement 10 11 Mr. Edwards. The fact that he took an aggressive, thorough approach on behalf of his clients. And cook discovery 10 11 In soma alleged Ponsi -- not alleged Ponsi scheme, I guess It's a fact it's a Ponsi schema by Hr. Rothstein, that 12 reasonably calculated to lead to admissible evidence. And 12 may be subject co all of these privilege objections and 13 14 there is no allegation that any of this discovery was not reasonably calculated to lead to admissible evidence, those 13 14 how -- whether he was involved or not involved and what he did or didn't know and all of that kind of stuff. But the 15 16 allegations do not appear without specifically alleging the exception recognised by the Florida Supreme Court, this 15 16 process was in the lawsuits. You have co know at this point in time what he did or didn't do that was an abuse of 17 complaint fails. And it is no excuse co say, maybe I'm 17 process. I don't know how you can't know at this point in 18 going to find some evidence somewhere that allows me to 18 time because it either, it was either calculated to do 19 assert soma legitimate cause of action, if you allow ma to 19 something with that litigation or it was abuse for that 20 21 proceed with discovery on a case -- on a pleading that does not state a legitimate cause of action. 20 21 litigation. MR. KNIGHT: Your Honor, we will re-allege with 22 23 we start hearing again about the theory of damage that no longer appears in this complaint. That is Mr. Epstein 22 23 more specificity. Thank you. THE COURT: Wow much time do you need? And it's 24 had to pay more to settle these cases than he otherwise 24 been a problem with this case from day one, okay. And I 25 would have had to pay to settle these cases if Mr. Edwards 25 know I've mentioned it several times before without 3` ORANGE REPORTING 800.275.7991 EFTA01070221 1 2 3 9 Page getting, knowing what it is that we're litigating. it'➢ very difficult to make decisions an all of these other issues you guys are talking about, including sword and shield, including privilege, including whether or not, yo. 34 1 2 3 Page 3, punitive damages on the counterclaim, is that? HR. SCAROLA: Yes, air. THE COURT: Let ma, I don't want to take your time, Mr. Scarola, and let ma tell you what I'm going to don know, Mr. Edwards has to answer questions or Mr. Epstein 5 on that. I'm going to deny the motion. I already heard an 6 has to answer questions, unless we know exactly what, 6 argunent on it. I already read ➢or of the materials. And 7 number one, the claims are against -- what the abuses are. 7 here's the reason I'm denying the motion at this point, and 8 And let me back up. Some of these things the way you've alleged them, at 22222 in my view, are not abuse of process 8 9 It's without prejudice. The rule, and I think it's Rule 1.190. Is that it? Was -- yeah. 1.190, which is the 10 11 as a Matter of law. The mere threatening of doing something without doing It, I don't -- unless you get a 10 11 rule an amended and supplemental pleadings, was amended in two thousand, I believe, 2003 pursuant to Florida Statute 12 case that says that's abuse of process, I don't see how it 12 168.72 to give guidance as to haw you go about doing this. 13 19 is. The others, I think, could be if they're alleged 13 19 And the footnotes to the Civil Rules of Procedure -- and this is a problem we had before this rule came out -- cites 15 16 properly. If you're taking a deposition and asking questions in that deposition for the sole purpose of what 15 16 to, it says that subsection is amended to comply with the case of Beverly, Beverly Health And Rehab LLLLLL ion 17 you have alleged here or for the purpose unrelated to 17 Services, Inc. versus Meeks. And I had been applying this 18 actually prosecuting the litigation, then I think that can 18 case before they actually incorporated it into the rules, 19 be abuse of process. 19 but that case specifically said, it set up a procedure, at 20 21 But the mere notifying somebody, I have trouble understanding how Paragraph Five is an abuse of process. 20 21 least, in the Third District for notions for punitive damages. And I'll quote from paragraph -- I don't know 22 have trouble understanding attempting to conduct discovery. 22 what page it is hare. But, basically, says this -- and 23 Or, I mean, sone of these I just don't see how actionable. 23 I've been applying this in the past, as well. Accordingly, 29 So I think you need to, to plead it more specifically. 29 it is and shall be the practice of this Court to require a 25 And, also, I think you need to specify. The Included 25 written ➢unwary of the evidentiary proffer with appropriate Page 35 Page 3 1 but not limited to damages doesn't cut it. If you got 1 page and line citations, deposition testimony, affidavits 2 special damages, I think you have to plead them. Now, you 2 need to be filed and served in advance of the hearing ➢a 3 9 can always amend, if you find out there are other damages down the lino that you have not claimed. 3 the defendant will have a reasonable opportunity. The motion doesn't do that. But see, ono of the issues in this case la going to I , 5 HR. SCAROLA: It deal', ➢ir, respectfully. 6 what your damage claim are may have something to do with 6 THE COURT: I pulled it. The ono sitting here 7 what discovery is or is not calculated to lead to 7 doesn't have it. 8 admissible evident* In this case. So I'm granting the motion with leave to amend. How 8 9 HR. SCAROLA: May I call the Court's attention to the very first paragraph of the motion that says the 10 much time do you need? 10 counter-plaintiff, Bradley J. Edwards, moves this honorable 11 HR. KNIGHT: Thirty days, Your Honor. 11 Court for an entry of order granting him leave to assert 12 HR. SCAROLA: No would object to thirty days, 12 claim for punitive damages against the counter-defendant, 13 19 Your Manor. This case has been going on for a very long time. This is now a single count complaint. Ton days 13 19 Jeffrey Epstein. And in support thereof would show that the record evident* presented to the Court in support of 15 16 ought to be more than adequate to get this filed. THE COURT: Well, I'm going to go ahead and give 15 16 Edwards' motion for at. mazy judgment satisfies every statutory prerequisite for the assertion of a claim for 17 you thirty days to amend. okay. The next issue, I guess, 17 punitive damages. That summary judgment motion, If Your 18 on the -- 18 Honor recalls, includes an extremely detailed recitation of 19 HR. ACKERMAN: Your Honor, I've got soma blank 19 record evidence and, Specifically, cites to page and line 20 21 orders on all of the motions. Do you want -- THE COURT: Well, I'm going to ask you guys to 20 21 musters in supporting depositions, to specific paragraphs in supporting affidavits, and, clearly, by virtue of what 22 23 fill them out for me. It would make it easier for ma. Okay. 22 23 is presented to the Court and incorporated by reference every conceivable requisite far a proffer is incl,.^, 4 29 HR. ACKERMAN: Okay. 29 that incorporated summary judgment motion. 25 THE COURT: The next one is the motion for 25 NOV, if what Your Honor wants us to do is to ; ORANGE REPORTING 800.275.7991 EFTA01070222 1 Page that summary judgment motion back again and change the 38 1 Pau* 4 bit. 2 title on the summary judgment motion to aay now It's a 2 THE COURT: Okay. 3 4 proffer. THE COURT: I want you to make a motion pursuant 3 MR. ACKERMAN: Okay. Your Honor, when this matter ➢tarted, and I know you've heard some of it but to what I have just said. I don't want any incorporated 5 because it's boon awhile, I would like a little latitude. 6 things, you know. The same thing with your motion to 6 THE COURT: Sure. Ne got the day ao I'm here. 7 dismiss. You know, when you incorporate something else 7 MR. ACKERMAN: Initially when this case began the 8 that doesn't work for me. I need it in front of me. I line I it 8 9 prior law firm representing Mr. Epstein issued a subpoena to the bankruptcy trustee that wa➢ in possession of record➢ nand the page, no can read as a motion. 10 11 HR. SCAROLA: Do you really want that box of material back again? 10 11 that we believe were related to this lawsuit. Okay. That met -- were relevant to the claims that had been plod. At 12 THE COURT: I got the box. I aavod the box. 12 that time Hr. Scarola did not object to the issuance of the 13 14 knew this was coming. I got the box. I need your motion. I need it to be specific because your summary judgment 13 14 subpoena and I have that here. Okay. When the subpoena wan ➢erved on the bankruptcy trustee we then had four or 15 16 motion dealt with a lot of other stuff, too, not just with the evidence for punitive damages. Okay. And the other 15 16 five or nix motions filed on the grounds of privilege. And since the bankruptcy trustee controlled and was directing 17 thing wan that on the aummary judgment motion, If I recall 17 those matters before Judge Ray a special master was agreed 18 right, one of the reasons I denied the motion was discovery 18 by the party to bo appointed. 19 not being completed at this point, if I recall. 19 Now, also at that time -- and this is going to cam up 20 21 22 23 24 HR. SCAROLA: I think that was the only reason that Your Honor denied the summary judgment motion, which, obviously, would not be any legitimate opposition to a motion to aaaaa t a claim for punitive damages. THE COURT: Again, Hr. Scarola, we're going to do 20 21 22 23 24 in answer to one of these other motions -- one of the other creditors, razorback, had also ➢ubpoenaed substantially the same amount of documents. Substantially subpoenaed [h. same documents that wo had subpoenaed. And It was the:, understanding that they were going to be participating in 25 it my way. 25 this proceeding with Judge Carney. Now, each time we got Page 39 Page 4: 1 HR. SCAROLA: I understand. 1 up to a deadline than, was an order, order given to the 2 THE COURT: I want you to file your motion, set 2 Farmer firm and Mr. Edwards to prepare a privilege log. 3 4 it for hearing and I'll look at it. And then it goes on to say that what happens is the other aide, okay, this has to be done, at least thirty days, at least, this rule says 3 4 They were given niznerous extensions. THE COURT: Just so I understand. The Farmer firm is now where these cases are at or went to after the 6 thirty days before the motion, before the motion is set Co: 6 Rothstein -- 7 hearing. To give the opportunity [or the defendants to 7 MR. ACKERMAN: That'➢ correct. And that's where 8 filo something specifically in opposition, page and line and that way I can compare and contrast. That's the way I 8 9 Mr. Edwards is now. And they had lodged only privilege objections as to attorney-client and work-product materials 10 11 like to do it. And It makes -- it's easy when you have an alcohol related case or something like that. It's very 10 11 as to thin subpoena. When the special master was appointed we began a aeries of meetings and hearings to try and deal 12 complex in those cases and, you know, I just do not have 12 with the➢e special master issues. And what that ultimately 13 14 15 16 the ability to go back and do it. So I want you to do that. MR. SCAROLA: I understand the Court's direction. THE COURT: So that's without prejudice and file 13 14 15 16 culminated in was an agreement, a confidentiality agreement, where Mr. Scarola's clients would produce, approximately, five boxes of documents that wore designated work-product, attorney's eyes only, which meant only the 17 your motion. okay. Now, having said all of that, where 17 lawyers for Hr. Epstein could look at them. And what they 18 are we in terms of the trustee and bankruptcy and Judge 18 designated to be irrelevant decuments, which they believed 19 Carney and where are you at? Because I road his order and 19 had nothing to do with the ca➢e, but felt that it was 20 21 his order seems to say I agree with Judge Crow has to control the discovery in this cane but it runs the risk of 20 21 easier to produce them and put them under a confidentiality order so, and those were allowed to be shown to our client. 22 23 having conflicting orders. And I kind of agree with that, as well. So where are we at in terms of discovery with the 22 23 Now, if any of the parties believed that any of those documents were relevant or appropriate to be used In thin 24 trustee? 24 proceeding, they wore to take that to the special mast,. 25 MR. ACKERMAN: Well, we need to back up a little 25 THE COURT: You nay thin proceeding, you mean n, ORANGE REPORTING 800.275.7991 EFTA01070223 1 2' 1 2 3 9 6 7 8 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Page 42 proceeding? KR. ACKERMAN: This case, your case. Okay. Ar.‘i Choy were co be gone to the special naster. Nog, about that time we were arguing the notion for summary judgment . Counsel for Edwards had argued to Judge Ray that, wait, until the aunnary judgment notion is argued, defer ruling. All of those were denied. At ono point they had asked you co pull back the subpoena that had been issued on these natters and you denied that. So then Choy prepared a privilege log that was, clearly -- it's in our binder. There Is two privilege logs. THE COURT: Fortunately, I looked at it. HR. ACKERMAN: Tho first ono, clearly, doesn't meet any requirements regarding the privilege log so we filed notions directed to that. The spacial master ruled that you have co, at least, identify the people on it. We felt that the log was also inadequate, okay, for other reasons. And so the spacial master ordered a master list of the people, a master list prepared, which Is hare, that identified who the people wore. Okay. And in the meantime Razorback wont ahead and filed a notion before Judge Ray to participate in this spacial master hearing. Then we cane in court on a hearing (floc, by a non-party who, Spencer Kuvin, had argued that since he was 1 2 3 5 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Page 44 KR. ACKERMAN: X*. You did from subpoenas issued from this Court. THE COURT: It could have only boon your subpoenas or Hr. Scarola's subpoenas. KR. ACKERMAN: Correct. THE COURT: Screabody road ny order otherwise. They can continuo with any other -- HR. ACKERMAN: So, no, l'n not saying that. THE COURT: Okay. I'm sorry. HR. ACKERMAN: If I said that, what I'm trying to aay your stay applied to subpoenas issued from this CO41' to the bankruptcy trustee. THE COURT: Right. HR. ACKERMAN: Okay. And at chat point in time we ware at the point in time where you said we wore in the midst of the hearings that dealt with the amended complaint and that you needed to have the conplaint done. And xy had previously cold you that we had, we believed we had a good faith basis for this complaint. We could demonstrate that Rothstein was definitely guilty of a trine. We could demonstrate definitely that the Epstein case files wore shown to investors for the purpose of getting money that ultimately cane in to the Rothstein firn. We can show that Mr. Rothstein, and soma of these aro in the complaint, I'm not re-arguing that, but, we could show at that time chat 1 2 3 9 6 7 8 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Page 43 identified on the privilege log as receiving scow of these documents, ho was 904A9 CO assert a joint prosecution, joint defense typo of privilege. Now, when we WACO at th..' hearing, at that point in time the special master had generated his report. The special master had sot up a tit.o when we were going to go through, he was going to go through the documents with everybody in the room and, at least, eliminate the ones that are obviously not priviloo, which you can do by looking at this log. I mean, one can do, okay, by obviously looking at 1c. And than we were going to break thorn down into what issues related to what privileges because there was a different standard of proof that related co the different privilege. For example, it's the burden of cho plaintiff to establish the joint defense agreement and we wore going to do that. Now, as that was occurring, Kr. TACIT. CATO in and argued his position and the Court was stating Its position that you were in chorea of the privileges, which we agreed. And that you were in charge of discovery, okay. And you put a stay on any discovery to the special master and it effectively shut down the spacial master. I mean, you put a stay on any subpoenas to the bankruptcy trustee. THE COURT: From this Court? KR. ACKERMAN: From this Court. THE COURT: I didn't do anything to anybody else. 1 2 3 4 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Paco 4' Mr. Rothstein made specific representations to those investors about what he could do. And then we can show that Kr. Edwards carried those out. And that Mr. Edwards testified in his deposition that it was a very limited number of people Involved. And then what, in fact, occurred was chat Mr. Rothstein was fleeting with Mr. Edwards and the rest of the firm on this and they wore having meetings about it, thus, providing the link to the theory of our cause of action as the abuse of process. And the theory of abuse of process related co a misuse of the judicial systen. The use of these proceedings for seta other purpose, chat purpose to further this Ponzi soh,. It meant going after his friends individually. Putting -- taking stops and taking actions that had nothing to do with those, those victim camas. Now, at chat point in time we had subpoenaed the communications between Rothstein and the various investors, which is the first subpoena. And the second subpoena related to the law enforcement subpoenas. Because at that point in tine, for ono respect, Kr. Edwards has subpoenaed and has requested, we're going to got to it later, records between Kr. Epstein and the V.S. Attorney's Office. No has used those records as part of a sunmary judgment proceeding. We believe in the records chat have boon produced to us chat they specifically, particularly when ORANGE REPORTING 800.275.7991 EFTA01070224 Page 46 Page 4., 1 you look at soma of the items in the privilege log, that 1 In concerned, cho Court, you, have cho ability to determine 2 they specifically undertook the course of action to further 2 these matters yourself in terns of how it affects your 3 9 this Ponti scheme to interfere with a non-prosecution agreement chat had already been reached with the 3 ease. No is not going to be doing anything, and ho stated that on the record in ono of the proceedings in the government. okay. S bankruptcy court, that he's not going co be making an in 6 It's not a tortious interference claim. It's a claim 6 camera review. He's going to allow you co handle that 7 where they wore abusing the Court system by using discovery 7 process, okay. I moan, you as opposed co him ruling on the 8 mechanisms co bring about a broach or got the government to coma to regress or retreat from the agreement it had 8 9 privilege issue, is what I'm trying co say. Now, chat's pretty much where wo aro in terms of -- 10 11 entered into it after Mr. Epstein had plod guilty. Had served his tine. Nas on probation and already had 10 11 THE COURT: Let mo ask you a question before you proceed. If chore are other parties seeking these 12 substantial reliance and change of position on agreement. 12 documents for which there was a special master appoin:, 13 19 And that was done, we believe, to show investors what they were doing co advance this Ronal schen*. So when we sent a 13 19 why did my order, which merely stayed ny subpoenas, stop production of documents in the trustee if other people are 15 16 letter -- a subpoena, which la why chat is in the pleading, because it's evidence relating to the interference. This 15 16 seeking those documents for reasons unrelated to this lawsuit? 17 was a CVR cams. And that case was filed by Mr. Edwards in 17 HR. ACKERMAN: Here's what happened. Your order 18 2009, okay. At the time his cases wore pending with 18 stopped it for us. 19 Mr. Epstein. There is a long lapse of what occurred, okay, 19 THE COURT: I understand chat. 20 21 until these cases get settled. And then ho files a pleading in cho federal court and ho had represented in the 20 21 MR. ACKERMAN: Okay. And I have a copy of pleadings, if you need to see them. But Razorback -- 22 23 underlying case that the documents ho wanted regarding the law enforcement documents were necessary because they might 22 23 THE COURT: I read the ardor. I know what it says. 29 lead to other discoverable evidence in chat case. And then 29 HR. ACKERMAN: Razorback wont in there and said 25 in the CVR ease, which is pending before Judge Marra now, 25 we want to do a 2004 exam of Rothstein and we want these Page 47 Pogo 4 - 1 ho said I finally got the documents I wanted for the CVR 1 records. And the records are substantially the sane as the 2 case. So ho, in fact, misrepresented co a magistrate why 2 ones we wanted. They filed a notion co clarify this in 3 ho wanted chose documents. 3 front of Judge Ray, okay. And this is whore one of the 9 So then chore is an order encored by the magistrate 4 Issues came up that ho was not going co be ruling on a.._. that says any of the documents that were produced -- and : S that related co you. And I have in cho binder there : 6 have a copy of it hero -- any of the documents that were 6 transcript of the hearing where Mr. Scarola and his olio 7 produced pursuant to that order cannot bo used in any 7 agreed to produce the documents that they are now claiming 8 proceeding absent a ruling by the Court on those issues. 8 privilege on and have produced those documents to Now, some of chose documents have already been filed. Razorback. So the documents that we're seeking here : 10 11 12 THE COURT: Tho Court moaning? HR. ACKERMAN: You. THE COURT: Okay. 10 11 12 which they claim privilege, for which wo have a confidentiality agreement, they have produced voluntarl., to a third-party. No believe there's a waiver. Wo believe 13 19 HR. ACKERMAN: Tho sitting magistrate or judge for which cho documents are sought co bo used, okay. And 13 19 that invalidates the confidentiality agreement. And basically what happens is we're here arguing untold 15 16 those aro soma of the documents that aro in the summary judgment binders. Okay. And those were done for the 15 16 privilege issues when the very documents that we're seeking they have voluntarily turned over to a third-party 17 purpose of being able to bring -- to nako their summary 17 any issues of privilege. Without any issues or 18 judgment argument. 18 confidentiality. And that's what happened to ch.,. . 19 Now, when we got to that stage in April, based on the 19 documents wore curnod over and that's why that transcript 20 21 Court's ruling we -- the special master proceeding stopped. We indicated co the Court at that tine chat we believed 20 21 of that proceeding is in there because we're prepared to argue that many of the documents that wo have requested ter 22 23 29 that on its face some of these matters in the privilege log the Court can look at and rule on and determine that they were not privilege and they aro not waived and we were 22 23 29 which privilege claims have boon brought aro now waft., I And I've also asked to use some of cho documents, to , confidential documents because I believe it supports c 25 going to request cho Court to do that. As far as Judge Ray 25 cause of action and I believe that cho confidentiality ORANGE REPORTING 800.275.7991 EFTA01070225 1 2 Page 50 provisions are now waived. So the answer to your -- 1 2 Page files or materials, as well as anything for the new fii ,. are all, Farmer has all of those documents? 3 4 THE COURT: That makes it as clear as mud. I know -- just understand my frustration. It's very complicated when you, you know, you're telling me all at 3 KR. ACKERMAN: Those were documents that cat,— that the trustee picked KR. SCAROLA: Yes. 6 this and it's not really clear to ma. Let me ask a simple 6 KR. ACKERMAN: Yes. 7 question. The privilege here, the attorney-client 7 THE COURT: And they are in the hands of, in 8 privilege belonged to the c llllll , are they involved in this at all? I mean, is anybody protecting the rights or 8 9 addition, they are in the hands of the special master, he has those? 10 these women that were -- 10 KR. ACKERMAN: Right. 11 HR. ACKERMAN: Your Honor, Hr. Farmer and 11 THE COURT: Okay. 12 Hr. Edwards have asserted attorney-client privilege on 12 HR. ACKERMAN: Now, there is a third sot of 13 14 behalf of those clients but many of these privileges that they have aaaaa ted aro work-product. 13 14 documents, okay. They are called Otask and the Fortress documents, okay. Those are the soft aaaaa that managed Cho 15 16 THE COURT: Okay. KR. ACKERMAN: Or there is one with confidential 15 16 canon within the Rothstein firm. The trustee la still litigating to get those documents with Otask. The Ct:: 17 source so we have no idea. 17 has -- 18 THE COURT: Just so I'm understanding, are there 18 THE COURT: Who is -- help me out hare. Who . 19 two separate sets of documents, one is in the hands of the 19 0? 20 21 22 23 new law firm and the ones that are in the hands of the trustee and bankruptcy from the old Rothstein firm? HR. ACKERMAN: Yes and no. THE COURT: Yes and no. Okay. Coed. 20 21 22 23 KR. ACKERMAN: Otask is a company that supplied the software system for private communications and, al➢o, for case management to the Rothstein fire. We have received through exhibits and other depositions in the 24 HR. ACKERMAN: The first set of documents, okay, 24 bankruptcy case, that Rothstein used some of this sect“, 25 which were the subject of the first subpoena and our first 25 software communicationa to communicate with the investo:, Page 51 Page 1 request to produce, the trustee turned over those documents 1 and people in his firm about his ?anti scheme as related to 2 responsive to that to the spacial master and to the new law 2 the Epstein cases. 3 4 6 firm. The now law firm has also turned those documents over to Razorback. The second set of documents, which we're here on, relate to our subpoena to the trustee for law enforcement . 3 6 HOW, these records were subpoenaed and sought by the bankruptcy trustee frets a company named Otask. That company is owned and controlled by Lerner Rothstein lawyers, Bob Buechel, and others. They have bean ordered 7 Basically, communications between law enforcement agencle 7 by the bankruptcy court to produce those record. and have 8 and the PRA law firm. Those documents -- and those were the basis of a specific request identifying people -- and 8 9 failed to do ao and now are subject to -- and have been ordered under pain of contempt, including incarceration of 10 11 those documents have been gathered by the trustee on a disc ready to be produced. And they have not been turned over 10 11 the individuals, to produce those records. They have been punitive fines and attorney's fees for not 12 to anyone bacillar. the Court's stay order that said any 12 producing thee as of -- 13 14 subpoena directed to the trustee is stayed. So the trustee has not turned over those documents. Those 13 14 THE COURT: So we have three sets of document'.. am I correct now? Okay. 15 16 are in the possession of the trustee. THE COURT: Okay. So there are -- let Ina -- 15 16 HR. ACKERMAN: So that's ono of the reasons why in terms -- I understood your question as to the ones vo':o 17 there are two sets of documents then. The law enforcement 17 dealing but I Court with now need to alert the there 1. 18 documents, which are in the me aaaaa ion of the special 18 another group of documents that would be responsive to o 19 master of the trustee proceeding, right? 19 Initial subpoena but that the bankruptcy trustee would need 20 21 KR. ACKERMAN: The law enforcement documents are just in the possession of the trustee. 20 21 to produce when Otask and the Fortress dOCUMentS betas available. 22 THE COURT: Trustee. 22 THE COURT: Okay. So we have the Rothstein and 23 KR. ACKERMAN: Not the special mater. 23 Farmer documents, the file, whatever, may be in existence. 24 THE COURT: They're in possess ion of the trustee. 24 We have a law enforcement file that dealt with Rothstein. 25 The other documents, which were the old Rothstein firm 25 And you have the Otask, I guess, software system. 5: ORANGE REPORTING 800.275.7991 EFTA01070226 Page Si Page 1 MR. ACKERMAN: And Fortress. 1 because of either the inadequacy of the logs, because they 2 THE COURT: That have not boon produced yet but 2 have failed co comply with the league requirements, and we 3 9 will at some point be in possess ion of the trustee in bankruptcy. 3 believe it you go through and sea that some of the matters clearly aren't privileged on choir face, that number will MR. ACKERMAN: Correct. 5 be greatly reduced and then you can do the in camera 6 THE COURT: What we're dealing with, at least A. 6 review. It would also give you an opportunity to 7 this point in time in terms of your production request. 7 understand what we're trying to accomplish and what we're 8 deals with the Rothstein/Farmer documents and the Ia, enforcement documents; is that correct? 8 9 trying to plead in this case because then you could review the documents that wo have. Ono of the reasons I want to 10 SR. ACKERMAN: Yes. 10 11 THE COURT: Okay. So whore do wo start then? 11 THE COURT: Those documents are in somo location? 12 That's whore I want to -- whore do you want to start with 12 HR. ACKERMAN: Yes, they're on discs. 13 19 this? I moan, ono of the problems, again, is that -- lot me stop. Start with this. la it possible that since 13 19 THE COURT: Okay. SR. ACKERMAN: They're on a disc. Okay. You can 15 16 Judge Carney has already scent, I imagine, countless hours looking at this, that ho could do it for mo as well as the 15 16 have hard copies, too, if you wish, okay. Either way .* can be done. But ono of the reasons, ono of my other 17 trustee in bankruptcy? 17 motions that I wanted to got directed co goes to this 18 MR. ACKERMAN: Tho problen we've had, Your Honor, 18 matter because wo had this confidentiality agreement 19 is that we believe that the more economical method to do 19 we agreed co keep them secret. I submitted those documents 20 21 this would be for you to take a look at the privilege log and determine initially whether they have boon waived and 20 21 to you in camera. Those are documents we wanted to start using now in discovery for depositions because part of the 22 sure of the notions here are directed co that. And -- 22 Issue is we can't -- 23 THE COURT: Maybe I should stop and ask how many 23 THE COURT: Those? 29 documents are we talking about? If we're talking fifty 29 SR. ACKERMAN: Those ones. 25 thousand to a hundred thousand -- 25 THE COURT: Okay. Page SS 1 MR. ACKERMAN: So. 1 MR. ACKERMAN: Okay. Me can't really a" - 2 THE COURT: -- there is no way. 2 take discovery -- 3 9 SR. ACKERMAN: If you look at the spacial mast': report -- 3 SR. SCAROLA: So objection. THE COURT: I'm sorry? IHE COURT: I did road. He said like sixteen 5 HR. SCAROLA: Ho objection. 6 hundred documents, or. 6 THE COURT: Okay. 7 SR. ACKERMAN: Those aro sixteen hundred entree:.. 7 MR. SCAROLA: I don't mean co interrupt but I can 8 They aro not necessarily documents. 8 save some tine. THE COURT: That means it could be thirty 9 THE COURT: Okay. Lot him have five minutes and 10 documents per entry or something like that. 10 we'll coma back and lot you say whatever you want, 11 12 MR. ACKERMAN: I'm sorry, sixteen hundred documents. 11 12 Mr. Ackerman, okay. And then corm back, okay. Go ahead, air. 13 MR. SCAROLA: May I address, the Court? 13 MR. SCAROLA: There aro specific documents : 19 MR. ACKERMAN: Twenty-eight thousand pages. 19 have boon identified by Mr. Ackerman from among those 15 16 THE COURT: What I'm going co do, I'm going to lot him finish, take a break for lunch. Nell caw back 15 16 documents that have boon provided to then pursuant to an agreement that they would like to use. As long as it is 17 and you toll no what your position is, okay. 17 expressly understood that by agreeing co the use of those 18 SR. SCAROLA: I would like co take five minutes 18 specific documents wo have not prejudiced any assertion of 19 before lunch because it may keep us from coming after 19 privilege with regard to any other documents, we're 20 21 lunch. SR. ACKERMAN: I don't know if I can finish. But 20 21 prepared to allow them to use them. They aro worthless. really don't care whether ho uses then or not. I just 22 23 the point -- I want to answer your question is that the breakdown we're talking about, sixteen hundred documents 22 23 don't want co impact upon any other privilege argument that we may make by raking that concession. I am obliged to 29 that are identified on the privilege log. Now, we believe 29 make aura that we continuo to protect all of our other 25 that it you review the privilege log and make rulings 25 privileges because we don't have the right to waive 5 ORANGE REPORTING 800.275.7991 EFTA01070227 1 2 3 9 Lagoa attorney-client privilege. Unlike the Fifth Amendment privilege, which is controlled by Hr. Epstein, as much we might like co take all of this and put it on the :loot in this courtroom for Your Honor and everybody also in tr.. 58 1 2 3 Fago s. haven't gotten co that point. Ono of the things that really concerns me is the vagueness of cho damage clam° here because chat has to do with sone of the discovery, for example, that they can gat of you. So, I moan, I guess, I world to take a look at because we have nothing to hide, . S can make decisions on whether or not privileges have boon 6 can't do that. 6 waived. If its been waived, it's been waived. 7 THE COURT: I understand chat. 7 HR. SCAROLA: Still doesn't resolve the relevance 8 HR. SCAROLA: Okay. So we're obliged to aaaaa our privilege. 8 Issue, Your Honor. HR. ACKERMAN: I need to respond. 10 THE COURT: It's not your privilege. 10 THE COURT: I understand chat. But I can make a 11 HR. SCAROLA: Wa are obliged co assort the 11 determination -- I'm sorry. Co ahead. 12 privilege on behalf of our clients. Not only on behalf of 12 HR. ACKERMAN: I didn't man co interrupt. I'll 13 the clients who wo represented whose claims wore settled 13 lot you finish. 19 but also because that same information is relevant and 19 THE COURT: Phase, any help I can get. 15 material to ongoing claims against Hr. Epstein, we must 15 HR. ACKERMAN: Okay. There is a two part process 16 protect the work-product privilege, as well, because of the 16 with this relevance test. And the first part, we have 17 obligation chat wo have to protect the interests of those 17 argued this back and forth several tines with you and with 18 other clients. That's the position chat wo aro in. Now, 18 the special Raster, which is why we had soma frustration 19 before we ever get to questions about privilege and an 19 with that proceeding, when this subpoena went out with the 20 obligation co prepare a privilege log, and an in camera 20 complaint chat it was operating under, cho first complaint 21 inspection, the threshold issue is relevance. And it was 21 that everyone has been referring to, chore was absolutely 22 as a consequence of Your Honor's recognition of the fact 22 no objection on relevance filed at chat time. And undo* 23 that there was a threshold relevance issue that Your Honor 23 the rules of procedure that is when it's supposed to c. 29 stayed enforconant of any subpoena or production request in 29 done. We argued relevance. They argued, attempted to 25 this Court until such time as the pleadings were clarified 25 bring up relevance. Really did not bring up relevance Page 59 Page 6: 1 so that the relevance issues could be determined. 1 front of Judge Ray. The only notions chat were filed in 2 We are still in that same position today as a consequence 2 front of Judge Ray related to privilege. Once we got the 3 of the rulings chat Your Honor has just nade. We can't me 3 spacial master we started -- they started arguing relevance 9 any further this afternoon. As much as I would like to, 4 again. And ono of the hearings in February the special help to resolve those issues because the same threshold S master ruled, I'm not going back to relevance. That ship 6 problem exists. No have a relevancy concern that must be has sailed. You could have objected when this subpaen., 7 addressed before any privilege concern can be addressed. 7 went out the special master ruled. And now we're at t 8 That's our position, sir. So I would like to get it done 8 point of doing cho privilege stuff. That's the first today. We've got today sat aside. I would love to to able 9 aspect of Lc. 10 to resolve all of these issues. It cannot be done and 10 The second aspect of it is that chore is enough 11 that's why I suggested that I needed five minutes before 11 matters here chat the Court should rule on to allow sou 12 lunch, Your Honor. I don't think I cook throe. 12 discovery without the need of another conplaint. Because 13 HR. ACKERMAN: I have a response to that but we 13 It allowed cho process to proceed in aono areas. The 19 can do it after lunch. It's up to you. 19 damages, you know, that's, that's not a significant part of 15 THE COURT: Ho, go ahead. Actually, that was my 15 this, okay. That's not -- the part we're looking for and 16 concern initially because, I mean, iron day ono in this 16 the subpoena we're talking about cicala with documents to 17 cams, Hr. Ackernan, and I think I articulated this a nunbor 17 the trustee and the firm related to cho Penal schema. 18 of times the problem I had initially with the complaint. 18 THE COURT: Let me suggest co you, however, 19 knave you are not the author of the original complaint, 19 the other concern here has to do with ny schedule, my 20 okay, I know chat. Was that I couldn't got a handle on 20 ability to devote time to reviewing documents and privilege 21 what exactly the claims were and what the issues were going 21 logs for things that may ultimately end up not relevant to 22 to to to &tartane what was relevant or calculated to lead 22 the lawsuit. Okay. We're talking about thousands and 23 to admissible evidence in the case. I chink by filing your 23 thousands and thousands of documents. I'm not a special 29 amended conplaint, we're getting it down to, I think whore 29 master getting paid $300 an hour to look at documents. 25 we're going co ultimately and up at sone point but we still 25 I've got eighteen to two thousand ocher cases out Chore. 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So this is that rare fin) where there 2 with the Court and that is whether there is a legally 2 Can't be a presumption of ethics, a presumption of legality 3 4 enforceable waiver, not of the relevancy issue that was previously addressed, but of the privilege issue that 3 and to simply cell us in a log the comnunications were with, quote, 'RRA lawyers' or with, quote, 'investigate,'-' make a particularised document by document privilo4. 5 doesn't help resolve whether they're in the category o' 6 analysis unnecessary. 6 ethical lawyering or criminal fraud, which would be an 7 The second is more difficult. Privilege logs are 7 exception co the privilege. 8 important. The case law that's been provided to Your Honor, principally, the Teague. case requires more than 8 9 There is also, as a result of ono of the documents that Mr. Scarola didn't object to us using, an a-mail -- 10 11 Mr. Scarola has provided in terms of this privilege log. It's particularly important in term: of giving us the 10 11 THE COURT: Let ma back up. I thought the crime fraud section dealt with fraud or crime being committed 12 ability to narrow down from the sixteen hundred documents 12 the client not the attorney. 13 14 to have any potential ability to narrow it down so we're asking the Court to review not sixteen hundred, but two 13 14 MR. WEINBERG: Mot necessarily, Your Honor. Crime fraud exception has boon used over and over agai . 15 16 hundred, three hundred, four hundred. I can't promise you in good faith that a better privilege log will permit us to 15 16 for instance, by the government when they are investigating lawyers. And this really is why I'n here because before 17 reduce. the number of documents that we believe potentially 17 Judge Hoovier I represented a criminal defense lawyer named 18 could be related to the issues that ultimately will be 18 William Moran. Ho was ono of many lawyers charged in the 19 litigated before Your Honor. But as it stands now there 19 late 1990's. His law firm was searched. Many more 20 21 are privileged entries, for instance, RRA, moaning Rothstein firn lawyers, to Mr. Edwards. Mr. Edwards to 20 21 documents than Hr. Scarola has identified in the log soiled. The Court, Judge Hoovlor, appointed Lawrence 22 23 24 Rothstein firn lawyers. We don't oven know which Rothstein firm lawyers they are. The log lacks that degree of particularization which the rules and the case law 22 23 24 Barcena, who was a former Department of Justice prosecutor, because crime fraud was key. And in that ca-, what was key la whether it was the crime or fraud of 25 requires. 25 lawyers, not of the lawyers' clients. Page 67 Page 6- 1 It's particularly important because once Your Honor 1 In this case, and, again, I'm not hurling any -- this 2 resolves the legal issue of waivers, which I believe can L. 2 is not the time for me CO make allegations. 3 4 done on a category basis rather than a document by docune basis, Your Honor will ultimately be looking at whatever 3 4 THE COURT: We'll deal with chat later. I mean, I Just finished, probably, a three day trial on crime fraud reduced number of documents there are co put them in to 5 exception. I thought I read ovary Case, including some of 6 three categories. 6 the similar cases dealing with tobacco nanufacturers 7 Masher ono, those are documents chat, in fact, 7 dealing with the crime fraud. And I'n having a little 8 demonstrate chat Mr. Edwards gave proper ethical legal representation co his three clients. These documents are 8 9 trouble with that but I'll deal with it when we get to that point. Because it seems to me -- 10 11 related to that representation. These documents are therefore unwaived and privileged and not subject to an 10 11 MR. WEINBERG: I will, if the Court wants -- THE COURT: Mot now. 12 exception under client fraud. 12 MR. WEINBERG: -- supplement through other cases. 13 14 The second category would be documents that may have Mr. Edwards, he's 'tither the author or the receiver but may 13 14 But clearly the lawyer can't claim work-product when his work-product is in furtherance of a crime. Mr. Rothstein 15 16 also involve that subset of lawyers in the Rothstein firm who were not engaged in good faith ethical legal 15 16 is a lawyer. He could not protect his documents from litigation or from the government by saying you can't see 17 representation of the three clients chat Mr. Edwards 17 my documents, they are work-product. If the lawyer is 18 represented. Mho he represented before he can. to 18 creating the crime, as Mr. Rothstein did, there's no 19 Rothstein, who he represented afterward. There are, again, 19 privilege co prevent third-parties or Courts froth reviewing 20 21 twenty lawyers and nine paralegals and nany investigators and it's hard absent of a more particularized log and 20 21 the documents. THE COURT: We'll deal with chat later. Th.v • 22 23 absent the Court's review of some of the documents. For instance, some go to Rothstein. Sone go to RRA. May 22 23 not my understanding but I didn't think it was quite as broad as you just stated but -- 24 involve an investigator named Jenny chat Mr. Edwards said 24 MR. WEINBERG: Let me supplement that piece of 25 he never asked him affirmatively to do anything on behalf 25 this argument -- ORANGE REPORTING 800.275.7991 EFTA01070230 Page 70 Page 1 THE COURT: What you're telling me, though, is 1 from t➢eir prior jobs as an assistant U.S. 2 that you fool that the amount of docunents that I may be 2 Attorney, with how documents fit into these three 3 a➢le to, or have to review, once I got past the issue of 3 categories. Thank you, air. 4 whether or not there has been a waiver on the relevar, - issue, is that there may be waivers in regard to tr..- THE COURT: You know, I certainly have no objection co appointing a special master, however, I'm not 6 attorney-client privilege to begin with. 6 a fedora] court. I don't have the authority to do that 7 And that second, we need a more particularized 7 a➢sent the consent of the parties, as I understand it. 8 privilege log because from the log itself we can't tell whether sone of these documents may or nay not have other 8 Although sone of my colleagues try co get around that rule by appointing a mediator, I think it's still, whatever you 10 exceptions applicable to them. 10 call it, put a sign on a cow and call it a pig, it's still 11 MR. WEINBERG: Exactly, Your Honor. And I can't 11 12 say, I cannot Rake a representation that a better log will 12 You want co say anything else in response to that 13 reduce it co the number that the Court would feel 13 before we get into the nitty-gritty of the specific motions 14 comfortable reviewing. If the Court is not comfortable 14 here? 15 with what results from a more particularised log and after 15 MR. SCAROLA: Very narrowly, Your Honor. 16 hearing Hr. Ackerman on the waiver issue -- 16 disagree with the assertion that's been nada that an 17 THE COURT: I'm not aura contort is the issue. 17 attorney's involvement in a crime or fraud in which tr.. 18 MR. WEINBERG: Economy. 18 client la not participating can constitute a waiver or . - 19 THE COURT: I hate to toll you but in camera 19 client's privilege. The crime fraud exception la an 20 reviews aro probably the least favorite thing I do ➢ut you 20 exception that waives the client's privilege when the 21 have to do then. You have to do then. Okay. Anything 21 client is using an attorney to advance the client's critic, 22 also you want co toll me? 22 or fraud. I think that counsel is incorrect about the 23 MR. WEINBERG: Just lastly, Judge, we nog, as ono 23 aaaaaa ion that he's made regarding the crime fraud 24 of the documents Mr. Ackerman found in attorney's eyes 24 exception. But talking about those things in the abstract 25 only, we have an a-mall from Cara Holm's -- 25 is not going co advance this. Page 71 1 THE COURT: You're talking about these documents? 1 THE COURT: Okay. Lot's go forward with so what 2 HR. WEINBERG: One of the lawyers at the 2 motion would be first up then? 3 Rothstein firm. She was a former FBI agent and she says on 3 HR. SCAROLA: It is our notion for 4 July 29, I think our best bet is to go after those close to Epstein. And those would be the kind of gray documents 4 reconsideration of Your Honor's order sustaining objections to requests for admissions and interrogatories propounded 6 that Your Honor would have to make a document by document 6 to Mr. Epstein. 7 analysis to determine does this document support good faith 7 HR. ACKERMAN: Your Honor, before ha proceed,. 8 litigation. Is it in relation to a proper representation 8 think that the actual discovery requests ware left out or of Mr. Edwards' client or instead is sono investigator 9 the notebook for this. 10 going off on an intrusive, violative conduct that only is 10 THE COURT: Yeah, I've looked at the -- 11 to further Hr. Rothstein's ambitions co cry to inflate the 11 MR. ACKERMAN: So I have -- the one for the 12 Epstein cases co advance his own investor scheme? I don't 12 request to produce is In there. I have the interrogatories 13 have an answer because I don't have the documents. I'm not 13 and -- 14 making accusations about where any ono document will fit. 14 THE COURT: I think I've got the request. 15 I'm hopeful through a log that is more particularised we 15 MR. ACKERMAN: Request to produce is there but I 16 can coma back and say, Judge, we would like you to look at 16 don't think request for admissions. 17 the following three or four hundred. I can't represent we 17 THE COURT: The response. 18 can. If wo can't, we would, of course, would than go and 18 HR. ACKERMAN: The response is there. But 19 recommend to the Court what Judge Hoovier did in this 19 actual request and the interrogatories are not. 20 massive law firm search, which is to consider the Court 20 THE COURT: Okay. 21 looking at sone of the documents, either on review or 21 HR. ACKERMAN: So you can put these in your book 22 de novo, and having a special master and, perhaps, a 22 at Three a. I apologize for not having it. 23 special master with experience in crime fraud such as a 23 THE COURT: Okay. 24 former U.S. Attorney. I know Hr. Goldberger can identify a 24 HR. SCAROLA: Your Honor, this motion for 25 few from the conmunity who would have ongoing experience 25 reconsideration cites to the now loss than recant Fourth 7; ORANGE REPORTING 800.275.7991 EFTA01070231 1 2 3 9 Page CCA opinion in Alvarez versus Cooper Tiro whore the Court finds it to have been error for the trial Court to have restricted discovery, which I suggest to Your Honor In even lean clearly related to the allegations that are pending then the allegations In this case and their relationship to 74 1 2 3 9 Page 71 ready to be filed. So that's the contention in the broadest terms. So request for admission number ono, you have acted an sexual preference for minor females on multiple occasion➢ over the course of, at least, the last decade. Defining 6 our request for admissions and interrogatories. If w➢ can 6 the scope of Hr. Epstein's motive to conceal his misconduct 7 take a look quickly at -- 7 both in terms of restricting hi➢ civil liability and his 8 THE COURT: Lot me ask you a question about that. 8 punitive damage exposure, I sugge➢t to Your Honor is, That'➢ Judge Fine's tire case, right? 9 least, reasonably calculated to load to admissible 10 HR. SCAROLA: Yoa. 10 evidence. 11 THE COURT: As I understand, is that still on 11 Two, you have engaged in sexual activity with more 12 reh➢aring? 12 than forty minor girls between 2002 and 2006 in your 13 HR. ACKERMAN: Yea, and I have a docket shoot for 13 residence in Kest Palm Beach, Florida. Which is where 19 you to look at. 19 Mr. Edwards' clients were assaulted. 15 THE COURT: I'm concerned that case la gone a 15 Three, among the minor females with whom you have 16 little too far in the discovery and I, well, I don't know 16 engaged in sexual activity between 2002 and 2006 was a 17 what'➢ going CO happen. 17 person identified in a civil lawsuit filed against you as, 18 KR. SCAROLA: Let ma suggest to Your Honor that 18 and those are the identifications of Hr. Edwards' throe 19 regardless of whether the broader parameters that aro 19 client➢. 20 described in that case aro or are not applicable. I think 20 So, clearly, an acknowledgment from Mr. Epstein that 21 that Your Honor simply misapprehended what the appropriate 21 he, in fact, engaged In sexual activity with those minor 22 scope of discovery in this ca➢e i➢. 22 client➢ i➢ relevant and material to what we contend is the 23 THE COURT: Okay. 23 motive. 29 HR. SCAROLA: And I call your attention. WO're 29 Now, if Your Honor may recall, we understand that 25 looking at -- 25 there is very likely to be a Fifth Amendment privilege Page 7$ Page 7. 1 THE COURT: Lot mo read the ones again that we'ze assorted with regard to each of those requests for 2 talking about because I didn't have thee right here in 2 admi➢➢ion➢. But that's not the determination that Your 3 front of me, the requests themselves. 3 Honor is making right now. You're not determining whether 9 KR. SCAROLA: My suggestion la that you start Mr. Epstein can or cannot reasonably assert a Fifth with the counterclaim itself because you'll understand 5 Amendment privilege. You're determining whether this 6 their relevance more if you under➢tand the counterclaim 6 discovery is reasonably calculated to load to admissible 7 first. 7 evidence to the claim, the counterclaim that wo have 8 THE COURT: I road that this morning but lot me go back and road this again. 8 brought against him. I'm quite frankly very puzzled as to how you could arrive at the conclusion that it is not when 10 HR. SCAROLA: I would just call your attention 10 It's those cases wo are alleging that he was attempting 11 particularly to the allegations in Paragraph Five and Hine. 11 through this spurious lawsuit to avoid liability on. 12 If you look at those first and than we go to the discovery, 12 All of those cases remained pending at the time that he 13 I think it's hard to draw the conclusion that this is not 13 sued Mr. Edwards. 19 reasonably calculated to load to discovery of admissible 19 The next question, again, relates to those same 15 evidence. 15 allegations with regard to those throe clients of 16 THE COURT: Co ahead. I'm listening. 16 Mr. Edwards. 17 HR. SCAROLA: All right, air. Basically, what 17 Number five, talks about hi➢ having reason to believe 18 this complaint says is that Mr. Epstein has engaged in an 18 that they wore minors at the time. 19 exten➢ive course of conduct that subjected him to civil 19 Number six goes directly to the evidence in the 20 liability, both with regard to then pending cases and 20 underlying claims. And each of these are cl 21 potential additional cases, as well. And what he tried to 21 calculated to load to the discovery of admissible evidence 22 do, and continuos to try to do in suing Hr. Edwards, is not 22 regardless of what standard may be applied. what 23 to assert a legitimate claim but to make an example of 23 reasonable standard may be applied in terms of the scope of 29 Mr. Edwards to deter Mr. Edwards and others from suing him 29 appropriate discovery. 25 for the legitimate claims that exist that aro out there 25 Now, if Hr. Epstein assorts a Fifth Amendment ORANGE REPORTING 800.275.7991 EFTA01070232 1 2 3 4 Pag➢ privilege with regard to those requests, we're entitled in a civil ca➢e to draw inference➢ Cron that ao we're entitled to know whether he's going to assert his Fifth Amondeant privilege or not. And they also continuo to have bearing as long as some 78 1 2 3 4 Pago 8: number three. As is number four. Chislaino Maxwell is woman who is alleged to have been a procurer for Mr. Ep➢tein who engaged in sexual conduct with the same minor girls that Mr. Epstein wa➢ abusing. Sho wan a participant in his illegal conduct. 6 affirmative relief la being asserted against Mr. Edwards 6 Number five had to do with the damages that wore being 7 but because that pleading remmain➢ undefined I need to focu➢ 7 claimed. And, again, I can under➢tand how we couldn't 8 exclusively right now on our pending counterclaim. Each of these, and I don't know that I need to go 8 9 address that one until we know what the damages aro th,, are being claimed now. 10 11 through thee because the argument is the same with regard to each of the request for adndaalons. They aro all along 10 11 Number Six has to do with engaging in Sexual activities with minors again. 12 the ➢ame lines. I suggest that Y➢ur Honor simply made a 12 Number seven, Your Honor has sustained on the basis of 13 14 mistake when you denied that discovery. The interrogatories aro in some respects even more 13 14 attorney-client privilege and I think that Your Honor was confused. Because William Scherer and the Conrad, Scherer 15 puzzling. The first question is what is the full name and 15 Law Firm, were not lawyers who over represented 16 Florida address of the parson answering these 16 Mr. Ep➢tein. Hr. Scherer and the Conrad, Scherer Law Firm 17 Interrogatories? 17 are attorneys who represented, and continuo to represent, 18 THE COURT: Nang on. Let me get to that. 18 Pearl scheme victims. They have interests adverse to the 19 HR. SCAROLA: I'm sorry. 19 Intere➢t➢ of Hr. Epstein. And it is our understanding that 20 21 THE COURT: Where i➢ may ardor on that? HR. ACKERMAN: Your Honor, just to make things a 20 21 Information was provided by Mr. Epstein to the Conrad, Scherer Fire and to William Scherer. Me would like to know 22 23 little bit easier. You sustained the objection to Interrogatory number one. And I don't have an explanation 22 23 what information they gave them that relates to those cases and I don't know how that, that Calls within an 24 but that's not an objection to be raised. 24 attorney-client privilege. 25 THE COURT: Which interrogatory AVOW* talking 25 You deferred as to number eight and I'm not ,-:, Paco 79 Page 8: 1 about because there is an interrogatory at the end cr that wan deferred but I think that, certainly, is 2 these? 2 information to which we're currently entitled. As is 3 4 HR. ACKERMAN: The anon that we're talking about are two, three, four, five, six, nine, seven. 3 number nine. So I would ask the Court to take a look at these THE COURT: Nang on, hang on. Whore is t: 5 again. I think somehow there wa➢ some confusion on the 6 order? I'm trying to find the ardor on that. 6 Court's part. Perhaps Your Honor was focusing on the 7 HR. ACKERMAN: It's in there. Throe B. 7 complaint and not discovery relevant and material to the 8 THE COURT: Okay. I'm sorry. HR. SCAROLA: No, it's not, it's not tab Three h. 8 counterclaim. If you focus on the allegations In the counterclaim I think it's very apparent that this la 10 It's -- 10 Information we're entitled to have. Thank you, air. 11 THE COURT: I've got the order. 11 THE COURT: Thank you. Test, air. 12 HR. SCAROLA: Okay. 12 HR. ACKERMAN: Okay. Your Honor, I would like to 13 HR. ACKERMAN: I'm sorry. Three A. 13 start off by saying that wo had a lengthy argument abo4: 14 15 16 THE COURT: Yeah. I zoo whore I did ono, two, throe, Cour, five, six, nine. HR. SCAROLA: You deferred as to eight. 14 15 16 all of those issues, with the exception of number ono, which I don't honestly have an explanation for. But we wont through a lengthy argument about all of those issues 17 THE COURT: And seven on attorney-client 17 and one of the concerns that came up at that time was that 18 privilege. 18 the Court was asking us whether or not, based on the 19 HR. SCAROLA: And seven on attorney-client 19 complaint, that those matters were going to be at Issue. 20 21 privilege. So I'm not Sure what Your Honor WAS looking at but I don't see how you can su➢tain the objection to number 20 21 WO filed an amended pleading where we took these issue➢, to the extent that they were remotely relevant in the first 22 ono under any circumatancoa. 22 complaint, out. 23 THE COURT: Actually, nor do I. 23 Even if you look at the amended complaint, there lc 24 HR. SCAROLA: And number two, helltret two IS going 24 nothing there that puts these matters that ho has asked 25 to the sane issues as the request for admissions. As i➢ 25 with this type of particularity in issue. ORANGE REPORTING 800.275.7991 EFTA01070233 Page 82 Page 84 1 KR. SCAROLA: Excuse ma, Your Honor. I conceded 1 limitation➢ of what he has to prove in his counterclaim for 2 that. We're not talking about discovery relating to the 2 abuse of process, nothing here remotely loads to any 3 complaint. 3 discoverable evidence and that'➢ why the Court denied it to 4 THE COURT: I'm aura he's going somewhere with begin with. Engaged in sexual activity. So we're going to this, I suspect, so I'm going to let him go. 5 have to invade all of these collateral natters. These will 6 HR. SCAROLA: Okay. 6 take the Court, ono of the arguments I made last time, an 7 HR. ACKERMAN: All right. Hr. Se aaaaa argued at 7 a side trip that will take forever. We're not hare, thi➢ 8 that time his counterclaim issue➢, okay. And the Court entered its ruling and the motion for reconsideration cant 8 case i➢ not here to litigate tho➢e natters. Our case and Mr. Searala's response are related to what the law firm did 9 10 before this Court solely on the ba➢is of Alvarez, okay. 10 with investors relating to the Ep➢tein cases and how the 11 That's the only reason the Court granted this rehearing. 11 judicial system was perverted for a Ponzi scheme. 12 And my first argument Is is that if the Court is not going 12 Mr. Scarola's response i➢, well, we're going to bring 13 to con➢ider Alvarez as the grounds, this is done. 13 an abuse of process claim and, [rankly, I know we're not 14 THE COURT: Well, any ruling, let me just say up 14 hare nee aaaaa ily to re-argue it and the Court ruled in . 15 front, any ruling on the discovery natters, interlocutory 15 prior order that le was an abuse of process claim. But Sr 16 orders I can reconsider any time for any reason. The issue 16 you look at it Chore is element➢ of defamation. There i➢ 17 that I want to find the time to go to today is whether or 17 other elements of other camas. So I think before you reach 18 not these aro, in fact, calculated to load to admissible 18 any issue with regard to whether these matters, he is going 19 evidence In this case. So deal with that issue because I, 19 to have to be required to replead his counterclaim with the 20 quite frankly, it's been awhile since you argued that i➢sue 20 same particularity that you're requiring us to sae how 21 and I made my ruling. 21 sexual activity with all of these minor girls are going to 22 HR. ACKERMAN: Na objected, first of all, that 22 relate to an abuse of process claim. Okay. 23 the ➢cope➢ are burden -- the ➢cope➢ are extremely large. 23 Secondly, number three, ha wants to know who he had 24 Mr. Searala's counterclaim, which he's relying on, is an 24 specific sexual activity with. That's not going to boar on 25 abuse of process claim. His abuse of process claim is 25 an abuse of process claim. Okay. He can make generally Page 83 Page 8 - 1 directed at Hr. Epstein for this lawsuit. Ho, therefore, 1 the allegation that maybe. Mr. Epstein filed this lawsuit to 2 has not done ao in his counterclaim, needs to particulars. 2 harass Brad Edwards but this is not where it's going to ga. 3 allege what process, what act➢ of the judicial system vet, 3 Okay. Ite don't have to gat into the number of minor 4 abused in this case as he has argued to this Court. A ✓.1 females that he paid for. Na don't have to got into all of that needs to be done before we undertake this bra4. 5 those specific dates. Na don't have to get into the name➢ 6 extensive discovery. 6 of thi➢. And this relates to the motion that we have later 7 Now, we have objected on the grounds of the Fifth 7 on relating to pre-trial publicity. Because this lane 8 Amendment. And we have argued before on the sword and shield and I need to aay something about it at this point. 8 gets filed in this Court and the next thing we. know it's in the newspapers or the Intern➢t. And the Court, if thi➢ 9 10 The i➢sue➢ that involve -- and the Court overruled them 10 discovery proceeds, la going to be in a position of having 11 when it came to the motion for summary judgment. 11 to deal with those issues that may potentially taint the 12 The ➢word and shield issues come on these lines. When a 12 jury pool. So at this point they really have no relevance, 13 plaintiff makes a claim and then claims privilege on 13 okay. 14 matter➢ related to the case, then Mr. Se aaaaa may have 14 He's asked for socializing minor females In the 15 a point. But nothing in this case, and ho has not 15 presence of these people. There i➢ no charge, there i➢ no 16 particularly alleged why this case and the actions in thi➢ 16 allegation that supports this. And an abuse of proces➢ 17 case that have boon taken by Mr. Epstein's counsel as abuse 17 claim that he has plod, as It presently exists, including 18 of process raised these Issues. Mr. Se aaaaa has -- and, 18 tran➢porting these and acts of trafficking minors, are 19 therefore, the award -- and this was briefed in the 19 going to take us on a side trip. Now, with regards to -- 20 response, our response to the motion for summary judgment. 20 that's pretty much related to the requests for admissions. 21 It was extensively briefed on the ➢word and shield doctrine 21 Most of the interrogatorie➢ fall under the same 22 and so I'm just going to direct the Court to that. 22 category. We did raise Fifth Amandaent objections there. 23 But In this case we have, he has asked about sexual 23 They are not related to pursuing whether hla genitals were 24 preferences, sexual activities. The scope of this is 24 exposed. Whether they ware clothed in underwear have 25 extremely broad. It's extremely h aaaaa ing. And given the 25 nothing to do with the claim that we're proceeding with. ORANGE REPORTING 800.275.7991 EFTA01070234 Page 86 Page 1 They cannot possibly lead to relevant evidence relating to 1 ono -- if the element of the abuse of process is that they 2 this. All Sc will do is be burdensome, harassing and 2 took a pending case and abused the system to put some 3 4 wasting the Court's time dealing with this. the sane thing with number throe whether your gonita. 3 4 extortion on someone else, they got co establish that. To extort or put pressure on Mr. Edwards he has to *stabil: 5 were exposed. Khat was the number of tines this lady, that first before vo go into all of these other matte: 6 Maxwell, engaged in activity with minor females? What door. 6 because it the process was legitimately used, it doer • 7 that have co do with an abuse of process claim? This is 7 matter what cho motive is. 8 10 11 merely done for the purpose of harassment and has nothing to do with cho claims that aro being brought, which is why, I believe, cho Court ruled in this natter. Here ho wants to know, number six in the interrogatories, with regard to 8 9 10 11 THE COURT: Well, I thought chat abuse of process, the whole theory of abuse of process was being used for purpose unrelated to the process. itself, i.e. to cover up misdeeds or whatever the reason may be. At 12 the last tine you engaged in sexual activity with a minor 12 the allegation. That is the reason or, at least, that's 13 state the following. We don't need co got into that. This 13 their argument. 19 Court doesn't need to spend its Limo on chat. There is 19 HR. ACKERMAN: Your Honor -- 15 16 nothing remotely related to this abuse of process claim that's going co make that relevant. 15 16 THE COURT: I'm Just asking. I'm not ruling. I'm asking questions here. So )ust, you know, ho says the 17 The same thing with L.M. In number eight -- 17 reason that it's relevant is because cho process is being 18 THE COURT: Let mo )ust ask you, his argument is, 18 abused for cho purpose. Tho reason it's being abused L. 19 essentially, chat the purpose of the abuse of process hero 19 to, the ulterior motive is to cover up and otherwise 20 21 is to cover up chose alleged conduct. Or to prevent exposure of Chia alleged conduct by Hr. Edwards and others 20 21 prevent the exposure of your client co chose other allegations by Hr. Edwards or others like him that may be 22 23 like him. Hov do you respond to that? If it goes to the motive of filing or abusing the process, how is that not -- 22 23 scared off or afraid to pursue it because of what he's doing right now. At least, that's his argument. 29 if that's true -- how is that not -- 29 MR. ACKERMAN: Your Honor, based on what he's 25 HR. ACKERMAN: Well, first of all, Your Honor, 25 asking -- Page 87 Page 1 Mr. Epstein plod guilty, okay. There was an overall 1 THE COURT: Uh-huh. 2 settlement chat dealt with a numerous number of victims s. 2 HR. ACKERMAN: -- you don't need to ask him this 3 4 part of that, okay. He served time. Ho was on probation. okay. Ho entered into a non-prosecution agreement and 3 4 way. THE COURT: Uh-huh. 5 whether they aro happy with what the government did or n* S MR. ACKERMAN: We don't need co go through a.. 6 is really irrelevant. So how do you got to the point who:, 6 for example, got healthcare provider records for sexual 7 ho wants to cover up all of this when the government has 7 disorder. There is no issue there. He don't need to go 8 9 Concluded cho investigation. They've agreed -- THE COURT: I guess it's the same reason your 8 9 through, in other words, what is the name and last known address of every healthcare provider which you have been 10 11 client plod cho Fifth Amendment. I presume your concern, or not maybe concern, that doesn't protect him. I moan, I 10 11 treated or evaluated for sexual disorder. No haven't placed that in issue. Okay. No don't need, and ho doesn't 12 mean, that's a logical answer. I don't know what happened 12 need to be able, if the Court is correct, and to follow the 13 19 here. I'm Just, I'm asking you to respond to his argument, which is, look, if the abuse of process hero is misuse of 13 19 Court's question, uo don't need to know the date of every single ono of the actions. We don't need to show in dotal] 15 16 the Judicial system to silence Hr. Edwards and others like him from pursuing claims against your client for sexual 15 16 what he's asking about genitals. No don't need to know the number of sexual matters that wore involved with 17 activities with minor females or other sexual misconduct, 17 Mr. Epstein co do that. Ho can introduce that by talking 18 if that's his motive for doing it, how is it not relevant 18 about what, you know, what he's plod guilty to. But this 19 that he's engaged in that conduct? 19 is such a broad request we have assorted a Fifth Amendment 20 21 MR. ACKERMAN: Because the abuse of process Claim does not require the proof of motive. Okay. Tho abuse -- 20 21 privilege on lc and he is making this argument in defense. I moan, we wore making that In dafonse of a counterclaim. 22 if you filo -- 22 THE COURT: I'm sorry. I'm not ruling on tr.. 23 THE COURT: It's not whether lc requires proof of 23 Fifth Amendment privilege. I'm ruling on whether or not 29 it. Whether it's relevant to the cause of action. 29 those are relevant to the lawsuit and not whether your 25 HR. ACKERMAN: Well, if ono of the elements isn't 25 client has the Fifth Amendment privilege. 8.. ORANGE REPORTING 800.275.7991 EFTA01070235 1 2 Page MR. ACKERMAN: That's part of our objections right now. 90 1 2 Page 9, relevant and material. And .Milo motive is generally not an element of a tort in an abuse of process claim whore we 3 9 HR. SCAROLA: Which I am not asking bo overrul4., THE COURT: I didn't understand it to bo that 3 are obliged co show that the purpose behind the filing of the complaint against Mr. Edwards, which is the process way. I understood it to bo the question that was in :ton, S that is clearly addressed in this counterclaim, the purpose 6 of ma. Your client can always say I object on the basis 6 was unrelated co any legitimate purpose and was intended to 7 ➢ut he has co specifically answer the question that way. 7 cover up an extremely ➢road pattern of conduct that could 8 But the question was, that I thought we were discussing, was whether or not he can be required co even give that 8 9 subject Hr. Epstein to both additional criminal liability and civil liability. 10 11 answer because if it's not relevant or calculated to load to admissible evidence, he doesn't have co give any answer 10 11 It is a very curious argument, indeed, that Mr. Epstein has engaged in so much of this criminal and 12 period. 12 tertious conduct that it would create an enormous ➢urden 13 19 HR. ACKERMAN: Your Honor, I just want to put on the record that we've raised the Fifth Anendment. 13 19 for him to answer the interrogatories about how many young women he has abused. If that's the argument that is Doing 15 16 THE COURT: Okay. HR. ACKERMAN: secondly, this is not calculated 15 16 mad., and it sounds like that's the argument that's being mad., they have the burden of supporting that 17 to load to any relevant evidence. It is calculated to get 17 burdensomaneaa argument. But there is no way that the 18 harassing information that is over broad and has nothing to 18 Court could ever conclude that you have engaged in so 19 do with, given this typo of detail, with what he claims he 19 misconduct that I'm not going to ask you to tall us how 20 21 wants to prove, okay. Tho Court can certainly restrict what he's asking. That's ono of our objections. It's over 20 21 much because it would ➢o too much of a burden on you. THE COURT: I didn't understand you to say that. 22 23 ➢road. It's harassing. It's vary, very personal in tams of doing it, okay. It certainly should be limited in tine. 22 23 I thought you wore saying it was over broad, not burdensome. It's a different standard. 29 Thera is no effort hare at all to limit the time. If the 29 HR. SCAROLA: Wall, the word burdensome was 25 Court -- ho doesn't need to answer questions about his 25 spoken many tines and It was related co the scope of Page 91 Bag. e. 1 genitals when they were exposed, okay. If the 1 was being requested and how many incidents would need to be 2 interrogatory is rephrased so that it states that ware you 2 disclosed. As far as the scope is concerned where this 3 9 6 subject to a number of victims' claims, if so, how many, can establish chat, okay. But to go through and ask when Maxwell engaged in sexual activity with a minor female, what does that have to do with Hr. Epstein? Okay. 3 4 6 conduct took place, when it took place, the extent to which It is going co expose Mr. Epstein to potential criminal civil liability is all relevant and material. There', nothing overly burdensome about this at all. 7 That's someone else. Okay. And whether he did these oven - 7 MR. ACKERMAN: Tho burdensome part of it was the 8 sexual acts chat are the subject of this request, that's really the heart of the objection. I think, I still 8 9 detour that this Court would go on, if we go down that path. 10 11 contend it's not relevant based on what is there but, certainly, if the Court is going to find that he wants to 10 11 THE COURT: Okay. I've hoard enough argument on that. I'm not going to rule right off the top of my head 12 prove motive, this isn't the way to do it. We're going to 12 here. You'll get an order ➢y the end of the week. I got 13 19 have evidentiary issues with it. Tho Court has discretion in discovery natters to limit it so as not to waste the 13 19 to think about this. Whichever way I go it's kind of like, In a sense, a roadnap of where we're going in the future so 15 16 Court's tine with unnecessary litigation. And at a minimum, I atilt believe the Court needs to wait until 15 16 I really have co think about that mere. what would bo the next one here we have to deal with, guys? I moan, I got a 17 Cooper is involved, but at a minimum the Court should 17 pretty good idea what I'm going to do but I want to think 18 sustain these objections and make him reask them so that 18 about it overnight before I put it on paper. 19 they are not, they're limited in tine. They're limited in 19 HR. SCAROLA: Your Honor, the next has to do with 20 21 not so much detail. And that they are calculated to show why it's related to the claims in this lawsuit and these 20 21 our notion for protective order and objections to a notice. of taking deposition and appointment of special master in 22 don't meet that requirement. 22 an effort co re-depose Mr. Edwards. 23 THE COURT: Okay. Briefly, Hr. Scorpio. 23 HR. ACKERMAN: So, that's not the ono. 29 MR. SCAROLA: Your Honor is correct that motive, 29 THE COURT: I'm sorry. 25 while generally not an element of a tort, is always 25 HR. ACKERMAN: I don't believe that's ch.. h, ORANGE REPORTING 800.275.7991 EFTA01070236 1 2 3 4 Page 94 one. HR. SCAROLA: Three B. KR. ACKERMAN: The next one is Three B and Threw C. Motion for protective order relating to a subpoena ti..- we sent to the truster, seeking the law enforcement 1 2 3 4 5 Pao* KR. ACKERMAN: Well, no, because I wasn't prepared to deal with it today. Hy concern, though, that we have filed -- and thi➢ would be, if you want to take thi➢ up now? THE COURT: Well, I guess we better then we can 6 document➢. 6 go ahead and take It up in order. 7 KR. SCAROLA: Oh, I'm sorry. 7 KR. ACKERMAN: Well, thin would be sections Three 8 THE COURT: So Three B. 8 E and Three F. KR. ACKERMAN: Three B. THE COURT: Okay. Thin has actually never been 10 11 THE COURT: Let's ma pull that. Let's take about a five minute recess. I've got something I need to take 10 11 presented to me for hearing before, right? KR. SCAROLA: This is now. 12 care of real quick. 12 KR. ACKERMAN: This is new. 13 (BALM( TAXENI 13 THE COURT: Okay. Give no a second, counsel. 14 KR. SCAROLA: Your Honor, an issue has arisen 14 Okay. Kr. Scarola, you filed a response to this? 15 16 during the recess that the court reporter would like some guidance on. Ono of the reporter➢ has requested the 15 16 KR. SCAROLA: Yes, sir, that's the next tab F. THE COURT: Okay. I'll hoar argument. I have to 17 transcription of this hearing and to receive a copy and the 17 toll you, gentlemen, it's been awhile since I've had thin 18 court reporter wants the Court's guidance as to whether she 18 issue come up. In fact, I think it's only come up once in 19 can accept an order from someone other than a party In the 19 my judicial career but I will listen to argument. I will 20 21 case. KR. ACKERMAN: Your Honor, I would ask that you 20 21 not rule from the bench today. I have to look at these cases again. It's been a long time since I read that 22 23 defer that until we get to the motion relating to prejudicial statements that we're asking the Court to enter 22 23 Supremo Court decision but go ahead, Kr. Ackerman. KR. ACKERMAN: Yes, sir. 24 some re➢trictions on because of the use that has been made 24 THE COURT: Okay. And did anybody favor me with 25 of statements in this case that ➢how up in the press that 25 copies of these eases? Page 95 1 relate to the sexual matters, which we believe aren't 1 HR. SCAROLA: I did not, sir. 2 relevant. 2 HR. ACKERMAN: I did not, Your Honor. WO can 3 4 THE COURT: You are asking me to issue a prior restraint order, is that what you're asking me to do? 3 send them in. THE COURT: I can look then up. HR. ACKERMAN: It's not a prior restraint order. S KR. ACKERMAN: Ono of the things that's been 6 THE COURT: Well, what is it you aro asking me to 6 occurring in this case, Your Honor, and a perfect example 7 do? 7 of our position on It is the summary judgment documents. 8 KR. ACKERMAN: We're a➢king you to enter an order -- hold on a second. 8 9 Everything that Mr. Scarola and Kr. Edwards can do to raise the issues of these sexual improprieties to insert in thin 10 11 KR. KNIGHT: Actually, at this point I think what .120 i➢ 'eying the court reporter issue, if we could tato 10 11 case, the Court can see that they are doing. Okay. Coco they file the stuff in the Court file it la then under the 12 that up at the very and because it nay relate to some of 12 law and under the bar rules able to be commented on. So as 13 14 these other issues. THE COURT: Let's make sure we gat to it. Okay. 13 14 a result, we've attached to the first notion and then the amended motion these articles where Hr. Se aaaaa is being 15 16 Because -- well, let's deal with it right now. Since It's coma up let's deal with it and we'll deal with It again, I 15 16 attributed to saying that he'➢ a convicted pedophile. That's not true. Okay. Ono of the things I want to 17 guess, in the order. But this is separate. This Is an 17 addre➢➢ in this motion la up until today Mr. Searola 18 open proceeding. I know of no case law that prevents 18 constantly referred to Hr. Epstein as a pedophile. 19 anybody from getting a copy of -- having a court reporter 19 Okay. And there has been no proof of that anywhere. And 20 type a deposition. 20 It's inappropriate to do it in a Court proceeding and for 21 KR. SCAROLA: That's my understanding, sir. 21 It to be quoted in this manner because it will taint the 22 23 THE COURT: I don't know of any. I mean, can't in 22 23 jury pool. And also has no bearing on what the issues are. Kr. Scarola la quoted in other areas about speaking to somebody cone and gat a copy of anything that's open 24 court. I don't know, if they're willing to pay for it. 24 Prince Andrew. There is an address book. All of these 25 Do you have any authority for that ... 25 will become issues In this case it this door gets opened. 5. ORANGE REPORTING 800.275.7991 EFTA01070237 26 1 2 3 4 Page 98 There is articles whore Mr. Scarola says they're trying to get a statement from Prince Andrew. And It's our view that those were published convents by Mr. Scarola that's clearly trying to generate articles about Mr. Epstein and that is not the place co try this case. 1 2 3 4 S Page 100 We have a British publication called the Telegraph that's published convicted pedophile. Well, he hasn't been convicted as a pedophile. Okay. Itch of the information Is from Mr. Scarola and he's quoted in the article that we've attached and we put forth sone of what he said. Me 6 The Court does have discretion under the Miami Herald 6 wants to speak co Prince Andrew. They want to obtain 7 Publishing McIntosh case to take control and prohibit 7 additional details. No believe Prince Andrew has been in 8 extraditial commentary in order to ensure the party receives a fair trial. And you can take stops to protect 8 9 the conpany of Mr. Epstein. And then we talk about The Moly Grail that was reprinted. 10 11 against pre-trial publicity, as the Shepherd Maxwell case discussed. The limitations imposed by the Court on 10 11 Then there is another British publication Called the Observer, which Mr. Scarola is again quoted. No have 12 communications between the lawyers and/or litigants and th 12 another article published in the Indopendant discussing the 13 14 media are pernissiblo for good cause in order to assure a fair trial. McIntosh case specifically states that 13 14 same thing. And we've got the Farmer Firm on their web site 15 16 limitations placed on lawyers, litigants, and officials directly affected by Court proceedings nay be at the 15 16 issuing press releases and online articles referring to Mr. Epstein and the lawsuits. And they refer to him on the 17 Court's discretion. Muzzling lawyers who may wish to make 17 web site as the billionaire pedophile and he helped ton 18 public statements has been long recognized it's within the 18 women seek justice. Okay. 19 Court's inherent power to control professional conduct. 19 We don't believe it's appropriate co wage a media 20 21 There is also a bar canon, 114-3.6 of the rules regulating the Florida Bar, called trial publicity. It 20 21 campaign, taint the jury pool and pre-try this case in the court of world opinion, particularly given the Internat. 22 23 talks about a lawyer shall not make an extraditial statement that a reasonable person would expect to be 22 23 Okay. This is one of the reasons why I believe the Court 24 disseminated by moans of public communication, if the 24 should deny the earlier request that we spoke about with 25 lawyer knows or reasonably should know, that it will have a 25 regard to the discovery on these specific sexual matters Page 99 Page IC: 1 prejudicial likelihood on material prejudicing an because they will then to In the press. And that will be, 2 adjudicated proceeding due to its creation of an eminent 2 than we will be faced with real issues about a fair trial. 3 4 and substantial detriment on that proceeding. This rule incorporates the substantial likelihood of material 3 4 The Court can place these limitations -- THE COURT: Help me out here. The McIntosh ca ,—. prejudice standard that the Supremo Court adopted. 5 I read this and there has been some Supremo Court case • 6 And what's occurred, and the Court can look at the 6 since that decision, as I understand, that tell coo what 7 docket sheet. I don't think I have it attached hare. B.' 7 threshold or what the standard is that I have to apply 8 9 there was a recent filing that Mr. Scarola made that he used in support of his punitive damages about an intervlou 8 9 before I do that. I know I have the authority to do that. I, certainly, have the discretion to do that but there's a 10 11 with another alleged victim. No files it in the Court file and then there is an article about it. That has also been 10 11 standard set forth in these cases, as I recall it, that ma what you, you or the parson actually seeking t!- t 12 the case with soma of those other articles. No have in the 12 restraint, is required to establish before, before I 13 14 amended nation, the article is Epstein Claim To Intimidate Attorney Edwards Prosecuting Sex Abuse Cases. No's being 13 14 down there. So what is it, what do the cases tell ma 4”-, that? 15 16 17 quoted here. Okay. Than there is another article in the Daily News, Jeffrey Epstein Introduced Woman to Prince Andrew. That's being quoted. Mr. Edwards is quoted. Then 15 16 17 MR. ACKERMAN: The Court -- we have proposed what the Court can do. It says that no person covered by tbi, order -- 18 there is a narketing firm that Edwards, Mr. Edwards' law 18 IHE COURT: So, no. You misunderstand me. 19 firm used where he states Mr. Edwards has successfully 19 me ask the question again. I'm not asking you what yc. 20 21 represented con women between twelve and fifteen years old by proving that Mr. Epstein and his intentional sox 20 21 want na to do in terms of restraint. What I'm asking you Is what is the threshold of the bar you have to reach in 22 23 trafficking criminal enterprise exploited those girls. There is simply no basis in fact for this, at least, based 22 23 order to get such a restraint? As I understood it, if I recall right, the McIntosh case sets forth a standard that 24 on the knowledge we have of the number of cases 24 I have to utilize before I, I use my discretion by entering 25 Mr. Edwards has handled. 25 such an order. It's boon awhile. ORANGE REPORTING 800.275.7991 EFTA01070238 27 Page 102 Page 104 1 HR. SCAROLA: That standard is described in our 1 unnecessary amount of pre-trial publicity on issues that 2 memo, Your Honor. It's quoted at page throe, the top at 2 may not, and the Court may ultimately rule on, have nothing 3 9 page three in our memo. THE COURT: And your mama is at? 3 to do with this case. Okay. You are not than, yet on that decision, okay, on what the ultimate issues aro. And until HR. SCAROLA: That's tab F. Comas right after S that occurs, the lawyers shouldn't be making any cosecants 6 Choir mama. 6 to the press about sexual Conduct Claims Involving 7 HR. ACKERMAN: Hold on. To justify a pric 7 Mr. Epstein with the specificity Hr. Scarola has boon 8 restraint the activity must pone a clear and present dangat or serious or eminent throat to a protecting competing 8 9 saying. What we're proposing la that is contained on page 10 11 interest and that such a restraint cannot be upheld or -- cannot be uphold if reasonable alternatives aro available 10 11 eight and nine of the amended motion. That basically states that no parson covered by this order shall make no 12 and that's what McIntosh says. 12 state mane to the media that could interfere with a fair 13 KR. SCAROLA: That's a direct quote from 13 trial. Notwithstanding that, the Court -- 19 McIntosh, Your Honor, that's correct. 19 THE COURT: What page are you on? 15 16 KR. ACKERMAN: But the Court also -- and that talks about pre-trial proceedings. Okay. This Can go on 15 16 KR. ACKERMAN: I'm on page eight and nine of our amended motion. 17 between now and the time we go to Court, as long as we are 17 THE COURT: boos this come out of a case? 18 discussing these issues. And by the time we gat to trial, 18 HR. ACKERMAN: Yea. 19 you know, and the lase. I think the Court is concerned 19 THE COURT: What cane? Because I wouldn't know 20 21 about is eminency. But we have a history right nos that's been established. If the Court allows this discovery to 20 21 what in the world that could interfere with a fair trial or otherwise prejudice the parties in administration of 22 23 proceed that we've previously argued and does not place -- and the case law says that a Court -- prohibition on 22 23 justice means. That's kind of vague. You have a ease that that came out of? 29 cement is an acceptable alternative to prior restraint, 29 HR. ACKERMAN: Yeah, I da, Your Honor. I have to 25 which is cited in the Florida Freedom Newspapers versus 25 locate it. I believe I have it. Your Honor, I don't have Page 103 Page 10- 1 McCrary cane, which la a Florida -- I'm sorry. Yeah, 1 a copy of it. I'll have to get it to you. I thought I had 2 Florida Supreme Court case 520 so.2nd 32. And it can 2 it with no. 3 9 outline, the Court has also outlined other measures short of prior restraint on publication. Okay. And that has 3 4 THE COURT: Okay. Co ahead. KR. ACKERMAN: But thane canes do allow the Court been hold to be an appropriate way of doing it. And what 5 to make a balancing teat between free expression and a fair 6 the Court can do, and what we're proposing to do, la onto: 6 trial. And in this cane, I don't -- we're asking for song 7 some pro-trial order that before any comments aro made or 7 protection because if wo end up, for example, doing a video 8 anything is filed relating of a sexual nature, the Court review it and impose limitations on counsel before they 8 9 deposition -- THE COURT: Thor* is a distinction between asking 10 11 dormant to the press. Those matters are on the Internet and there is really no way to deal with it. 10 11 for protection against publicity or statements being made and asking for protection in regard to the integrity of a 12 THE COURT: Two order I enter isn't going to 12 fair trial. Those are two different things. You 13 19 protect the Internet anyway. HR. ACKERMAN: You can't stop the Internet. What 13 19 understand what I'm saying? The more fact that somebody says something that your client rinds offensive or doesn't 15 16 you can do is atop us, atop the lawyers from talking to reporters about stuff before it gots filed in the Court 15 16 like or reels that ha's boon invaded by that comment is not the same thing as my concern, which is, which la that there 17 file. For example, Mr. Scarola recently filed an Interview 17 is a fair trial in this case and can your client get a fair 18 of a woman that was an alleged victim of Mr. Epatoin's 18 trial with pre-trial publicity. You see what I'm getting 19 actions. He filed that with a pleading that said this is 19 at? Because you seem to be focusing most on, you know, 20 21 being filed in support of some motion, foliose] by an article in the paper. Okay. That's what we're asking the 20 21 this thing affects your client, are, you know, libel or slander. 22 23 Court to exercise some control over. The case law, as I understand it, aaaaaa that once it's in the public record 22 23 HR. ACKERMAN: No, no, that's not the issue. Your Honor. 29 the lawyers aro allowed to comment on it. But what we're 29 THE COURT: Okay. 25 trying to do is prevent that so that wo don't have an 25 KR. ACKERMAN: Bore's the thing -- ORANGE REPORTING 800.275.7991 EFTA01070239 28 1 2 3 4 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 106 THE COURT: Because I don't have any evidence in front me at this point that whatever pre-trial publicity has gone on or been said or whatever has been said or done, and I don't know what all has been done, has in any way affected our ability to sit six jurors in this particular case that don't know anything about this case and otherwir., are able to render a fair verdict. HR. ACKERMAN: Here's what I ask the Court to consider. THE COURT: Okay. HR. ACKERMAN: Okay. Let's hypothetically, and we don't believe the Co➢rt should ellew this to occur, but hypothetically, let's assume that the Court allows a substantial portion of the discovery that Mr. Scarola was arguing about before, let's assume that that gets in the Court file. Let's assume that Mr. Scarola or Mr. Edwards Is allowed to make continual media releases about it between now and the time we have a hearing. Let's assume that In response to some of those discovery requests wo will be filing mations under 90.604(bi, which relates to other bad acts, to keep that information out because it's merely being introduced to prejudice the jury. The Court will have to conduct a balancing toot in terms of whether its proposed relevancy is outweighed by the prejudicial impact. Eased on the information that they aro seeking, 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 108 before any further media report➢ occur that the Court a, least instruct the lawyers that there be no more media discussions about the sexual activities until you've ruled on whether they're relevant. And then place acme control on what the lawyers say so that by the time wo do got to trial the ➢edia -- the jury pool i➢ not tainted, which clearly will occur based on the pattern we've seen rig THE COURT: Yes, sir. KR. SCAROLA: We have filed an extensive memorandum addressing those issues. It would be unconstitutional for Your Honor to impose any type of gag order on us at this point in time. Particularly considering the fact that thi➢ matter has not oven yet boon set for trial. THE COURT: Not oven at issue. HR. SCAROLA: Not oven at issue. No don't even have a complaint filed yet. So the case law is clear that there must be a clear and present danger that a jury pool could be tainted by specific -- THE COURT: Does that standard apply to gag orders as to the attorneys, as compared to power of restraint of the press or something of that nature? KR. SCAROLA: It applies to gag orders with regard to attorneys. 1 2 3 4 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 107 that will be an enormous task. Eased on what is likely to occur, if this occurs, there will be numerous media publications continuously now through the case gets tried. Okay. If it's. tried. And at that point In time we will then be raced with a potential jury pool that will have a steady dose of this and I believe that that is wrong to do at this point, particularly, when the Court has not solidified the issues about haw extensive this will be. And at that point I think the Court, it is wall within tho Court's -- the Nebraska Press Association case states that while restrictive orders unquestionably aro permissible within certain limits, the U.S. Supremo Court has not made any distinctions between restrictive orders and prior restraints. Instead, Nebraska focuses on balancing free expre!➢ion against competing interest in a particular context. In this case what I'm trying to say is that if my hypothetical proves to be true, then we will be faced with a jury that will be tainted because of all of the publications. And we will -- if this case is limited to abuse of process, and Mr. Scarola can inject this into it, then the jury, in my opinion, and I will argue to the Court, will not be able to sot aside any instructions the Court makes relating to 404(b) evidence. We have Fifth Amendment issues that are coming up. And I submit that 1 2 3 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10, THE COURT: Okay. KR. SCAROLA: Yes, sir, it does apply to gag orders with regard to attorneys. And the standards that are applicable, I suggest to Y➢ur Honor, clearly cannot be met under the present circumstances. And there is a complete and total absence of proof before Your Honor that we have engaged In any conduct whatsoever that could to prohibited under any circumstances. We have had the opportunity to appear on national television. He have had the opportunity to conduct exten➢ive press interviews. We have had the opportunity to issue press releases. We have not engaged in any of that conduct. The press has taken a keen interact, particularly, the foreign press has taken a keen interest in this case and there have boon a lot of articles that have appeared in the British press ever since a victim of Mr. Ep➢tein's has made public statements that have associated British royalty with Kr. Epstein. They have boon very interested in what is going on in this case as a consequence of that. And we have had many opportunities to speak to the foreign press about those issues. We have scrupulously limited any response that we have made to contacts Initiated by the press to matters that aro matters of public record and available to the press by going to the courthouse and reading this Court', ORANGE REPORTING 800.275.7991 EFTA01070240 29 1 2 3 Page 110 file. If Mr. Epstein Is embarrassed by Hr. Epatain's conduct, that's Mr. Epstein's problem. And, quite frankly. 1 2 3 Page 112 HR. ACKERMAN: I don't have the Gentile case. THE COURT: You got the cite for me? Oh, is that one 501 US 1030. I got that one. I got the McIntosh case. 4 I'm pleased to hear that he's embarrassed by his conduct. 4 HR. ACKERMAN: I have McIntosh and Florida Maybe it will serve some deterrent effect in th➢ future on 5 Freedom Newspapers I can give you. I've marked them with 6 Mr. Ep➢tein. And if this case and what Hr. Edwards ha➢ notes. 7 been through serves th➢ purpose of increasing Mr. Epstein'➢ 7 THE COURT: I think I can -- do you have any of 8 embarra➢smant over Mr. Epstein'➢ misconduct, that's great. 8 these cases, Hr. Scarola? 10 11 I will tell you that the focus of public attention an this case has served the interests of my client because it has produced witnesses that we otherwise might not have 9 10 11 HR. SCAROLA: I don't have the cases themselves, your Honor. They aro quoted in relevant part extensively in our memorandum. 12 known about. And I welcome further public scrutiny with 12 THE COURT: Let me take a look at those. I'll ba 13 14 regard to this case for that reason because it will aid, ultimately, in the pursuit of justice. 13 14 right back. Okay. HR. SCAROLA: Thank you, stir. 15 16 Ka object to any restraints. I will tell you that once thi➢ case is set for trial we will scrupulously avoid 15 16 IBREAk TAXEM. THE COURT: Okay. And I apologize for taking so 17 participation in any public comments with regard to this 17 long. It's been awhile since I've read these decisions, 18 case that could possibly interfere with our ability to 18 quite frankly. And I had an opportunity to road the ones 19 select a jury because the last thing we want to do is 19 you've given m➢, as well as soma that were actually cited 20 interfere with our ability to get justice in this case. 20 in some of the decisions cited after the ones you gave me. 21 Thank you, air. 21 Seems to roe in reviewing these cases that Supreme Court of 22 23 HR. ACKERMAN: Your Honor. THE COURT: Yes, sir. 22 23 Florida, as well as the Supreme Court of the United States, made a distinction between the Court's discretion in 24 HR. ACKERMAN: Directing your attention to pages 24 limiting consents by attorneys during or prior to a 25 five and six here la the bar rule and it specifically is 25 proceeding, as compared to the public's right to knowledge Page 111 Page 11 1 restricted to a lawyer Shall not make extrad aaaaa 1 of trial proceedings, as guaranteed by the freedom of the 2 statements that a reasonable person would expect to be 2 press in provisions in the United States constitution. 3 4 disseminated that will have a substantial likelihood of materially prejudicing an adjudicative proceeding. 3 And, specifically, has hold that prohibition on comments Is, in fact, different from prior restraint. And the pre➢➢ THE COURT: Let me ask you this question. 5 has a right to print anything and we can't, or should not, 6 HR. ACKERMAN: And that's incorporated into the 6 restrain that except in the mast extreme of circumstances. 7 Gentile case, which you asked about earlier. 7 But the comments of counsel can be restrained. 8 THE COURT: Okay. HR. ACKERMAN: And -- 8 Having said that, it seems the Supreme Court has adopted, Supreme Court of the United States has adopted . 10 11 THE COURT: I'm not aura that a Florida bar rule provides legal authority for ma under the constitution, to 10 11 lesser standard when Imposing limitations on comments by counsel, as compared to any prior restraint of the press. 12 enter an ardor. I mean, it may result in sanctions to the 12 And the ➢tandard which is set forth aaaaa to be substantial 13 14 lawyer. HR. ACKERMAN: The bar rule, that's exactly what 13 14 likelihood of material prejudice and the Supreme Court of the United States said that i➢ a constitutional permissible 15 16 Gentile nays. THE COURT: Tell you what, guys, I understand 15 16 balance between the First Amendment rights of attorneys and the guarantee of a fair trial. 17 both aides of the argument here. What I need to do is go 17 Having said all of that, at this point I will deny the 18 back and look at the cases. Do you all have them here? 18 motion simply on the basis that I have no evidence In front 19 It's been a long time since I read the cases that -- 19 of ma that would establish that that standard, that 20 21 HR. ACKERMAN: May we submit them to you? THE COURT: Ho. I want to go back and take 20 21 comment➢ by counsel or anything that counsel has said, done or would do, would have a substantial effect or substantial 22 23 fifteen or twenty minutes and let rma read the cases, make a decision. This la something you guys need to know right 22 23 likelihood of material prejudice to this case at this point. I think that is an evidentiary thing that requires 24 now because it's going to affect also what the court 24 ma to make findings of fact and facts on the case Before 25 reporter does. 25 you actually aay, before you enter such a gag order you ORANGE REPORTING 800.275.7991 EFTA01070241 30 1 2 3 Page 114 actually have co make finding of fact that would support it before you can prohibit the comments as an acceptable alternative CO any prior restraint. So I'm denying the 1 2 3 Page 116 government officials and law onforconont officers. The objection is co relevancy first. Thor* aro ton thousand two hundred and fourteen pages of cp-nails exchanged between 9 motion on that basis at this point in tine because I just RPA attorneys and government officials and law enforconar'' have nothing in front of me other than this one motion an,' 5 officers. And in light of the fact that there is no 6 hearsay documents, which are attached at this point in 6 pending clain against Mr. Edwards, that discovery certain:, 7 time. 7 couldn't be relevant or material to any pending claim 8 MR. ACKERMAN: May it be without prejudice, You: 8 against Mr. Edwards. And in light of the allegations that Honor? 9 we have mad*, there is no reasonable argument that could be 10 THE COURT: Oh, any ruling like this is without 10 made that that discovery is reasonably calculated to load 11 prejudice. okay. But having maid chore, I would hope 11 to admissible evidence with regard co anything having to . 12 counsel, both sides, would understand the necessity for 12 with the counterclaim. 13 having a fair trial in this came. And ono of the comments 13 So in the present state of the pleadings no relevar.,y 19 the Supreme Court made is that ono of the reasons that the 19 can be shown co the counterclaim. No claim is pending. 15 courts do have nom* restrictions on the attorneys, aside 15 The beat way for Your Honor to handle this at this point is 16 from them being officers of the Court, is sometimes their 16 to grant our notion for protective order and if allegations 17 statements aro taken more authoritatively than others. So, 17 are made in the primary complaint which arguably could make 18 anyway, l'n denying the motion at this point and time. 18 this discovery relevant, they can ro-issue their subpoar — 19 Lot's calk about, I see nothing in the rules that 19 and we'll re-address it in the context of whatever 20 would prohibit the press of obtaining a copy of this. They 20 allegations are than made. I can't inagine that they era 21 can be in horn photographing and vidooing this entire 21 going to make any allegations that could make this 22 proceeding, as far as I know, without my permission. 22 Information relevant or material. 23 Couldn't they? 23 The prinary concern that we have is that if relevancy 29 MR. KNIGHT: Your Honor, the comment ♦e made to 29 generally wore determined, we need co review ten thousand 25 the court reporter before is we haven't over researched the 25 two hundred and fourteen pages of e-mails in order to make Page 22S Page I: 1 issue. Sho should chock with her office. 1 determinations as to whether there aro appropriate 2 THE COURT: I'm not prohibiting it, is what I'm 2 privilege and work-product objections. He don't want to 3 saying. 3 have to do chat, so -- 9 MR. KNIGHT: 1 don't know what their normal THE COURT: Lot the ask you what privilege or standards aro and wo did not want to torment on it. 5 work-product objections would exist between a communication 6 THE COURT: whatever she wants to do is hoar 6 between the law firm and third-parties? 7 Choler, I'm not prohibiting the proaa from obtaining it, 7 MR. SCAROLA: Tho common interest privilege that 8 if they want co obtain copies of the proceedings, they c. 8 existed between the prosecution of the civil claims and the obtain it. I'm not entering any such order because it 9 criminal prosecution that was ongoing with regard to 10 seems to me the cases also said the press is entitled to. 10 Mr. Epstein. The common interest, the common interest 11 I also point out that moat of chose cases were 11 privilege could clearly cover both attorney-client 12 Criminal proceedings. I've never aeon a civil case where 12 communications and work-product. So there is potential 13 there has been a gag order and, perhaps, there are. But In 13 privilege objections that need to be evaluated. There are 19 my twelve years, eleven years on the bench I've never aeon 19 potential privilege objections that need to be evaluated. 15 one in this courthouse or heard of ono but that doesn't 15 But at this point there could be no possible relevancy as 16 mean it's not proper in the right circumstances. 16 to those communications. 17 okay. Having said that, let's novo on. What's next? 17 MR. ACKERMAN: Your Honor, I chink it's 18 MR. ACKERMAN: Your Honor, chat would be Throe B 18 Important, first of all, if you have -- 19 and C. 19 THE COURT: Lot ma atop. Somebody prepare an 20 THE COURT: Three B and C. Okay. Go ahead. 20 order on the, what I just ruled. You don't have to write 21 MR. SCAROLA: Your Honor, this is the defendant's 21 out all the details but just -- 22 motion for protective order and objections to a notice of 22 MR. ACKERMAN: 1 will. Unless you want to do it? 23 deposition autos tocum addressed to the trustee, Herb 23 HR. SCAROLA: No, that's quite all right. 29 Stettin, awaking a substantial number of a-mail 29 THE COURT: All right. 25 communications exchanged between BRA attorneys and 25 HR. ACKERMAN: Your Honor, I think , ORANGE REPORTING 800.275.7991 EFTA01070242 31 1 2 Page 118 to address this now even though you've dismissed the complaint because for these reasons, and let me show you. 1 2 Page 12, force Epstein to settle for a lot of money but we have . couple of issues to deal with. 3 If you can take that packet that I gave you, I can 3 The next ono, 00007, deals with Otask and that is hero 4 demonstrate why this is relevant. 4 for two reasons. Ono, is to demonstrate to you why we THE COURT: What packet? S still need those records down the road. But also to show 6 HR. ACKERMAN: The packet of the documents that 6 how Mr. Edwards is using the media to feature the firm and 7 submitted to you -- 7 the Epstein case, which we believe was part of the Masi 8 THE COURT: Oh, okay. 8 schema. HR. ACKERMAN: -- that Mr. Se aaaaa is looking at. 9 when you go to the next one, 07304, it's an e-mail 10 THE COURT: Co ahead. l's listening. 10 from Mr. Edwards to Mr. Kassel, who is another lawyer that 11 HR. ACKERMAN: Okay. 11 is representing scow, of the victims in the crime victims 12 THE COURT: Although, I don't think I can get 12 rights act, where they nay we have nothing more on moving 13 this thing open, it's . 04, you have a opener 13 assets. And that's in the first part. And down below, 14 handy? Co ahead. 14 section three, he says I still think collection is going to 15 HR. ACKERMAN: Preliminary basis I think it is 15 ultimately be the key Issue and they have lack of proof of 16 unfair at this point to stop discovery while wo amend the 16 transfer of aaaaaa . Now, in the federal court proceeding 17 pleading as it related to this claim. He will be able to 17 they filed a pre-Judgment motion to prevent the trans:, 18 prove and allege that Hr. Rothstein ran a Penal scheme. 18 of assets, which was denied. And hero they aro 19 The e-malls that I'm going to show you hero aro e-malls 19 acknowledging potentially their lack of proof of being able 20 that Mr. Rothstein sent to the investors using the Epstein 20 to do it. 21 canon. 21 The next ono, 00150, is from Mr. Edwards to someone in 22 We have proved in deposition that the Epstein case 22 his firm directing her to send third-party subpoenas for 23 files that Hr. Edwards was prosecuting wore shown to these 23 prescription records, which weren't at issue and which va 24 investors and their counsel. We can establish that the 24 had placed in the complaint. 25 investigators that were working on Kr. Edwards' case 25 The next ono is. 00412, is where Hr. Edwards is sad::.:, Page 119 Page 12: 1 against Hr. Epstein were showing the law firm's case file, 1 to ono of the secretaries requesting a meeting with Sco' 2 to these investors. Ne can show, we can make an amendmew 2 at some point to discuss Epstein. How, this is 3 on the damages that will clear up the issues relating to 3 particularly important now, and as I go through because 4 damages. Mr. Edwards has testified in his deposition that he only And I'm going to show the Court now the relevance or S had a few, he had almost no conversations with 6 why on the overall claims, so the Court doesn't delay the 6 Mr. Epstein -- 7 discovery, but, specifically, the relevance with regard to 7 KR. KNIGHT: Mr. Rothstein. 8 this request and the inability at this point to deal with 8 MR. ACKERMAN: I'm sorry, Kr. Rothstein. Thank counsel's argument on a privilege. 9 you. (There an expletive deleted was used and claims 10 If you look at, I think it's the first document, 10 privilege on the other conversation. 11 01404. Okay. This is an e-mail Cron Russell Adler to Brad 11 So then we have 01605. I'm sorry, I skipped ono. Do 12 Edwards copying Mr. Nurik and it relates to the 12 you have the -- there is one from Cara Holmes, who is an ex 13 non-prosecution agreement, which is in our complaint. 13 FBI agent that is saying to Mr. Edwards, let's go -- I 14 Mr. Adler is saying to Hr. Edwards that ho had a great 14 don't have it right in front of me because but you have it 15 conversation with Mr. Nurik, who is another lawyer in the 15 right there. 16 firm, about the agreement and they wanted me to discuss the 16 THE COURT: I think our bent bet is to go after 17 possibilities. Nov, this is an ag aaaaa nt that's already 17 the close friends. 18 been entered into by Mr. Epstein and the government. 18 HR. ACKERMAN: Co after his friends. Which %Oa 19 okay. That takes us out of the Joint prosecution, joint 19 Contend supporta our abuse of protons claim. 20 defense argument that Mr. Scarola made. That also refers to 20 Then we go to 01605, which la Kr. Edwards to 21 the assets. 21 Mr. Piston, one of the investigators of Hr. Jenny, who he, 22 Okay. He go to the next one, 01661. This is from 22 in his deposition, denies having this type of conduct with, 23 Hr. Edwards to Mr. Adler dated July 18th, 2009, where 23 and talks about audio monitoring and recording in the law 24 Mr. Edwards said to Mr. Adler. I want to talk to you about 24 firm. And that someone talking on the speaker phone can be 25 a few things. If we make the right moves we may be able to 25 recording that. Now, we've alleged in the complaint that ORANGE REPORTING 800.275.7991 EFTA01070243 32 Page 122 Page 124 1 Mr. Rothstein represented to those investors that he had 1 Epstein case. And this is occurring within the same d-, 2 high-tech electronic surveillance equipment in cedar to 2 that these people are meeting to discuss the case. 3 9 make this Focai scheme go. With regard to this motion specifically, 05112, Mr. Edwards is directing an a-mall CO COO investigators, 3 4 5 If you flip over to 26335, Mr. Rothstein is sanding the a-mall co A.S. Discala, Clockwork, an investor, Dar. Kretschmor, who I mentioned, and Frank Priam and at the 6 Mr. Jenny and Mr. Elston and Hr. Roberts, is a third 6 last sentence ho s aaaaa my client clearly feels I have 1..,J 7 investigator, and Cara Holmes, the lawyer we just 7 to her about het funding. She is ono stop away from going 8 Mentioned, speaking LO the V.S. Attorney. She said if w. have proof of him being out of Florida, they will be in 8 9 to another lawyer and the Florida Bar. The next one 02992, we have another meeting going to 10 11 violation of cho agreement and she will prosecute him. Her and the state attorney both called on probation. This is 10 11 all of those people in the law firm. okay. And then 27013 wo have the documents of eta Epstein 12 why we want co get these records because we believe that 12 case that wore in Mr. Rothstein's office. 13 19 they were purposefully going out of their way in an effort to revoke his probation and this was subsequently a portion 13 19 So we have, contrary to what Mr. Edwards has testified In the deposition, those documents establish that 15 of something chat was litigated before the federal court 15 Mr. Rothstein conducted the Ponsi scheme with investors for 16 and found not co be accurate. 16 the Epstein cases and unlike Mr. Edwards' testimony, 17 05113 calka about serving Alan Dershowits, which we 17 thera's numerous meetings -- 18 discussed earlier. 18 MR. SCAROLA: I'm sorry to interrupt, Your Mo..... 19 01406 is calking about taking Me. SLOWS deposition. 19 but Mr. Edwards has never ever denied chat Mr. Rothstein 20 21 22 23 And we can put chose matters into the complaint, as you talked about earlier. 01212 is the proposed subpoena for Dershowits. And Alan Oarshovicz vas one of Mr. Epstein's criminal lawyers 20 21 22 23 was engaged in a Ponsi scheme. And to Cell this Court that ho has testified in his deposition chat chat didn't occur, that's Just false. I don't know what this is all about but what we're supposed to be talking about is whether the 29 in the criminal complaint, criminal camas, and they're 29 documents chat wore subpoenaed with regard to the federal 25 subpoenaing him for deposition in this case. 25 government have anything to CIO with the pending Sago 123 Pogo 12' 1 Now, 26417 is a Memo from Mon Jenny to Scott Rothstein 1 counterclaim and I haven't hoard a word about that. 2 advising him that the lawyers and investigators working on 2 MR. ACKERMAN: Your Honor, I have -- 3 9 the Epstein matter are meeting on the twelfth floor at two p.m. to discuss where we are in the investigation. And this is crucial for a number of reasons because it provides 3 9 THE COURT: Let's do kind of focus in on the Issue hero. MR. ACKERMAN: I will. lho point of this was to 6 ono of the links, we believe, between Mr. Rothstein and Mr. 6 establish cho parameter from which we made the request to 7 Edwards through these investigators where Mr. Stott 7 show the relevancy of it. Tho point I'm trying to make 8 Rothstein is going to these meetings, learning what is going on and this is the Saari time period where he is 8 9 with Hr. Edwards is that he testified chore was a limited number of people involved in the prosecution of this case 10 11 pumping up his eases, these Epstein Cases to these investors, which well show in subsequent e-mails. 10 11 against Mr. Epstein when these documents clearly show that that's not cho ease. So we have requested, because we 12 Okay. Nov, wo begin the a-nails chat Rothstein, 12 believe at the time they got the non-prosecution agreement 13 19 Mr. Rothstein is sending to the various investors. A. J. Discala is one of the investors. And then if you go 13 19 that deal is over with, there is no basis at all to assort a joint privilege claim. Instead what it appears to bo In 15 16 to 27303, Mr. Rothstein is sanding out co Frank Priam who I believe is ono of the investigators, we have no money in 15 16 that they are looking to try and interfere with the non-prosecution agreement. And so, we, because that F. 17 for this client. She left screaming. This is really bad. 17 Of our theory of our case, if you go CO the subpoena, 18 We can lose the entire plaintiff's group, which we believe 18 Exhibit 1, we have listed all a-mail communications het00, 19 related to Mr. Epstein's cases. 19 the attorney and employee of this Rothstein firm, which 20 21 If you look at 04996, again we have another meeting for Mr. Edwards to the number of people chat wore involved 20 21 list those people, which we believe wore involved with it and wo specifically list the U.S. Attorney, the State 22 to discuss this matter on October 22nd, 2009. 22 Attorney, cho Federal Bureau of Investigation, the Pal , 23 Mr. Rothstein in 26017 says I cannot have this blow-up 23 Beath Police Department and any investigator working Icz 29 in my face. These clients talk co each other. If I burn 29 the state of Florida and anyone that represented an 25 this client, I can end up losing all my clients in the 25 individual with a claim. SOS, if you go to -- ORANGE REPORTING 800.275.7991 EFTA01070244 33 Page 126 Page 128 1 THE COURT: Walt a minute. Where is the -- 1 they're doing is contrary to their interest and got it 2 HR. ACKERMAN: If you go co ny response. 2 revoked, you chink that is an abuse of process? 3 THE COURT: I'm looking ac your response. Okay. 3 MR. ACKERMAN: When the agreement has already 4 HR. ACKERMAN: Okay. Under the ono. been made. Okay. Your Honor, and Chia is, this was an THE COURT: I got it. One. 5 agreement that was reached. Okay. And they're attempting 6 MR. ACKERMAN: Next page Schedule A is the -- 6 to undermine the agreement. 7 MR. KNIGHT: Lot the Judge catch up with you. 7 THE COURT: I'm having trouble hero. You're 8 HR. ACKERMAN: I'm sorry. Schedule A has the 8 tolling ma or you're suggesting that a victim cannot go to documents subpoenaed. 9 the government, oven after a reached agreement and say, you 10 THE COURT: Okay. Go ahead. 10 know, this is bad. I didn't have the input put into it or 11 HR. ACKERMAN: If you go co Exhibit 2 in response 11 whatever the reason they think it shouldn't be existIno. 12 to an e-mail from Mr. Litman, who is the attorney for the 12 mean, isn't that -- 13 bankruptcy trustee, wo gave him the specific names for a 13 HR. ACKERMAN: Your Honor, first of all -- 14 specific search for this subpoena. Aa you can see, there 14 THE COURT: You think that's an abuse of process? 15 aro lawyers in the V.S. Attorney's office. There aro 15 HR. ACKERMAN: We're not calking the victims. 16 people in the Palm Beach Police Department. There aro 16 We're talking about RRA doing this. And not only that, we 17 people in the FBI. And there are people in the State 17 won't know until we got them to see whether they're related 18 Attorney's Office. If you go to Exhibit 3, this is 18 to the victim or related to this case. You don't have to 19 Mr. Litman's response. Ho talks about refined e-mail 19 do an in camera review. We can look at the documents and 20 search, which aought documents reflecting the 20 determine whether they relate to a victim. They're still 21 communications between RPA lawyers and government 21 not privileged. They're going to third-parties. We don't 22 officials, which, if not all, are law enforcement officers. 22 have a privilege issue hero. If he is advocating a case on 23 Ho has a disc of those documents that are responsive and 23 behalf of his victims, there is no privilege. He's 24 that are Bates stamped. 24 potentially in an adversary situation and there is a 25 THE COURT: Whore is that? 25 present adversary proceeding involving this crime, xhich I Page 127 Page lg 1 KR. ACKERMAN: That's Exhibit 3 to my response. 1 have placed in this complaint. But if he is advocating 2 THE COURT: Okay. Go ahead. Really, focus in on 2 that, then chore is no privilege and we should be able to 3 the issue as co relevance, at this point and time. 3 look at those documents to see if, in fact, that's what 4 MR. ACKERMAN: The relevance is, Your Honor, first of all, we believe that part of this Ponsi schema was 4 they were doing or they were using it based on what I've given you co show that they were really trying to, to 6 designed to do things to Mr. Epstein ao that Mr. Rothstein 6 effectuate this Ponsi scheme. 7 could tout Chose things to these investors to increase th. 7 THE COURT: These are relevant to shag what 8 amount of money that they were investing. In our amended 8 again? I 'n really -- I'm sorry, I 'n dense but -- complaint we went through the things, that ho told the 9 KR. ACKERMAN: Your Honor, we believe that 10 investors. That they had the eavesdropping equipment -- 10 Mr. Rothstein, and we believe Kr. Edwards participated in 11 THE COURT: This is, this is the government. 11 this, undercook a number of things in the Epstein . • 12 This is the government, not the investors. It's not 12 that would assist them with the marketing of this 13 communications with the investors. What aro you, you 13 Investment. 14 looking for any communications between V.S. Attorneys, 14 One of the things we believe they did was to proceed 15 police and chose people? Hoa -- I nean. 15 to interfere -- to proceed to destroy this non-prosecution 16 MR. ACKERMAN: Because we believe there was an 16 agreement that had already been reached between the 17 effort to torpedo this non-prosecution agreement. We 17 government and between Mr. Epstein. Me believe that they 18 believe that they wore taking steps co cause a broach or 18 undertook surveillance, for example, in order to effectuate 19 get the government to revoke it after Kr. Epstein had 19 that. We believe that had nothing co do with these cases 20 agreed to it. We believe that that is an abuse of process. 20 that they were prosecuting against Kr. Epstein on these 21 Subpoenas in those civil cases -- 21 three people. Me believe it was a concerted effort to 22 THE COURT: Let me get this straight. Are you 22 attempt to have Mr. Epstein's probation violated. And if 23 saying that an alleged victim of a crime has no right to be 23 you look at the privilege log, there is a designation 24 involved in or co petition the government or oven to 24 between Paul Kassel and Mr. Edwards relating to violating 25 suggest to the state attorney or anybody else that what 25 his probation. ORANGE REPORTING 800.275.7991 EFTA01070245 34 1 2 3 4 Page 130 THE COURT: Is there already a privilege log regarding thane? Thera is not, right. HR. ACKERMAN: There is a privilege log that jut describes the subject matter of that communication. It 1 2 3 4 Page 132 documents I'm trying to give the Court where our inference➢ can be that can lead to discoverable information, okay. And I think for the Court to postpone this until we have an amended complaint when we have thi➢ information in front of does not relate to thin document because the privilege lou S u➢, which we believe show➢ a link to a set of pattern➢ 6 was not prepared with the document➢ we're talking about. where they are talking about the non-prosecution agreement, 7 THE COURT: Okay. So we don't have a privilege 7 where they're going after hi➢ friends, where there are 8 log? HR. ACKERMAN: Not related to these. 8 9 numerous meetings with the whole firm at the time this investment i➢ being made, that that show➢ a plan and 10 11 THE COURT: Okay. I understand. Yes, air. HR. SCAROLA: It is extremely frustrating to have 10 11 this i➢ relevant. And if the victims are adverse to the government, then they don't have a joint privilege. And I 12 counsel repeatedly talk about what he believes when his 12 ➢ubmit to you that these are relevant for what our ultimate 13 14 beliefs are neither relevant, nor, based upon facts and, indeed, are directly contrary to the facts. 13 14 theory of the cane is going to bo, which you can see, and what these documents that we have right here demonstrate. 15 16 The crime victims right act complaint filed by Mr. Edwards was filed by Mr. Edwards before Mr. Edwards 15 16 THE COURT: Okay. What is the next one? All of these orders will b➢ out by Friday, gentlemen, because I'm 17 ever had any association what➢oever with RRA and before he 17 going -- actually b➢ out by tomorrow. So go ah➢ad, what is 18 ever riled any civil action on behalf of his clients 18 the next ono? 19 because his client victims were upset about the sweetheart 19 HR. ACKERMAN: Okay. Your Honor, I would like, 20 21 deal that Hr. Epstein had gotten, he had every right, he, Mr. Edwards, had every right and, indeed, a responsibility 20 21 thin one, Three D involves an amended supplemental motion based on, and to be able to compel Hr. Edwards to answer 22 23 to hi➢ clients to vigorously petition the government for the redre➢s of what they perceived to be a serious 22 23 question➢ at a deposition. Coe of the things, since we have a number of issues relating to privilege, that there'➢ 24 grievance. 24 one thing that I would like to address in this deposition 25 To compound all of this, there is no complaint that i➢ 25 because it deals with a reque➢t to produce on another Page 13: Page 13 1 presently pending. And when counsel repeatedly talks about motion that relates to damages, okay. If the Court can 2 interference with the non-prosecution agreement is part or 2 turn to Three C, Three D. And I'm trying to save 3 4 the theory of our case, there is no cane right now. They haven't stated a claim. And the only claim they attempted 3 some time. HR. SCAROLA: May I make a suggestion to nay' to state was an abuse of process claim, which has got S nada time? Hr. Edwards has been deposed extensively 6 nothing to do with tortious interference with a 6 already. If there la any, any circumstance under which 7 non-prosecution agreement. 7 he's going to be deposed again, it, certainly, ought to 8 They, when repeatedly given an opportunity to relate this requested discovery to an effort to obtain evidence 8 9 coma after he knows what the charges are against him and not before. 10 11 reasonably calculated to relate to the pending counterclaim, aro unable to do it because it can't be done. 10 11 KR. ACKERMAN: With one exception, and the reason I'm a➢king now aro the damages in their counterclaim. Okay. 12 Your Honor, respectfully, should grant our motion for 12 The damages in their counterclaim, he was asked 13 14 a protective order. And if after they have decided what it is they want to try to sue Mr. Edwards for, they have 13 14 extensively -- THE COURT: What are you asking me to do? Ara 15 16 restated another claim and they believe that evidence in the hands of the trustee with regard to communications 15 16 you asking me to redepose him on this ono question? HR. ACKERMAN: I'm willing to defer the 17 between ERA attorneys and government officials and law 17 deposition on this one issue to a time where it makes sense 18 enforcement officers is relevant and material to whatever 18 to address other issues. B➢t I don't want this objection 19 now fabricated claim they attempt to state, we can come 19 that he's made in the deposition to keep me, keep us from 20 21 back before Your Honor and address it in that context. Thank you, air. 20 21 getting the information for his damages in the counterclaim, which we have not received and is a 22 23 HR. ACKERMAN: Your Honor, may I give a brief response? 22 23 for another motion. They rai➢ed objections as to how much you were making. We asked him -- let me back up. 24 THE COURT: Briefly, yea, sir. 24 go -- 25 HR. ACKERMAN: Again, when I went through these 25 THE COURT: If thin i➢ a production req,,.- , ORANGE REPORTING 800.275.7991 EFTA01070246 35 1 2 3 9 6 7 8 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Page 134 is the request what we're dealing with. I mean, seems nonsensical for me to decide questions in the deposition - this point until we know exactly who is suing who for wiu., and then you can get them altogether ac ono tire. MR. ACKERMAN: I can. The only reason I'm bringing is up is in the deposition we attempted to make an inquiry on financial parts that we believed wore relevant to defending the counterclaim and he raised an objection of economic privacy. That is also raised in our request to produce. THE COURT: You can still do a request to produce, if chat's what you want to do. I don't think we deal with Sc ac the deposition stag*. MR. ACKERMAN: So just defer this motion? THE COURT: I'm not going co, seems silly tone to order, unless you want him to, just co answer it by, if I grant it, anavor it by way of interrogatory. I don't think you are going to like that. MR. ACKERMAN: Well, at some point we need to rodeposo him on the damages. THE COURT: My point being is if you're not going to accept an answer by way of interrogatories, then you're going to have co rodepose him anyway. We're not going to do this today. Not that. It don't make any sense. MR. ACKERMAN: Okay. We'll defer and go to the 1 2 3 S 6 7 8 9 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Page 136 We wanted the agreements between Hr. Edwards, RRA, and Rothstein. THE COURT: It does ask for investor. MR. ACKERMAN: Pardon me? THE COURT: It says or investor. MR. ACKERMAN: Okay. THE COURT: And/or any other attorney or investor related to any aspect of any plaintiff's case. Mot just -- MR. ACKERMAN: Right. So ho says that ho doesn't have the investor ones but ho hasn't produced the ones between Edwards, RRA and Scott Rothstein. THE COURT: Okay. MR. ACKERMAN: 'Cumber nine, we ask for cost or payment that the Rothstein firm had against Mr. Edwards. There's no priviloge claim there. Pardon? MR. KNIGHT: Against Hr. Epstein. MR. ACKERMAN: Against Hr. Epstein. I'm sorry, Your Honor. Okay. No felt that that was related to ho. the cases were being used. S*s believe chat this Pons: ache= was designed to raise money co fund these cases. Number con, we ask for the documents received by you relating to the assertion of a lion by the trustee. Okay. Because. that relates to his conpensacion on the Epstein which is part of the damages of his counterclaim. Because in order to find out what he's bean danagod, we 1 2 3 9 6 7 8 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Page 135 request to produce. THE COURT: Which ono is chat MR. ACKERMAN: Okay. Four A. That also involves another issue. To simplify things a, point -- THE COURT: Four. MR. ACKERMAN: We sent a request to prod, It's attached co the motion Exhibit 1. THE COURT: Again, you're. dealing with priviloa. Issues here, as well as other stuff, right? MR. ACKERMAN: Well, chore are a number of objections here that don't raise privilege. Okay. We asked for, I believe, if you go to Paragraph Five of the motion refers co Paragraph Six of the request whore we requested fee sharing agreements relating to the case. Ho has a counterclaim that seeks damages for, among other things, his reputation, interference with professional relationship, loss of value of tine, required to be. divorced from his professional responsibilities. So we believe the compensation relationship between Mr. Edwards and RRA and anything related to the Epstein cases should been produced. His objection to this number six says relevance, not reasonably calculated co load to discoverable information, and chore are no agreements with investors. But we were not asking for investor agreements. 1 2 3 S 6 7 8 10 11 12 13 19 15 16 17 18 19 20 21 22 23 29 25 Page 13 need to know what he was making at the firm at the time and how the compensation formula was sec up and what he earned on the various eases. Number 22 is all documents that support your claim ' damages. Okay. There is an objection co that that i:' not determined. They can't formulate. Ho says they do." know what the damages are. Okay. So we need to got that Information. THE COURT: Okay. Yea, sir. MR. SCAROLA: Sot yet determined is not an objection, it is an answer. The only argument that was made that relates to relevance to the pending counterclaim Is evidence With regard CO damages claimed by Mr. Edwards. Mr. Edwards is not claiming that ho lost any income from RBA. RRA has folded. It went into bankruptcy. It folded and went into bankruptcy as a consequence of Mr. Rothstein's criminal activity. We do not blame Mr. Epstein for the destruction of the law firm and any economic loss chat resulted as a consequence of the destruction of the law firm to Hr. Edwards. Therefore, that lino of inquiry is irrelevant and lenatorial. what we have alleged is that Hr. Edwards has been, and continuos co be, diverted from other income producing activity as a consequence of the prosecution of those spurious claims, whatever they may ultimately wind up ORANGE REPORTING 800.275.7991 EFTA01070247 36 1 2 Page 138 being, but what they have been up until now, as wall, Including the need to defend against Florida RICCO 1 2 Page 140 outcome of that balancing test ought co be, I'm sorry, you don't get it at this point. There just isn't enough hero 3 4 that no longer exist, and civil remedies for criminal activity stains that no longer exist against him, th-,' 3 for you to got it on the basis that ho has told you trL what he has lost is his time and the value of his time. attention was diverted from other income producing S MR. ACKERMAN: May I respond? 6 activities as a consequence of the need to defend 6 THE COURT: Yes, sir, just ono second. But if ho 7 this case. That's got nothing to do with how much money h, 7 couldn't sell his time before, I roan, like you say, I just 8 made historically, if anything, from RRA. MR. ACKERMAN: Your Honor. 8 keep getting back to the fact that if his time was not productive or ho couldn't sell his tine before, I don't 10 11 THE COURT: What about the idea that past performance is a predictor of future performance in terms 10 11 know what he made with this law firm. It may have been a lot of noway, it may have been nothing. I don't know. How 12 12 could we say that's not, at l , calculated to lead to 13 14 MR. SCAROLA: We're talking about the lost value of the tine, that's what we're talking about. 13 14 admissible evidence in this case as compared to what th, potential value may be. 15 16 THE COURT: I understand that. But how do we measure his tine? 15 16 MR. SCAROLA: That, Your Honor, would to a relevant question. His ability to productively use his 17 MR. SCAROLA: Because he's got a standard hourly 17 time in the past would to relevant. But Brad is primarily 18 rate. 18 a plaintiff's lawyer. That's principally the work that he 19 THE COURT: Okay. But, I moan, it's like 19 does and has boon doing. Your Honor knows that this yoar'a 20 21 somebody saying, wall, I can no longer detail cars and I make X amount of dollars detailing cars but you've been 20 21 productivity is a consequence, or potentially a consequence, of effort that was made and begun five years 22 23 doing that work for twenty years, can't you find out what you did before. 22 23 earlier. THE COURT: Let me suggest co you, I've had cases 24 MR. SCAROLA: Well, I don't think that's an 24 where the plaintiff in a personal injury case was a 25 accurate analogy. In the case or an attorney, as I think 25 practicing attorney. And they claim as a result of the Page 139 Page 14: 1 it was Abraham Lincoln observed, what we have to sell is 1 Injuries sustained in the accident they're unable to work 2 our time. And chore is only a finite amount of that tins,. 2 like they wore and, therefore, have lost earnings or 3 Regardless of what Brad Edwards may have made from other 3 ability to earn money in the future as a result of th.., 4 sources historically or prospectively what he may make in physical limitations, injury or whatever it is. I Can', the future, he lost time that could have bean devoted to S Imagine in that kind of rasa the attorney could caw and 6 other income producing activity. What probative value does 6 say, well, you can't find out what I nade before this 7 it have to know, for example, that in 2010 Brad Edwards 7 Injury because that's not relevant co what my time is worth 8 made $5,000 and in 2011 Brad Edwards nado 820,000, if Brad 8 today. Edwards could have made $25,000 in 2011, if he wasn't 9 MR. SCAROLA: I absolutely agree with you. In 10 11 obliged in 2011 to be sitting in this courtroom all day today as a consequence of having boon sued for purposes of 10 11 that kind of case, I think that, I think it is a relevant and material inquiry. But let's assume those same sat of 12 putting him in this courtroom instead of enabling him to 12 circumstances and the attorney says I was, as a consequence 13 14 make a living. So I don't know how you draw any reasonable inference 13 14 of my Injury -- I'm a lawyer who works on an hourly basis and as a consequence of my injury I missed two weeks of 15 16 from that other information. Would it be relevant to know what his standard hourly rate is, yes. Would it to 15 16 work. Or I work on a salary and I nissed two weeks of work and this la how much I gat paid and I didn't gat paid for 17 relevant to know how much time ho has had to devote to this 17 that two week period of time. All you got -- 18 case, those would be relevant and notarial inquiries. But 18 MR. ACKERMAN: Your Honor. 19 how much he nada from other sources is so dependant upon 19 THE COURT: Wait a minute. 20 factors that aro entirely independant of the damages 20 MR. SCAROLA: All you get in corms of discovery 21 Claimed in this case, that they have no relevance and 21 Is what you need to know for what the value of that time 22 23 materiality. And, certainly, in conducting a balancing test, when they don't have probative value and we weigh 22 23 was. That's all you get. And you don't gat to know what he was making five years earlier at a different law firm or 24 against the absence of probative value the invasion into 24 what ho nay be making today because that's not relevant to 25 his economic privacy, I suggest to Your Honor that the 25 the load that ho had during that limited period of time. ORANGE REPORTING 800.275.7991 EFTA01070248 37 1 Page 142 And that's what we're saying, what Brad Edwards has lost is 1 Page 144 to the deposition of the plaintiff and a motion to compel 2 the value of that time that has to have been devoted to 2 relating to cho plaintiff. And then we have some 3 4 this case as a consequence of his having been the victim of an abusive process. 3 4 objections co request to produce that each has lodged against the others. MR. ACKERMAN: Your Honor, I've attached the HR. SCAROLA: We don't want co redepose 6 interrogatory answers. We've asked hire what the amount e: 6 Mr. Epstein until after the new complaint is filed. 7 the damages alleged to bo, it's in excess of one million. 7 can be deferred. 8 They have said emotional distress, normal anguish, which I'm not sure is a claim that can be brought. But he's 8 9 THE COURT: Okay. So which notion you want to hear next? 10 asked for loss of reputation and standing in the community. 10 HR. ACKERMAN: Hold on a second. 11 Loss of value of time spent in dafonso and in responding to 11 THE COURT: You all figure it out and I'.. 12 this process. In the counterclaim ho calks about damages 12 back in a few ninutes. 13 14 to his reputation, interference with professional relationships, loss of a value of tine. Na can't begin to 13 14 HR. SCAROLA: Thank you, sir. IBREAK TANEN' 15 16 17 make that evaluation for the amount of money that's claimed without being able to look into what relationships he had, what fee agreements he had, what money he made so that we 15 16 17 THE COURT: Thank you. I wasn't back there twiddling my thumbs. Unfortunately -- not unfortunately. Fortunately, I'm going on vacation Friday to sae my 18 can determine whether, in fact, ho has boon damaged by this 18 grandchildren. And needless to say it always happens, 19 or by something also that's happened in his life. And one 19 there is all of these emergency notions chat are filed that 20 21 of the ways we can do it is by looking at what his compensation plan was. What agreements he had with the 20 21 have to be ruled on by Friday so I was dealing with one of our laws clerks on issues I've never hoard before in my 22 23 firm. What he had with referral lawyers so we can establish whether there has been, in fact, an interference 22 23 thirty-five years practicing law. HR. SCAROLA: Law clerk? 24 with those professional relationships and find soma way to 24 THE COURT: We have law Clerks. No have to share 25 goat to this million dollars which they aro claiming and 25 the law clerks but we have law clerks. Okay. Which one we Page 143 Page 14' 1 that we now have to defend. So it is, relevant and likely 1 doing now? 2 to load to relevant information. 2 HR. SCAROLA: Three G. 3 4 THE COURT: Okay. What about the -- I don't tr.,. if you mentioned this, Mr. Scarola, cho documents evidencing coat and payments of bills and the trustee liar. 3 4 THE COURT: Three G. Okay. HR. ACKERMAN: It's really in relation to Thra., and N. 6 for attorney's foes and costs? 6 THE COURT: Okay. 7 MR. SCAROLA: Couldn't have any relevancy at al: 7 HR. ACKERMAN: Okay. If I could also ask the 8 to the pending counterclaim and there is no pending claim. THE COURT: Okay. 8 9 Court to alp over to J. Just keep your finger there. We filed basically, what had occurred, is that Mr. Scarola 10 11 HR. ACKERMAN: Your Honor, chat goes to, what, ultimately, there is going to be a number of factors that 10 11 re-noticed Hr. Epstein for deposition, for video deposition on April 23 of this past year. Now, I communicated with 12 make up what Edwards' salary was and what ho made and where 12 Mr. Scarola co find out what the nature of the deposition 13 14 it carte trop. Okay. And if ho didn't actually not money from the cases but it had to go to cho trustee, that may 13 14 was going co be about since he had testified extensively already in deposition. Mr. Scarola's response was that ho 15 16 affect the calculation and the number. And what we're trying to do is make a determination as co the overall 15 16 was going co go into Inquiry relating co public statements made by the plaintiff regarding his crininal activity, any 17 impact on hie ability to earn money and anything that 17 documents supporting -- he was going co cake the position 18 relates to what the foe is, what the costs wore, or 18 that the plaintiff had waived his Fifth Amendment right. 19 affected his income and his relationships is relevant. 19 Ho had taken cho position that ho had lost his Fifth 20 21 22 23 THE COURT: Okay. What is nowt? I'll tell you what, I'm going to have to take a short break. You can stretch your logs, as well. Tell no which one is the next one. 20 21 22 23 Amendment rights by operation of law and that was the basis of the deposition. So I sent a request co produce out, which is in J, based on that and received objections to all of those matters. So we filed a nation for protective 24 MR. ACKERMAN: Hold on a second, Your Honor. I 24 order based on the grounds that he had already been 25 guess the next ono would be the protective order relating 25 deposed. That no meaningful ground:. had been alleged to ORANGE REPORTING 800.275.7991 EFTA01070249 38 Page 146 Page 148 1 justify taking another deposition. Particularly, on the 1 placed on the Internet, we need to have a hearing on that 2 grounds that ho had waived his Fifth Anendmont and we had 2 so that the Court can place some restriction on the use or' 3 9 sought the discovery to find, understand the basis of clu., so we could understand why we were being, my client was 3 that so there is no unfair prejudice and vo can't do 2 at this point in time. So that was the basis being deposed again. And we had also requested in this S motion. 6 motion that it not be a video deposition. And the reason 6 THE COURT: Yes, sir. 7 why we were requesting that it not be a video deposition is 7 MR. SCAROLA: This was a dually noticed video 8 particularly neaningful in light of the discovery request that this Court is about to rule on where he may be asked 8 9 deposition. Counsel has acknowledged the fact that there were communications about the scheduling of this deposition 10 11 several questions of a specific sexual nature that than are placed on videotape on and then goes into the public domain 10 11 and what we intended to do. Whilo a notion for protective order was filed on April 8 of 2022, no effort was ever made 12 and the prejudice to that is incredible and should not be 12 by the plaintiff to sot the motion for protective order for 13 19 alloyed. So we filed this motion. He advised counsel that unless, we had co have a hearing on this, and that before 13 19 hearing. They just unilaterally chose not to show up. mare's a certificate of non-appearance. No had a emu:- 15 16 he could be redeposed on this new infornation we needed a hearing. So we advised him in advance. Mr. Epstein, we 15 16 reporter present vo wore there. He were ready to proceed and they sinpiy did not appear. 17 also, I think, had a problem with a dace but he did not 17 Mr. Epstein has made numerous public statements to 18 appear for the deposition so Mr. Scaroia has filed a motion 18 reporters. And his denials about having engaged in 19 to compel and for sanctions not to appear. 19 misconduct with minors have been reported. I want to ask 20 21 And so our position, basically, is chat the grounds that he sought co depose him on that ve were advised was 20 21 him about chose public statements that he has made. I want to know whether the reports of chose public 22 23 not appropriate. And that we did not, particularly, we had a good faith concern, in light of the discovery that he was 22 23 statements are accurate or not accurate. I want to know what the denials aro based upon. I want to know whether 29 attempting co cake, of the vast infornacion into prior 29 admits having spoken to those reporters or denies had: 25 sexual issues, that those become, be placed on a video 25 spoken to then at all. All for purposes of determining Page 147 Palo 14 1 deposition and then become something in the public domain. 1 whether there, in fact, has been a waiver of his Fifth 2 THE COURT: Aro you asking no co prohibit the 2 Amendment right to retain silent. Because he cannot choose 3 9 deposition, prohibit the video deposition or prohibit or require hin co produce the documents? I'm not sure. Or 3 to remain silent when he is deposed but speak to ovary court reporter who he can got in front of to toll them - all of the above? S Is all silly because I really didn't do anything wrong. 6 MR. ACKERMAN: If he's going to depose him on the 6 THE COURT: You said court reporter, I don't 7 Fifth Amendment, I want the documents chat allege that that 7 think you meant. 8 10 11 was, that chat vas done. I think that's a reasonable request. It's a subject that he's clainod numerous times that that has occurred. And before any deposition occurs on that we want the documents that establish that. 8 9 10 11 MR. SCAROLA: I meant reporter, not court reporter, you aro correct, Your Honor. Thera is, obviously, significant evidentiary value to having the depositions recorded on video for purposes of later 12 secondly, vo felt that he should not be deposed on 12 presentation before a jury. The Florida Rules of Civil 13 19 15 16 that, on that issue because all it mould do -- I mean, he had already been extensively deposed. And he, Mr. scarola, needs to cone in and establish why he wanted to take his deposition again and that's not in his notion to compel for 13 19 15 16 Procedure recognise that value. And the concerns that Mr. Ackerman has, if they need to be addressed at all, certainly, don't need to be addressed by a prohibition of the videotaping of the deposition, which while he 17 sanctions. And that needs to be presented to the Court and 17 appears to be backing off from that now, is what his motion 18 approved before any sanctions or order compelling is set 18 asked for. 19 forth. 19 Ne aro entitled to take a video deposition. As I've 20 21 And third, I can't, the rules allow a video deposition but the Court can make restrictions on how it's used. 20 21 told Your Honor, I don't want to do it until after I know what the new allegations are in the now complaint. We 22 23 And our concern in this case, as I articulated before, that if we end up going down this rabbit trail of this, the type 22 23 didn't have a new complaint as of the tine of this request for deposition but I do now want to delay it until such 29 of discovery that they have asked for, the sexual nature, 29 time as the video deposition can be taken to cover all of 25 and then that is on a video deposition and it can than be 25 the issues that aro raised in the new complaint. ORANGE REPORTING 800.275.7991 EFTA01070250 39 Paqo no Page 152 1 But I do want to be able to video it when we take tr., 1 burden, as I understand it, the way the rule reads. 2 deposition. 2 HR. ACKERMAN: I don't believe that's the case, 3 THE COURT: Well, I'm not going to rule on when 3 Your Honor. 4 you have to take the deposition. If I allow it, I'm just 4 THE COURT: I thought it states it doesn't lim'' going to rule as to whether or not you're allowed to take 5 It unless -- 6 the deposition -- 6 HR. ACKERMAN: But the case law does allow 7 HR. ACKERMAN: Your Honor, nay I respond? 7 protection -- 8 THE COURT: -- in the areas we're talking about. second, whether or not you have to produce the documents 8 9 THE COURT: True. HR. ACKERMAN: -- to a party that's already been 10 you have requested. 10 deposed. 11 HR. SCAROLA: Let ma addre➢s that, Your Honor. 11 THE COURT: I agree. 12 THE COURT: And third, whether or not it can be 12 HR. ACKERMAN: And that'➢ ny point. No's already 13 14 by video and, if so, what restriction➢ I put on any video that'➢ done. 13 14 been extensively deposed. THE COURT: But, I guess what I'm saying, maybe 15 16 HR. SCAROLA: Had this deposition gone forward, as it ➢hould have gone forward on April 13, I obviously 15 16 I'm saying the same thing by different, different wording. HR. SCAROLA: What has repeatedly been referred 17 would not have been obliged to respond to a request to 17 to a➢ an extensive deposition is a series of Mr. Epstein 18 produce in advance of that deposition. And the selection 18 reciting a script provided to him by counsel about how he 19 of particular documents for u➢e during the cour➢e of the 19 is a➢serting his Fifth Amendment privilege even though he 20 21 deposition is attorney work-product. I ought not to have to give this party a script of what he is going to be asked 20 21 would like to be able to answer my questions, but his lawyer has instructed him not to answer ny questions and ➢o 22 23 24 about in advance. I don't think I'm obliged to do that. Obvioualy, I'm not obliged to absent an order of the court, and if the Court did order ma to do it, I would do it. But 22 23 24 I'm not going to answer your questions and it goes on for about three paragraphs. HR. ACKERMAN: Your Honor. 25 I don't think that I should have to give them a script of 25 HR. SCAROLA: And it'➢ the sane responf.‘ q Page 151 Page 15: 1 what I'm going to be asking about in advance and that's, 1 over and over and over again. 2 basically, what they're asking for. 2 KR. ACKERMAN: Your Honor. 3 4 HR. ACKERMAN: Couple of things, Your Honor. This nation was filed at the time you wore basically soya.. I need to have an all day hearing and we're going to claret 3 4 KR. SCAROLA: It was not an extensive deposition as to the nerits of this case. And I have clearly stated why I need to rodopose him because I believe ho has now 6 any ruling on discovery and stuff until you get your hand, 6 waived his right to Fifth Amendment privilege and I want to 7 around this case. And so based on the statements the Court 7 explore the basis for making that claim. And in addition 8 made it was sot for today and it would have been mat in May, if we had reached it in May, but that's why it wa➢n't 8 9 to which he will have made now aaaaa tions for now affirmative relief at some point between now and thirty 10 11 noticed because it was my understanding that you were going to, you needed to understand what the issues were before 10 11 days from now and I want to ask him a lot of questions about ovary claim for affirmative relief he's making. 12 you could -- 12 KR. ACKERMAN: Your Honor, we keep going back to 13 14 THE COURT: Let's just deal with the subject of aspect not the procedural. 13 14 this. IC you look at Mr. Epstein'➢ deposition, when Ma's asked questions about the abuse, what I'n going to call the 15 16 17 KR. ACKERMAN: Okay. secondly, Mr. Scarola hasn't ➢hown why he needs to be deposed again. No hasn't shown why those weren't addressed in the previous 15 16 17 abuse of process case, he answers those. what he has taken the Fifth amendment on are all of those sexual matters, which we have contended have no bearing on thin case. 18 deposition. Okay. We has already boon extensively deposed 18 THE COURT: We're not dealing with that right 19 already and he hasn't mat his burden to show that he's 19 we're dealing with the questions that ho wants to ask 20 21 entitled to be deposed again on those issues, at least until -- 20 21 him with regard to the fact that ho nay or may not have waived his Fifth Amendment privilege just by making public 22 23 THE COURT: I understand the rule to be the opposite of what you just said. I understand the rule to 22 23 statements or discussing it with third- That's -- KR. ACKERMAN: Then I think, then I think ho 24 not limit the typo, scope of discovery unload it's sham 24 needs to cone to this Court and produce the documents 25 that it'➢ oppressive, burdensome. And that becomes your 25 show that that has been waived before wo have to undergo ORANGE REPORTING 800.275.7991 EFTA01070251 40 1 2 3 4 Raga 1,4 deposition about it. No had the opportunity to do it. H. hasn't shown chat ho could have or would have boon able do it before. And at this point in tine we've made a request for it. And the Court, I believe, in order to 1 2 3 Page 151 arguing about here have boon produced co a third -party. And I believe chat that would then allow us to got the documents that aro subject to the privilege and we can use that to prepare our complaint. The Court denies it, wo properly protect the parties from someone that's already 5 still are on crack. But it's vary important because they 6 boon deposed is to determine whether, in fact, Chore la A 6 have maintained. No have had six or seven months of 7 prima facie basis for a waiver, otherwise, we're going to 7 litigation over those issues over privilege. You Iasi... 8 bo arguing about it in the deposition. 8 stay to us chat we can't go subpoena cho trustee and then THE COURT: Sao, hero's part of the rule I'm 9 when they are faced with the choice of having to deal with 10 talking about. It says unless the Court orders otherwise 10 It in the bankruptcy court they turn over the records that 11 and under subdivision C, which is protecting you against 11 we aro under confidentiality agroonent with to a 12 oppressive, et cetera, et cetera. Tho frequency and use of 12 third -party without that confidentiality. 13 those is not limited. I always understood you could take 13 THE COURT: Sot your fifteen minute motion and 14 deposition as long as you are not abusing eha system or 14 I'll listen co that. But, otherwise, I want the other 15 otherwise subject to protective order because you're 15 thing sot, as well. Cat some time ao we can go through 16 harassing, whatever the rules says hero. I can goat you the 16 this stuff, okay. 17 exact words. 17 HR. SCAROLA: And that is not, that is not 18 HR. ACKERMAN: But chore is the case law that the 18 delaying the thirty day period that they have to file t 19 Court is aware of where if the party has already been 19 now complaint, is that correct, Your Honor? 20 deposed they have to moo -- a party seeking to radoposo 20 THE COURT: No. 21 him has to show the basis. Bow, he's -- 21 HR. ACKEFUlAN: I'm just asking it be done before 22 THE COURT: You got a case chat says that? 22 the thirty days so I have an opportunity to, if you agree 23 HR. ACKERMAN: I don't have it with ma, Your 23 with ma, to get those documents. 24 Honor. l'n relying on my memory. 24 THE COURT: You will prepare cho orders on 25 THE COURT: I think that's an overstatement of 25 motion to disniss, on the motion for punitive damages, Page 155 Page It 1 what those cases say. I think they say you can protect 1 on the issue about the pro-trial gag order. 2 somebody against burdensome, harassment, oppressive, 2 HR. ACKERMAN: Yes. 3 capacitive discovery. I don't moo it says that you can': 3 THE COURT: I'll do the rest of these. 4 take more than ono deposition. You can cake five HR. KNIGHT: Enjoy your vacation. Sohn, depositions if you're not going over cho line. But, you 5 you need it. 6 know, certainly, 14 you want to give no a case that says 6 THE COURT: Well, yeah. Thank you. 7 that. Okay. Guys, that's going to have to be it becaus4. 7 ;Court adjourned 4:45 p.n.) 8 I, unfortunately, have to do a couple of orders back thin. 8 that I got chat man working on. I'll got those cedars out 9 10 by tomorrow for you. And than what I want you to do is 10 11 contact my JA and I would hope, what I would like to do, 11 12 and I know you all don't want to do lc this way 12 13 necessarily. I want to goat a complaint out there that 13 14 withstands cho notion to dismiss before we go into all 14 15 those privilege things. I just want co be able to know 15 16 what the hock we're talking about and what the lawsuit is 16 17 about. Because soma of the things you've alleged in my 17 18 view in the complaint at present may not fall within the 18 19 area of abuse of process unless can you show mo otherwise. 19 20 HR. ACKERMAN: What I would like to do, Your 20 21 Honor, because I know the time is late, I would like before 21 22 our complaint is due, to have a fifteen minute hearing, I 22 23 don't think it will take longer that than, where I can put 23 24 to the Court ono area whore I believe cho privilege issue 24 25 has boon valved, and, that is, those documents that we aro 25 ORANGE REPORTING 800.275.7991 EFTA01070252 Page 158 1 CERTIFICATE 2 3 I, Kathleen M. Ames, RPR, Notary Public, State of 4 Florida, was authorised to and did stenographically report 5 the foregoing proceedings; and that the transcript, pages 3 6 through 157, is a true and accurate record of my 7 stenographic notes. 8 I further certify that I an not a relative, or 9 employee, or attorney, or counsel of any of the parties' 10 attorney or counsel connected ulth the action, nor am I 11 financially interested in this action. 12 13 Dated this 15th day of July, 2011. 19 15 16 17 18 19 KATHLEEN N. AMES, RPR 20 21 22 23 20 25 ORANGE REPORTING 800.275.7991 EFTA01070253