IN THE CIRCUIT COURT OF THE

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 50-2009-CA-040800-AG JEFFREY EPSTEIN, Plaintiff, VS. SCOTT ROTHSTEIN, et al., Defendants. TRANSCRIPT OF HEARING Volume 1 of 1 Pages 1 - 33 DATE: Monday, April 22, 2013 TIME: 9:30 o'clock, a.m. PLACE: Palm Beach County Courthouse 205 North Dixie Highway West Palm Beach, Florida 33401 BEFORE: Honorable David F. Crow, Circuit Court Judge This cause came on to be heard at the time and place aforesaid. The following proceedings were reported by: Roger Watford, RPR/FPR U.S. Legal Support, Inc. 444 West Railroad Avenue Suite 300 West Palm Beach, Florida 33401 (561) 835-0220 WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103222 1 2 3 4 5 6 7 8 9 10 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: FOR THE PLAINTIFF/COUNTER-DEFENDANT: LAW OFFICES OF TONJA HADDAD COLEMAN, P A. 315 Southeast 7th Street Suite 301 Fort Lauderdale, Florida 33301 BY: TONJA HADDAD COLEMAN, ESQ. -and- ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue Suite 1400 West Palm Beach, Florida 33401 [email protected] BY: JACK GOLDBERGER, ESQ. FOR THE DEFENDANT/COUNTER-PLAINTIFF: SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 BY: JACK SCAROLA, ESQ. WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103223 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The above-styled cause came on for hearing before the Honorable David F. Crow, Circuit Court Judge, at the Palm Beach County Courthouse, 205 North Dixie Highway, West Palm Beach, Florida, on April 22, 2013, commencing at 9:30 o'clock, a.m., as follows: THE COURT: Okay, we are here on Epsteil versus Rothstein and Edwards. We are dealing with the objections to the production and a discovery of financial information. I have read both parties submittals. I have read a number of these cases so I am ready to hear argument. I not sure which motion is first. There was objections and your motion. MR. SCAROLA: May I approach, Your Honor? THE COURT: I think you are the one seeking discovery. MR. SCAROLA: I am the one seeking discovery, although it will be our position, as evidenced by the cases that we have submitted, that the burden of establishing the propriety of these privileges rests upon the party asserting the privilege. I have prepared for Your Honor what I WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103224 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hope will be of some assistance in getting through this matter, and it is an outline of the procedural history of our efforts to obtain financial discovery, which began almost exactly to the day four months ago on December 21, 2012. That's when we served the request for production and the interrogatories that are the focus of the motion to overrule all claims of privilege other than claims of Fifth Amendment privilege and to impose sanctions. We also served I believe at that same time our request for admissions that are the subject of our motion pursuant to Rule 1.370 to deem the request for admissions admitted for failure to file proper responses. Those are basically the two matters before the Court. There are competing memoranda, but the motions giving rise to the issues are those two motions. As the outline indicates, in response to the discovery requests that were filed on the 21st we received a motion for protective order. The motion for protective order asserted that the discovery requests were harassing, oppressive and embarrassing. There was no assertion of any privilege with regard WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103225 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to any of the requests that had been made in that timely response to the discovery that had been posed. On January 29, following a hearing, Your Honor entered an order denying Epstein's motion for protective order, but that order did not specifically identify a time period for response. The order did say that a response was to be made and that the production made pursuant to the response was to be subject to confidentiality. I have copies of these pleadings if Your Honor needs to see any of the motions or the orders. THE COURT: No, I don't need to see them. MR. SCAROLA: All right. On February 4, 2013 Your Honor entered an order compelling responses within 20 days because the prior order did not specify a time. We came back before the Court, I asked you to specify a time, you specified a time of 20 days. On February 22nd, 2013 we received unverified objections and then on February 25th a verification was filed and we filed a motion to strike untimely objections. On March 4, 2013 a response to that WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103226 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion to strike was filed and our position was that objections served more than 30 days beyond the deadline under the rules were untimely and ought to be stricken and there was a motion, as I said, a motion for protective order that was filed based upon the fact that the interrogatories, the discovery requests in general, were harassing, oppressive and embarrassing, and Your Honor denied the motion for protective order by order of March 11, 2013. That order struck all objections other than privilege and required a privilege log, except as to the Fifth Amendment privilege assertions, within 15 days. On March 20, 2013 we filed a notice of hearing for today's half hour hearing to deal with any privilege assertions that were made. On the 21st Mr. Epstein's counsel filed a motion for clarification arguing that all of the issues with regard to discovery had been resolved and our filing the notice of hearing was sanctionable. On the 26th of March Epstein's counsel filed what was labeled as a privilege log. I assume by now Your Honor has WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103227 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had an opportunity to review that in some detail, what is called a privilege log, it's far from a privilege log. What it is is repetition of objections to having to file a privilege log and argument as to why no log should be filed. So our position is that Mr. Epstein again has ignored this Court's order, the intent of the order, to require that a basis be established for the privileges that were being asserted and that on that basis alone all of these objections, other than the Fifth Amendment privilege objections, can be overruled. However, we are prepared today to deal with those objections on their merits. We have submitted a memo in detail dealing with each of those objections, identifying each of the discovery requests by number as to which we believe the objections cannot possibly be supported, but again, with regard to all privilege assertions, the burden falls upon the other side. We filed our motion to overrule all claims of privilege other than the Fifth Amendment privilege and we filed our Rule WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103228 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1.370 motion to deem the request for admissions admitted. That motion, the 1.370 motion, addresses only requests for admissions 12 and 13. Those requests are requests that ask that Mr. Epstein admit that he has not- paid a single penny in punitive damages and a request that he admit that he has not spent single day in a state or federal prison facility. It is impossible to imagine how al acknowledgment of those matters that are clearly matters of record could ever be a link in the chain of incrimination or be covered by any of the other privileges that have been asserted. The responses that were made were clearly evasive and improper under the rules. So that's our initial presentation. It's our belief that the burden shifts to the other side. I will sit down and shut up and wait to hear what they have to say. THE COURT: Before you do that, I want you to list the relief you specifically want. You made it clear on the 1.370 that they were deemed admitted? MR. SCAROLA: Yes, sir. THE COURT: And you want me to overrule WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103229 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all objections other than self-incrimination or Fifth Amendment privilege? MR. SCAROLA: Yes, sir. THE COURT: And that to do that without any in camera inspection at all? MR. SCAROLA: No, sir. What our position is, is that from a procedural standpoint Your Honor could at this point, because of the failure to timely assert objections, Your Honor could overrule those objections and not- be obliged to engage in an in camera inspection. Your Honor can also, on the basis that substantively there has been no support for those objections, overrule the objections. So that's alternative number 2. Alternative number 3 is, because of a failure to file a privilege log, you could overrule the objections. And the fourth alternative is you could order a privilege log and/or even without a privilege log an in camera inspection. Your Honor expressed concern at an earlier hearing about the ability to be able to conduct an in camera inspection in light of WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Fifth Amendment privilege assertion. The case law is clear, and I haven't heard anything from the other side to rebut that , that this Court has the ability to be an arbiter of the validity of the assertion of privilege, even Fifth Amendment privileges, and you are not precluded from requiring, on an in camera basis, a showing be made both with regard to testimonial assertions and documentary assertions as to why what is asked for has a causal link or a potential causal link to the criminal jeopardy that we acknowledge Mr. Epstein still faces. There are matters out there. He faces potential criminal liability. We are not trying to overrule the Fifth Amendment privilege. But I want to overrule all the other privileges, I want them eliminated, so that when we are before a jury the single privilege that has been asserted is a Fifth Amendment privilege, and, as I have explained to the Court before, it's our position that that will enable us to draw adverse inferences from those assertions and argue those adverse inferences before the jury. WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103231 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Let me ask you another question about the procedure. And I know certainly the procedure in all of the privileges of self-incrimination. There seems to be some indication in the case law that some type of hearing or some kind of evidentiary proffer in camera should be conducted; is that right? MR. SCAROLA: Yes, sir. That's been my experience in the past, that the Court, with a court reporter, in camera gives the party asserting the privilege the opportunity to explain why the discovery sought, whether testimonial or documentary, why the discovery sought could provide a link in the chain of incrimination with regard to a genuine issue of potential criminal liability. THE COURT: And are you saying this is an ex parte hearing? MR. SCAROLA: It is ex parte, yes, sir. I am not there. THE COURT: I just want to know what your position is. MR. SCAROLA: That's our position. Our position is that it's an ex parte proceeding WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103232 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and the purpose of the proceeding, obviously, is to not allow the party asserting the privilege to be the final arbiter of whether there is a reasonable basis for asserting the privilege. The Court has the ability and the responsibility to conduct that hearing to determine whether, in fact, there really is a potential link in the chain of incrimination. THE COURT: Okay. MR. SCAROLA: Thank you very much, Your Honor. THE COURT: Counsel. MS. COLEMAN: Good morning, Judge. I am going to speak to all of the other issues with the exception of the Fifth Amendment. I am going to allow Mr. Goldberger to speak to that, since he was Mr. Epstein's criminal defense attorney and is far better equipped than I to deal with that. I would like to go in reverse order from which Mr. Scarola spoke. With respect to their motion to strike or have deemed admitted the request for admissions numbers 12 and 13, first, with respect to admission number 12 in which Mr. Edwards asked that Mr. Epstein admit WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103233 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that he has never paid a certain amount of money in damages, Mr. Epstein asserted his Fifth Amendment privilege against self- incrimination because this involves financial issues which could have possibly stemmed from allegations of criminal misconduct and, therefore, he is asserting his Fifth Amendment privilege. It was spelled out very clearly, it was properly pled, the proper cases were cited, so we are in a position, of course, that the Court cannot deem that one admitted because Mr. Epstein asserted his Fifth Amendment privilege. THE COURT: Let me ask you, a lot of this is new to me, so there's no way to test a Fifth Amendment protection in a civil context , there's no way to test the validity of the Fifth Amendment, by in camera or otherwise, protection request under a request for admissions or not? MS. COLEMAN: My research indicates not under any discovery, Judge. In fact, I have giant pile of cases here for you I would be happy to bring up now or afterwards, but if a WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103234 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 witness testifies in writing or orally at any stage in the proceeding he loses the privilege. The privilege is waived. That's the United States Supreme Court case, Minnesota vessels Murphy. THE COURT: I just want to know what your position is so I am clear. Your position would be that, forget about what the questions are, but he could raise in response to a request for admissions a Fifth Amendment privilege and that ends the discussion? MS. COLEMAN: Yes, sir. And ironically there were 13 admissions served. The Fifth Amendment was asserted for numbers 1 through 12. He answered number 13. So the Fifth Amendment was asserted for the first 12 but Mr. Scarola is only objecting to number 12. don't know why. I can't presume to know why. MR. SCAROLA: The motion addresses 12 and 13, Your Honor, expressly 12 and 13. MS. COLEMAN: If I may finish, we didn't assert the Fifth Amendment with respect to number 13. But the Fifth Amendment was addressed and asserted with respect to number 12. With respect to request for admission WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103235 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number 13, as drafted, and the Court can look at it, it's asking Mr. Epstein to admit that, the way it's written it's a double negative grammatically, not understandable, and the way it was responded to, Mr. Epstein admitted it. He admitted that he served, he pled to certain charges for which he was sentenced to Palm Beach County Jail, and he served the time for the charges for which he pled. I don't know how it could be any more clear. He admits he went to jail, he admits he pled to the charges. Quite frankly, it's a matter of public record. So if he didn't answer it in the appropriate manner I am sure there are other sanctions Mr. Scarola could come up with at trial, but the point is we couldn't merely admit or deny as it was drafted. As such, we reformulated the sentence to admit basically what he was asking but to put it in the proper format so it was very clear as to that portior to which Mr. Epstein was admitting. And I would like to go back with respect , because you were given again another handwritten delineation of what's occurred, WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103236 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when we filed the initial motion for protective order the only grounds alleged, and legally the only grounds required to be alleged under the Rules of Civil Procedure, are grounds of harassment, oppressive or embarrassing, and that is exactly what we raised in our protective order. Once you deny the protective order, the law is clear that we are permitted to assert any privileges or any objections that were not raised in the protective order. Mr. Scarola has not provided this Court with one case to the contrary. I am citing to you the plain language of the rules. You have already ruled on it, I realize we're not her( on a motion for rehearing, but it's very important, because Mr. Scarola has repeatedly accused us of not filing timely our objections and our assertions of privilege, and that's simply not true. Pursuant to this Court's own order, the deadline for us to file responses, whatever they may be, to the interrogatories and requests to produce was February 25th. We filed unverified on the 22nd and verified on WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103237 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the 25th. Therefore, we were well in compliance with this Court's order and with the applicable law. Second, Judge, with respect to the request for sanctions for failure to comply with your March 11th order, your order clearly states that we shall provide a detailed privilege log for every request to which we did not assert the constitutional privilege. The issue with which we were faced, and perhaps it would have been better if we had a longer hearing before the order was issued retrospect, was that the Fifth Amendment privilege was asserted to every other objection or privilege that was asserted to another question. And let me be clear because I don't know that that made sense. THE COURT: It made sense. MS. COLEMAN: Okay. Additionally, Judge, that put us in compliance with your order because you stated to file a privilege log with everything else. By adding in the case law applicable to content specific, the document specific privileges, we were not WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103238 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 trying to relitigate the issue but rather to educate the Court and Mr. Scarola regarding the content specific privilege versus the document for document privilege, because the law is very clear, and again I have the law here for you, any attempt to provide that privilege log -- THE COURT: Do you have something other than what you cited in your memo? MS. COLEMAN: Yes, we have additional cases. MR. SCAROLA: Which I have not seen, and I request that they be provided, Your Honor. THE COURT: Have you provided them to counsel? MS. COLEMAN: Judge, they were cited in our response, but I will -- THE COURT: I thought you said they weren't cited. MS. COLEMAN: The most recent ones we filed, yes, they were. THE COURT: Okay. So all this was in your memo? MS. COLEMAN: Yes, Judge. And I would point the Court again to Hoffman versus United WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103239 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 States, 341 U.S., 479: "The Court is forbidden from requiring an invoker of the Fifth Amendment to tell the Court what the response would be even if in camera revelation of the response could surrender the protection." Because of that research, Judge, we were faced with a very unique situation, the Court- admittedly had never seen it, I have never seen it, in which we weren't sure how to provide a privilege log without eviscerating the Fifth Amendment privilege, and the case law seems clear to me that we can't, but it don't necessarily mean that our privileges must be stricken. And, because Mr. Scarola offered four alternatives, we want to point out to you; number one, our objections were not untimely; number two, we complied with the Court's order to the best of our legal ability; number 3, we didn't assert any privileges that were in the objections that were asserted in the initial request for protective order, and, as such, didn't violate the Court's previous ruling; and finally, Judge, with respect to the WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103240 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 argument that the category privilege log was not sufficient, we would again rely on the cases that we previously cited in our category specific privilege log memorandum. And Mr. Goldberger is going to come up and explain more about the Fifth Amendment and talk about the cases on which Mr. Scarola relied in his responses. But after that, if Mr. Scarola does speak to any of the issues which I have already discussed with you, I would like to be afforded the opportunity to respond. THE COURT: So Mr. Goldberger is going to deal with the in camera inspection, under what circumstances I can or cannot look at the documents? MS. COLEMAN: He is, Judge. I am also prepared, by way of example, just to give you a hypothetical example of one of the issues, because the other problem with which we are faced, and this is something I want you to 'b. aware of before you rule, the discovery requests for net worth that were served upon Mr. Epstein are the form post-judgment civil procedure rule interrogatories request for WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103241 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 production that are applicable in a post- judgment context. They all ask for documents within the past five years, accounts upon which someone is a signatory, accounts upon which you have withdrawal authority, et cetera. It's a very important distinction. This is a net worth discovery, not a post-judgment discovery, and furthermore, this discovery is not germane to Mr. Edwards proving anything he's alleged in his case in chief; rather, this goes to punitive damages, so as an alternative we would offer to the Court, should the damages issues be bifurcated from the actual allegations, this is something that we could at least table or stay until another point in time, because Mr. Epstein did, contrary to Mr. Scarola's assertion -- THE COURT: Nobody has moved to bifurcate, have they? MS. COLEMAN: Not yet, Judge. I am just- trying to get this discovery issue organized. We have some motions for discovery we intend to file against Mr. Edwards as well. I'm just_ trying to do one thing at a time. WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103242 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, aside from all of the privilege issues here which complicate this case, the discovery with regard to net worth is very broad. Forget about the situation ir our case. A negligence case, a drunk driver, something like that, it's pretty broad. What- comes into evidence may be different, but the discovery is pretty broad in punitive damages. MS. COLEMAN: I understand that. But again the problem with which we're faced here, and I can't really explain it too much due to the Fifth Amendment issues, is my client is a financier, he is in the financial industry, so some of these requests don't differentiate as to his personal business, et cetera. It's almost impossible to try to answer when it's such a broad request. THE COURT: Well, after I read your materials, I do understand your position. I've made it very clear. I do understand it. I just don't know the -- but let Mr. Goldberger tell me how I should deal with it or at least his position on how I should deal with it. MR. GOLDBERGER: Thank you, Your Honor, WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103243 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for allowing us to split this issue and having two lawyers. Procedurally, the cases cited by Mr. Scarola are simply just not applicable to the situation before Your Honor. All those cases deal with unique issues, two in criminal cases and one in a civil case, where the Court is asked to determine whether there's a Fifth Amendment privilege that actually exists. In the case before Your Honor Mr. Edwards has conceded the existence of a valid Fifth Amendment privilege. They have not raised objections to our invoking our Fifth Amendment privileges. In fact, every time Mr. Scarola addresses this he says "except for the Fifth Amendment privilege." THE COURT: I understand. Let me ask you this question. In this particular case what I am having trouble wrapping my head around is, there are multiple objections to this discovery request independent of the Fifth Amendment. How do I deal with the attorney/client? I mean, it looks like on the face of it some of these privileges, you know, the third WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103244 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 party privilege, some of these on trade secrets, I don't know how some of these privileges could be applicable to some of the requests, although I may be educated, but how would I deal with determining, as Mr. Scarol<-. says he is entitled to know, that, yeah, the Fifth Amendment is over here but, you know, these things are not Fifth Amendment? MR. GOLDBERGER: I wish I had an answer. It's a really difficult issue. My concern is, I represent an individual on past criminal charges and potential future criminal charges, and certainly Mr. Scarola's client is trying to overturn a resolution of the case, so it's not just some abstract concern about Fifth Amendment issues, it's a real issue. If, in fact, we are ordered to disclose in camera to the Court the basis for our Fifth Amendment privileges, I am very concerned that we would have indeed waived our Fifth Amendment privilege. And I understand the Court's dilemma in trying to deal with the other privileges that are raised, but my client's constitutional rights must rise above, you know, the civil procedure rights. WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103245 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, how do we proceed, put him on the stand at trial and say, "Isn't it true that your net worth is over 20 billion dollars," and have him take the Fifth Amendment? MR. GOLDBERGER: If there's an adverse inference that flies from that, so be it, I don't know if there is or not, but then Mr. Scarola is left with that. But, you know, the three cases cited by counsel, and that's the point I want to make, they are unique circumstances where the Court had to determine whether it was a Fifth Amendment privilege. One is where the guy was given immunity and he was still invoking Fifth Amendment privileges, another is a penalty phase case, and the third is a request for admissions, whether that provides a less clear link to involve Fifth Amendment privileges. Those are all unique factual situations that are not here because counsel has conceded the applicability of the Fifth Amendment privilege. So I've made my presentation, but I am afraid I can't answer the Court's threshold WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103246 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question of how do you deal with it. I'm just here to protect my client's Fifth Amendment privileges. THE COURT: Okay, thank you. Mr. Scarola, briefly. MR. SCAROLA: Yes, sir. I want to make it very clear that we are not conceding the validity of any Fifth Amendment privilege assertion. We are telling the Court that it is not our intention to challenge Fifth Amendment privilege assertions except to the extent that it is necessary for Your Honor to make a determination as to whether any other privilege applies. To that extent we are challenging the assertion of the Fifth Amendment privilege as a bar to Your Honor making a determination with regard to the validity of other privilege assertions. And the case law is very clear that Your Honor is entitled to conduct an in camera determination in order to do that if you find that procedurally the raising of these privilege assertions requires more than the opportunities Your Honor has already given the WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103247 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 other side. So the statement that we concede the validity of the Fifth Amendment privilege is not accurate. We are willing to accept the alternative remedy available to us, and that is to draw adverse inferences from the assertion of the Fifth Amendment privilege:. Now, I am not sure, from what Mr. Goldberger told the Court, whether he is making a concession. If he is conceding that, without resolving any of the other privilege issues, we are permitted to call Mr. Epstein to the witness stand, have him assert his Fifth Amendment privilege and to draw adverse inferences from that, in spite of the assertion of other privileges, that solves the problem for us. I don't think that is what he is telling us, but if it is, that is fine, I don't have a problem. They can assert every privilege in the world as long as I get to draw an adverse inference. So that's response number 1. I want to deal with the argument that was made with regard to the 1.370 motion concerning requests for admissions number 12 WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103248 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and 13. Does Your Honor have those requests for admissions? THE COURT: I'm not sure. I will look here. MR. SCAROLA: Let me hand this to you. will start with request number 13, which is alleged to be a double negative. Now, I don't know how it can be asserted that that request somehow includes a double negative and is unclear: "Admit that you have never spent even one day in a state or federal prison facility as opposed to a county jail as punishment for any sex related crime." Now, that request is clear and unambiguous and is not a double negative. The response that we got is clearly evasive. That response is in the pleading that is just ahead of the one that -- just ahead of the request for admissions. The response is: "I admit that I was sentenced by a state court judge to the Palm Beach County Jail for charges to which I pled." That doesn't respond to whether he spent a single day in a state or federal prison for his crimes. That is clearly evasive. Rule WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103249 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1.370 deals directly with evasive responses and says if the response is evasive the request can be deemed admitted. We ask that this request be deemed admitted. Number 12: "Admit that you have never paid even one penny in punitive damages to any person who has alleged that you engaged in improper sexual conduct with them while that person was a minor." Now, Your Honor is well aware of the fact that the payment of other punitive damages arising out of the same misconduct can be used as mitigation against a punitive damage claim. We are entitled to know whether Mr. Epstein paid any other punitive damages to anyone arising out of -- THE COURT: Wait a minute. The punitive damage claim in this case deals with the claims against your client, not claims against third parties out there for which, you know, other people bringing sexual harassment charges or conduct charges, but this is not similar conduct. MR. SCAROLA: The allegation in this case is that the motive behind the charges brought WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103250 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 by Mr. Epstein against Mr. Edwards was to avoid any civil liability, including any punitive damage liability, arising out of his earlier sexual misconduct. It is reasonably calculated to lead to admissible evidence with regard to that motive to be able to talk to the jury about the extent to which he has or has not been subject to punitive damages in those prior claims beyond which no objection was ever raised to relevancy or materiality. The objection is Fifth Amendment privilege. That is the objection. That's the objection that Your Honor is dealing with. And that objection ought to be overruled There is no showing with regard to that objection. So the procedure that we have outlined, I suggest to Your Honor, the procedural alternatives are the procedural alternatives that exist, and at the very least we are entitled to have Your Honor conduct an in camera inspection or assessment by way of interview to determine whether any of these Fifth Amendment privileges stand as a bar to WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103251 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor making a determination with regard to the validity of all the other privilege claims which on their face in many circumstances appear absolutely absurd. Thank you, sir. THE COURT: Okay, I am going to have to look at this a little closer and get some help on it I think. I have never seen anything like this before, so I will have to -- MR. SCAROLA: I am happy to present you with some unique legal challenges. THE COURT: One of the good things about this job is that a day doesn't go by where I'm not presented with something I have never seen before. I just want to make sure I have all the authorities of both sides, the memoranda or the responses. MS. COLEMAN: Judge, I have copies of the U.S. Supreme Court cases. THE COURT: Are they cited in your memorandum? MS. COLEMAN: They are, but I have copies for everybody. THE COURT: Yes, I will take copies. WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103252 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. COLEMAN: I have copies for Mr. Scarola as well. MR. SCAROLA: Thank you. But I don't need them. MS. COLEMAN: And the other -- MR. SCAROLA: As long as they are cited, I don't need them. THE COURT: Counsel, I have another hearing. Just take them back there and complete them and give them to the deputy before you leave, okay? MS. COLEMAN: Yes. MR. GOLDBERGER: Thank you, Your Honor. (Hearing concluded at 10:05 o'clock, a.m.) WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103253 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF REPORTER I, Roger Watford, Florida Professional Reporter, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true and complete record of my stenographic notes. I further certify that I am not a relative, employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorneys or counsel connected with the action, nor am I financially interested in the action. Dated this 4th day of April, 2013. 47'7 74.416// Roger Watford, PR/RPR WWW.USLEGALSUPPORT.COM 561-835-0220 EFTA01103254 Page 1 A ability 9:24 10:4 12:5 19:20 able 9:24 30:7 above-styled 3:1 absolutely 31:4 abstract 24:15 absurd 31:4 accept 27:4 accounts 21:4,5 accurate 27:4 accused 16:18 acknowledge 10:13 acknowledgment 8:10 action 33:14,15 actual 21:14 adding 17:23 additional 18:10 Additionally 17:20 addressed 14:24 addresses 8:3 14:19 23:15 admissible 30:6 admission 12:24 14:25 admissions 4:12,14 8:2 8:3 12:23 13:21 14:10 14:13 25:17 27:25 28:2,19 admit 8:5,7 12:25 15:2 15:18,19 28:10,19 29:5 admits 15:11,11 admitted 4:14 8:2,23 12:22 13:12 15:5,6 29:3,4 admittedly 19:9 admitting 15:22 adverse 10:23,24 25:6 27:6,14,21 afforded 20:11 aforesaid 1:20 afraid 25:25 ago 4:5 ahead 28:17,18 al 1:8 allegation 29:24 allegations 13:6 21:15 alleged 16:2,4 21:10 28:7 29:7 allow 12:2,16 allowing 23:1 alternative 9:16,16,19 21:12 27:5 alternatives 19:17 30:20,20 Amendment 4:10 6:14 7:13,25 9:2 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24:24 content 17:24 18:3 context 13:17 21:2 contrary 16:13 21:17 copies 5:12 31:19,23,25 32:1 counsel 6:19,24 12:12 18:15 25:10,21 32:8 33:11,14 county 1:2,16 3:3 15:8 28:12,21 course 13:11 court 1:1,18 3:3,7,17 4:16 5:14,19 8:20,25 9:4 10:4,22 11:1,10 11:11,18,22 12:5,9,12 13:12,15 14:4,6 15:1 16:12 17:19 18:2,8,14 18:18,22,25 19:2,4,8 20:13 21:13,19 22:1 22:18 23:7,17 24:18 25:1,12 26:4,10 27:9 28:3,20 29:17 31:6,12 31:20,21,25 32:8 Courthouse 1:16 3:4 Court's 7:8 16:21 17:2 19:19,24 24:22 25:25 covered 8:12 crime 28:13 crimes 28:25 criminal 10:12,15 11:17 12:17 13:6 23:6 24:11,12 Crow 1:17 3:2 D damage 29:13,18 30:3 damages 8:6 13:2 21:12 21:13 22:8 29:6,11,15 30:9 DATE 1:15 Dated 33:17 David 1:17 3:2 day 4:5 8:8 28:11,24 31:13 33:17 days 5:17,20 6:2,15 deadline 6:3 16:22 dea16:17 7:15 12:19 20:14 22:22,23 23:6 23:22 24:5,22 26:1 27:23 dealing 3:8 7:16 30:14 deals 29:1,18 December 4:5 deem 4:13 8:1 13:12 deemed 8:23 12:22 29:3 29:4 Defendants 1:9 DEFENDANT/COU... 2:12 defense 12:18 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