IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

Case: 50 2009 CA 040800XXXXMAG

JEFFREY EPSTEIN,

Plaintiff,

VS.

.rC .1HT RTFillaajjavidually, I and J. individually,

Defendants,

FILED

JAN 2 8 2011

SHARON R. B CLERK & COMP' C ) CIRCUIT CIVIL r141,:S'•

0

#### MOTION FOR A STAY OF SUBPOENA PENDING RULING ON PREVIOUSLY-FILED MOTION FOR SUMMARY JUDGMENT, FOR A PROTECTIVE ORDER, AND FOR SCHEDULING QRDER ON CREATING A PRIVILEGE LOG

Defendant, J. , Esq., pursuant to Rule 1.280(c), Florida Rules of Civil Procedure, hereby moves for protection from an abusive subpoena issued by plaintiff Jeffrey Epstein through this Court and ierliecImehim and on bankruptcy trustee Herb Stettin.

Epstein has served aL na on bp6c and Stettin that will require to review more than 70,0 ges of materials to identify responsive documents and to assert appropriate pr1vi15ges. Moreover, Epstein has contrived to have issues regarding this Court's subpoena d in the Bankruptcy Court for the Southern District of Florida through the haPPenStance that possession of the documents (records of a law firm) rests in the hands of Stettin. Epstein apparently contemplates that the bankruptcy court will make rulings on privilege issues that properly should be made by this Court.

Epstein's maneuvers threaten to burden both this Court and the bankruptcy court with making duplicative, potentially conflicting, and likely unnecessary rulings. Accordingly,

asks this Court to stay enforcement of its subpoenas for a brief period of time to permit this Court to first rule on the pending motion for summary judgment on all of Epstein's claims that have been filed by If any of Epstein's claims somehow survive the pending summary judgment motion, then this Court could rule on the proper scope of the subpoena and any privilege or other issues which remain to be litigated. proposes edule to rapidly bring these issues to resolution and urges the Court to adopt it. Edw requests a protective order, narrowing the scope of the production requests madel d requiring billionaire Epstein to pay all reasonable costs associated with reeponding to his discovery requests.

# BACKGROUND FACTS

As this court is well aware from a summary judgment motion filed by M, Plaintiff Jeffrey Epstein (a convicted sex offender) has sued legal counsel J. Esq., for conduct that occurred in the course of representation of multiple young female victims of Epstein's sexual abuse. d pursued civil lawsuits against Epstein to recover damages for Epstein's extc e pane of molestations. In retaliation and to try and intimidate and his youn ts, Epstein brought this lawsuit in this court alleging that had somehow fabricated and/or exaggerated the claims. has now filed a comprehensive motion for "summary judgment against Epstein, detailing how he is entitled to judgment on each I I, and,eyerkikte-nt Epstein's frivolous claims.

stein has yet to file any response to comprehensive summary judgment motion. Nonetheless, he continues to harass through discovery requests connected with this case. In particular, on April 12, 2010, Epstein propounded an extremely broad Request for

Production (RFP) to M. See Exhibit "A." Containing some 27 different requested items, the RFP seeks all sorts of electronically stored information, including a raft of internal emails between and other attorneys, paralegals, expert witnesses, investigators, and others who worked on the civil lawsuits against Epstein. On May 11, 2010, duly responded to the request for production. Through his legal counsel, noted that many ef,th4e requests Arc', sought attorney-client or work-product privileged information and others were qtly broad and unduly burdensome. See Exhibit "B."

While was raising his objections to the subpoena lodged against him, Epstein duplicated his requests by serving a separate subpoena for thelas information. On April 16, 2010, four days after making the requests to — out waiting for his responses to the requests, much less a court ruling on obj ctio — Epstein served a subpoena duces ra :>. 7 tecum for documents on bankruptcy court-appoint gustee, Herb Stettin.

<sup>C</sup> N A bit of background may beihiebful here. Mr. Stettin never represented any of the underage females who had been so ually bused by Epstein. Instead, Mr. Stettin has possession of certain records related to this case — and many more entirely unrelated to this case — because he was court-appointed-4s bankruptcy trustee for the now-defunct law firm of Rothstein / Rosenfeldt Adler (RBA)! had a brief connection to RRA. For a short period of time during his representation of his young clients, was employed by RRA. It was then revealed_thaltbe law firm president, Scott Rothstein, had been running a criminal Ponzi scheme out of the law firm. Shortly after learning of the fraud, left RRA. Later, RRA declared bankruptcy and the bankruptcy court appointed Herb Stettin trustee of the estate of RRA, charging him with handling financial claims regarding the assets of the firm. RRA's electronic

database, including all electronically stored files and emails, were left in the possession of Stettin. Because Stettin was not involved in the sexual abuse litigation against Epstein, he does not have detailed knowledge of the persons or subjects discussed in the various e-mails and other records.

On June 28, 2010, a hearing was set before this court on Epstein's Motion t mpel the Trustee to produce the documents responsive to Epstein's subpoena. On t ate, tettin's counsel, counsel, and counsel for Epstein all met in the hallwa e courtroom and worked out an agreed resolution to the dispute. All counsel agEleed that Stettin would turn over to counsel all documents responsive to the rpoe and Wat counsel would then prepare a privilege log and produce all doc tt" a are not subject to objection or privilege. At that point, Epstein could pursue any'the ments that he wanted in this Court \\ argu /---\_ regarding materials not produced. As a result of the agreement, the Court never held the hearing on the Motion to Compel. Epstein's co-tinsel agreed to draft a proposed consent order for all the parties.

()' Despite the agreement between the parties, Epstein's counsel never prepared that agreed order. Instead, Epstein decided to launch litigation in yet another forum — the United States 11/ Bankruptcy Collet for thekSouthem District of Florida. On July 14, 2010, Epstein filed a Motion \\, to Compeliwoduction of numerous documents from Trustee Stettin in the bankruptcy proceeding being ov by by the bankruptcy court (Judge Raymond Ray). See Jeffrey Epstein's Motion to Compel 'Production of Documents from Trustee Pursuant to Document Production Protocol Established by DE #672, In re: Rothstein Rosenfeldt Adler, Case No. 09-34791-BKC-RBR (DE 807) (attached as Exhibit "C"). In his motion, Epstein recounted that he had served a subpoena

on the trustee. See id. at 2. Epstein did not inform the bankruptcy court, however, that he was seeking the same information from and that had raised claims of privilege. Nor did Epstein mention that he bad previously filed a motion to compel before this Court. Instead, Epstein claimed to the bankruptcy court that "[p]roduction of these documents from the Trustee is critical to issues in the state court lawsuit. Without access to the emails ik question, Movant will suffer unfair prejudice and will be unable to obtain information critical to his ' lawsuit." Id. at 3. Epstein also stated that he was "willing to reimb'se the Estate for its reasonable expenses incurred in reviewing the documents for privileied matters and preparing a Privilege Log." Id. at 4.

In response, on July 19, 2010, filed to for Protective Order (DE 818) (Exhibit "D") and an amended Motion for Prot Or (DE 819) (Exhibit "E.") to restrict this production so that privileged or oth Qon toverable material was not produced. A hearing was held on that Motion and that appointed as Special materials responsive to the kubpoena from Stettin and to prepare a privilege log (DE 888) (Exhibit "F"). 3, 2010, the bankruptcy court entered an Order ward County Circuit Judge Robert Carney to take all

Special, Carney did take possession of the materials; however, after reviewing the materials he irninHediately realized that there were obvious problems if he (the Special prepared stplivilege log. Specifically, lacking familiarity with the sexual abuse litigation, the Special Master had no way to determine which materials were relevant and of those relevant materials, which were privileged. Moreover, the privileges were not the Special to assert or waive. Rather, the attorney-client privilege and other privileges were held by clients of

and himself. As a result of these problems, on September 20, 2010, Special Carney filed a Motion to Clarify Order Appointing Special (DE 1013). (Exhibit

On September 27, 2010, then filed another Motion for Protective Order (DE 1022) (attached as Exhibit "H"). In that motion, explained that "Eps asks this [Bankruptcy] Court to usurp the properly exercised jurisdiction of the Cl 19 ourf over a subpoena duces tecum issued by the state court in connection with an ac state court." Id. at 1. further noted that he had previously ding before the to this information being turned over in state court and that this was Epstein' to backdoor his way into obtaining information to which he is not entitled." Id. it tice )

On October 10, 2010, the bankruptcy cotirt entered an amended order modifying the production procedures and the role of the Special Master (DE 1068) (attached as Exhibit "I"). In this Amended Order Respecting Production of Documents Regarding Jeffrey Epstein, the bankruptcy court directed the Rusteelo produce all of the materials in question to law firm — =, Jaffe, Weissmg, Edyards, Fistos & Lehrman. = Jaffe was then directed to produce a privilege of all materials. The privilege log was to be provided to the Special . The Special was, in turn, to "schedule a hearing . .. where all parties in interest will have rtunity to provide written submissions respecting the privilege log and to make argutpc i a 1 issues relevant to the applicability of privilege as to the documents listed on the Yaffe privilege log. That hearing shall be transcribed by a court reporter." Id. at 3. Then, "\[fJollowing completion of the aforementioned hearing, the Special shall prepare a report making all appropriate findings and recommendations to the Court, which shall be served on all

parties in interest and filed with the Court, along with the transcript of the Special hearing. . . . If an objection to the report is filed by any party in interest, then this Court shall schedule and hold a hearing to resolve with finality the issues of privilege as consistent with the appropriate law and procedures set forth herein." Id.

Following the entry of this order, Trustee's counsel delivered several di containing more than 70,000 pages of materials to Jaffe. Some of these material e-mails from the RRA computers and other materials are electronically stored case f ning pleadings, discovery, correspondence between counsel and other case related ate Ws. While some of these materials are connected with the Epstein litigation, malty o them arc not. Most of the materials do not appear to be responsive to the Epsteirt.sufipcen originally served.

On November 2, 2010, filed a motion in bankruptcy court requesting relief from the Amended Order. See Motion for Relief from Amended Order [DE1068] and to Compel Jeffrey Epstein to Pay for the Production of all Documents in Response to His Request (DE 1120) (Attached as Exhibit "J"). It was then also discovered that the disks provided to were not identical to those pilovided to Special Carney and a meeting was set up between Special Carneyyl to compare the disks and get the correct disks in hands to begide-view of the materials. As a result, on November 10, 2010, Special Camey met witia. The disk problem was sorted out, and was then provided the same tbrials that Special Carney had, from which was ordered pursuant to DE 1068 to begin preparing a privilege log.

During the meeting with Special Carney, it became apparent that the result of creation of a privilege log and his anticipated objections to the production of

irrelevant and privileged materials was on a path for a hearing ultimately before the bankruptcy court ruling on the scope of this Court's subpoena and possible restrictions from it.

### DISCUSSION

### THIS COURT, RATHER THAN THE BANKRUPTCY COURT, IS THE PROPER FORUM FOR LITIGATING THE SCOPE OF SUBPOENAS SERVED IN THIS CASE.

As is apparent from the foregoing recitation of the facts, Epstein has mentless retaliatory lawsuit against into a different court - the bankru ° - and then sought to have rulings on the application of privileges in this Court' cas lcpd e by that court. This backdoor approach is not proper, as the issues surround before this Court for several reasons. rt's subpoenas belong

First and foremost, Epstein is now deploying his retaliatory lawsuit to burden and other lawyers at his firm with requests to review tens of thousands of pages of documents for privilege claims and other discovery issues. Because the Trustee has produced what amounts to every single piece of paper that eyen retrtotely relates to an Epstein case rather than just those documents responsive to the'suu, is now forced to review more than 70,000 documents to create a privileg>lag1.

While it ypight !(e appropriate to force the attorneys to review some portion of those documents ( i Ls vi e lawsuit were at hand, Epstein's lawsuit is entirely meritless. As explained at len trill= pending motion for summary judgment, Epstein's case should be ., sununanly rejected for three separate reasons: First, under the well-established "sword and shield" doctrine, Epstein cannot assert a Fifth Amendment privilege to deny access to relevant discovery about his lawsuit while simultaneous trying to force to pay damages. Second, because Epstein has repeatedly taken the Fifth when asked numerous relevant questions

about his lawsuit, no reasonable jury could find in his favor. And third and most fundamentally, Epstein's lawsuit completely lacks any factual basis whatsoever and does not even make an attempt at alleging a viable damage theory.

If the Court were to agree with and grant his summary judgment motion on any of these three separate grounds, then it seems likely that the entire discovery disput unding Epstein's subpoenas to and the trustee would be considerably narrow perhaps even eliminated entirely.' It makes no sense that extensive satellite liti -going in the bankruptcy court about subpoenas in Epstein's case when Epstein'stase jtself is meritless and malicious. Of course, the bankruptcy court has to assume bound to recognize a presumptively valid subpoena tha m's case has merit — as it is as issued through this Court. Only this Court can rule on the lack of merit to Epstein's case and then narrow or eliminate this separate litigation about the subpoenas.

Second, even assuming arguendAbat E stein's case could survive the pending summary judgment motion, the banIcruptcy ao,utt, simply not the proper forum for determining privilege claims in this case. Without . anYwa y challenging the legal acumen of the bankruptcy court, the ultimate issues o ge in this case must be decided by this Court. Whatever the bankruptcy co S may . cdfielude about certain privilege arguments in the context of discovery, this Co hav erent judges taking time to rule on the same issues. Rather, one court should make one bin "ng ruling one time on the privilege issues. The only court that can issue a final ruling av to ultimately rule on those privilege claims at trial. It makes no sense to

Even if the Court grants summary judgment for M, this case will continue before this Court on counterclaim against Epstein.

controlling at trial is this Court. Therefore, this Court should rule on the discovery issues as well.

Third, only this Court can fairly evaluate MI claims regarding the scope of the subpoenas. Epstein has issued through this Court extremely broad subpoenas which are unduly burdensome on and his law firm. Yet the bankruptcy court does not have authority to grant relief from those subpoenas — only this Court can do that. Under rule 1.t80(c) of the ' - Florida Rules of Civil Procedure, the trial judge may limit or prohibit discovery "to protect a party or person from annoyance, embarrassment, oppression, or and bur en or expense." As explained in Rasmussen v. South Florida Blood Service, I o.2d 533, 535 (Fla. 1987), under this rule trial judges possess "broad discretion" discovery. But that discretion rests in the "trial court," id., which obviously is4r il ith the litigation pending before it. -"- The bankruptcy court cannot exercise discron to ict this Court's subpoenas.

Finally, the bankruptcy court simply lacks jurisdiction to rule regarding privilege issues that have arisen in this Court's case/ case/It well settled that the bankruptcy court's jurisdiction is limited to "(1) cases under title 11 ...;(2) 'core' bankruptcy proceedings that either 'arise under' the Bankruptcy Code r 'arise in' a case under the Code, or (3) cases in which all interested parties 'conse o the b>nkruptcy court having jurisdiction to enter a final order in a matter that is 'rela under the Bankruptcy Code." In re Ray, --- F.3d ---, 2010 WI. 4 I60135at * 4 ( m i 10) (internal quotations omitted). Ruling on privilege claims from a subpoena issued y this Court in a tort suit filed by Epstein (who is not a party to the bankruptcy proceeding) against (who is likewise not a party to the bankruptcy proceeding) does not

fall within any of these grants of jurisdiction to the bankruptcy court and therefore Epstein's proposed procedure is without jurisdictional foundation.

#### THIS COURT SHOULD ENTER A PROTECTIVE ORDER AND ESTABLISH A SCHEDULE FOR RESOLVING THE PENDING SUMMARY JUDGMENT MOTION AND THEN ANY SURVIVING PRIVILEGE ISSUES.

While could file a jurisdictional objection to the bankruptcy court ruliug on this issue, he does not want to spawn further litigation that could delay a resolutiOn,gt the privilege issues. Instead, proposes that this Court simply assert jurisdiction otter its subpoena and the litigation that has arisen from it. The subpoena to has propounded were issued on the authority of this Court. this Court can simply withdraw or stay enfor consolidating the litigation surrounding its sub binding rulings on both the merits (or I privilege issues concerning the subp a tot e trustee that Epstein ingly, it is indisputable that is subpoena, thereby simply is Court. This Court could then make of Epstein's lawsuit and any surviving

therefore respectt'ly\\pr \\ oses that the Court take the following actions:

1. Hold its scheduled hearing on summary motion on January 5, 2011. The Court shall then Ttite>on whether any of Epstein's claims survive summary judgment motion. After \[making those rulings, the Court should then rule on whether Epstein's subpoenas should be quashed in light of its rulings. If the Court concludes that parts of the • _ \_\_/ sub —Temain viable, then the Court could rule on any remaining claims of privilege or other objections that have not been mooted by its summary judgment rulings.

1. Stay further enforcement of its subpoenas to the trustee and to pending further rulings by this Court on the merits of Epstein's underlying lawsuit and any privilege or other issues that might raise to the subpoenas.

1. Direct to prepare a privilege log regarding documents that are actually responsive to the subpoenas. Such privilege log shall be prepared within 30 days 11 ing this Court's ruling on pending summary judgment motion assuming any4 by pstein survives. At that time, shall also produce to Epstein any doc are responsive to the subpoenas to and to the trustee and for which th o privilege or other objection to production (i.e., vagueness in the subpoena or nea nably calculated to lead to discovery of admissible evidence).

1. Epstein shall then file any objet \\Itim of privilege or other objections within 15 days following respons A\\

1. shall file any response t Epstein within 10 days following receipt of the objections.

In addition, it is clear at there is an imbalance of financial resources between billionaire Jeffrey Epstein and th s on whom he is serving subpoenas. This Court possesses the . /- authority to "threcta the requesting party to pay the costs and expenses of providing discovery." N. , \\a-PHILIP J. PFD6VASNO, vFLORIDA CIVIL PRACTICE, § 10.3 at 354 (2007-08 edition) (citing CBS, Inc. v. Jae \*78 So.2d 698 (Fla. 1991); Mt. Sinai Med. Cir., Inc. v. Torbay, 555 So.2d 1300 \\ (Fla. 3d DCA 1990)). Given the vast sums available to Epstein to pursue his meritless litigation, he should be directed to pay to =, Jaffe and Stettin all costs associated with responding to

his discovery requests, including reasonable costs of attorney's time and any copying or other expenses.

Because proceedings are on-going in the bankruptcy court regarding these issues, [REDACTED] is simultaneously giving notice to the bankruptcy court, the trustee, and the Special [REDACTED] that this pleading is being filed and providing a copy of this pleading to each of them.

### CONCLUSION

This Court should stay further enforcement of its subpoena to Edwards and to the trustee Stettin pending further ruling on the pending summary judgment motion regarding Epstein's lawsuit. This Court should also enter a protective order narrowing the scope of Epstein's requests and requiring Epstein to pay all reasonable expenses associated with responding to his requests. This Court should then grant [REDACTED] pending summary judgment motion against Epstein, and then rule on any surviving privilege or other issues concerning Epstein's subpoenas.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Fax and U.S. Mail to all Counsel on the attached list, this 30<sup>th</sup> day of November, 2010.

![](<>)JACK SCAROLA\
Florida Bar No.: 169440\
Searcy Denney Scarola Barnhart & Shipley\
2139 Palm Beach Lakes Boulevard\
West Palm Beach, Florida 33409\
Phone: (561) 686-6300\
Fax: (561) 383-9451\
Attorney for [REDACTED] J. [REDACTED]

## COUNSEL LIST

Jack A. Goldberger, Esquire Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Phone: (561) 659-8300 Fax: (561) 835-8691

425 N. Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 (9 \\ Jaffe, Weissing, , Fistos & Lehrman, PL Phone: (954) 524-2820 Fax: (954) 524-2822 \\me

Marc S. Nurik, Esquire Law Offices of Marc S. Nurik One E Broward Blvd., Suite 700 'C'C/ Fort Lauderdale, FL 33301 Phone: (954) 745-5849 Fax: (954) 745-3556

901 L. Ackerman, Jr., Esquire i c ctiaSPH r Point West Burnett, P.A. 777 S Flagler Drive West Palm Beach, FL 33401 6170 Phone: (561) 727-2423 Fax: (561) 802-9976 '1 •Iiir,

The HonorableXerbert . Stettin, Trustee One Biscayne 'Pokr Suite 3700' Two South Biscayne Boulevard Miami, Florida f3313 I

Robert Carney, Special 2281 Saratoga Lane West Palm Beach, FL 33409