IN THE CIRCUIT COURT OF THE

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff(s), vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and ■I., individually, Defendant(s). MOTION TO DETERMINE ENTITLEMENT TO ADVERSE INFERENCE AND PRECLUDING EPSTEIN FROM OFFERING EVIDENCE AT TRIAL Bradley Edwards, by and through his undersigned attorneys, moves this Honorable Court to determine his entitlement to an instruction to the jury before whom this matter shall be tried, that the jury is entitled to conclude solely on the basis of Epstein's refusal to answer that had Jeffrey Epstein responded truthfully to any relevant discovery request as to which he has refused to answer or respond based upon an assertion of his Fifth Amendment privilege, that all such answers and responses would, in fact, have implicated him in the commission of a crime or would otherwise have disclosed information adverse to Jeffrey Epstein's interests in this lawsuit. Bradley Edwards further moves this Honorable Court to enter an Order precluding Jeffrey Epstein from offering evidence or testimony as to any matter about which he has declined on the basis of the assertion of privilege to provide we-trial discovery. EFTA01112588 Edwards adv. Epstein Case No.: 502009CA040800XXXXMEAG Motion to Determine Entitlement to Adverse Inference and Precluding Epstein From Offering Evidence at Trial In support of this motion, Bradley Edwards would show that the Court has the inherent power to avoid or minimize the unfairness to Edwards that is caused by Epstein's foreclosure of clearly relevant discovery inquiries. An order precluding Epstein from offering any proof in support of the matters as to which he has asserted privilege is an appropriate means to address such circumstances. See Securities and Exchange Comm'n. v. American Beryllium & Oil Corp., 303 F. Supp.912 (S.D.N.Y. 1969); Fed. R.Civ.P. 37 (b)(2)(B); Fla. R.Civ. P. 1.380(b)(2)(B). Indeed where proof of a contested issue is in the control of a defendant, the court has authority pursuant to Fla. R.Civ. P. 1.380(b)(2XA) to enter an order establishing the facts in accordance with the plaintiff's version of them. Unlike criminal proceedings, the defendant in a civil case can be compelled to take the stand and assert the privilege in response to questioning before the fact finder. The plaintiff is then entitled to an adverse inference in response to the unanswered questions and counsel is entitled to argue that adverse inference. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 47 L.Ed. 2d 810 (1976). 2 EFTA01112589 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Motion to Determine Entitlement to Adverse Inference and Precluding Epstein From Offering Evidence at Trial WHEREFORE, Bradley Edwards respectfully requests the entry of an Order establishing his right to the relief sought herein. I HEREBY CERTIFY that a true and coned copy of the foregoing was sent via E-Serve to all Counsel on the attached list, this li firly Jack S Flori No.: 169440 E-mail: ndary E-mail(s): Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phone: Fax: Attorneys for Bradley J. Edwards 3 EFTA01112590 Edwards adv. Epstein Case No.: 502009CA040800XXXXM BAG Motion to Determine Entitlement to Adverse Inference and Precluding Epstein From Offering Evidence at Trial COUNSEL LIST Jack A. Goldber r, • uire Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach. FL 33401 Phon Fax: Attorneys for Jeffrey Epstein Bradle J. Et.award , Es uire Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, FL 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Fax Fred Haddad, Es uire • Fred Haddad, P.A. One Financial Plaza, Suite 2612 Fort Lauderdale, FL 33394 Phon Fax: Attorneys for Jeffrey Epstein Marc S. Nurik, Es uire Law Offices of Marc S. Nurik One E Broward Blvd., Suite 700 Fort Lauderdale, FL 33301 Phone= Fax: Attorneys for Scott Rothstein Tonja Haddad Coleman, Esquire Tonja Haddad, P.A. 315 SE 7th Street, Suite 301 Fort Lauderdale, FL 33301 Phon Fax: Attorneys for Jeffrey Epstein EFTA01112591