Draft: efta02770698

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

CIVIL DIVISION AG CASE NO. 502009CA040800XXXXMB¶

Judge David F.¶

JEFFREY EPSTEIN,¶

Plaintiff/Counter-Defendant,¶

v.¶

" (A IS T3 >Pd dnra c%30 A ToOz rim?, 9.37%." %,0 zarcg?c -444s-- an O F:r; -cm as¶

SCOTT ROTHSTEIN individually, and J. , individually,¶

Defendants/Counter-Plaintiffs. /4C¶

:4¶

PLAINTIFF JEFFREY EPSTEIN'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM DEFENDANT AND FOR SANCTIONS¶

Plaintiff, Jeffrey Epstein, by and through his undersigned counsel, hereby respectfully seeks the entry of an Order compelling Defendant to produce the documents listed in M' privilege log, or, in the alternative, the entry of an Order compelling to serve a privil, to g that fully complies with Fla. R. Civ. P. 280(b)(5), and an in camera review of the ertenr s specified below, together with an award of attorney's fees and costs, and in suppo thereof would show as follows:¶

SUMMARY OF ARGUMENT¶

On or about February 23, 2011, M, in response to several orders entered by Judge Raymond Ray in the Bankruptcy Court, filed a one hundred and fifty-nine (159) page privilege¶

log, claiming that over two thousand (2,000) documents are privileged.' This is second privilege log that blatantly fails to meet the requirements for a legally sufficient privilege log under Fla. R. Civ. P. 1.280 (b)(5), as interpreted by the Fourth District Court of Appeal in TIG Ins. Corp. v. MIE, 799 So. 2d 339 (Fla. 4th DCA 2001). In addition, although the Special required a list of names contained in the privilege log, a descriPtion of the recipients of the documents, and identification of the individuals who received blind copies, failed to provide the names of the individuals who were cop directty or who received blind copies, and many recipients are insufficiently M' identifi V ly as "Attorneys at RRA," fQ "Staff," and "RRA Personnel."2 gross fail mply with Fla. R. Civ. P. 1.280(b)(5) prevents the Plaintiff and the Court debennining whether has made any valid privilege assertions and results in a waiver of the privileges claimed. has not provided sufficient descriptions of the documents to determine if the privilege(s) claimed are valid. Finally, claims privileges that do not exist under Florida law.¶

ARGUMENT¶

I. REQUIREMENTS FOR A PRIVILEGE LOG¶

The requirements for a privilege log in Florida are set forth in Fla. R. Civ. P. 1.280(b)(5), which provides as follows (emphasis added):¶

^' privilege log is being filed contemporaneous with the filing of the subject motion. For ease of reference, excerpts from the log are attached hereto as exhibits.¶

² After Epstein's Motion to Compel was heard on August 4, 2010, the Bankruptcy Court entered at least four (4) orders directing to prepare a privilege log, the last of which required the privilege log to be completed by January 31, 2011. The first log, served on January 26, 2011, was in woeful noncompliance with the TIG requirements. On February 23, 2011, another log was served by which again patently failed to comply with TIG requirements. The February 23, 2011 log is the subject of the instant motion.¶

Claims of Privilege or Trial Protection Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disposed in a manner that, without revealing information itself privileged, or protected, will enable other parties to assess the applicability of the privilege or protection.¶

The key case in the Fourth District construing Fla. R. Civ. P. 1,280(bX5) is TIG Ins. Corp., 799 So. 2d 339, in which the Fourth District Court of Appeal denied a petition for a writ of certiorari seeking review of an order requiring TIG, the owner's insurer, to produce documents for which objections on the basis of attorney ork-product privileges were made.¶

The Fourth District noted ACC\ in TIG thAule 1.280(b)(5) is identical to its federal counterpart, Fed. R. Civ. P. 26(b)(5), whose Advisory Committee Notes state that "to withhold materials without such notice is contrary to the rule, subjects the party to sanctions under rule 37(b)(2) and may be viewed as a waiver of the privilege or protection." 799 So. 2d at 340. The TIG court further observed /that Local Rule 26.1(GX3)(b), of the United States District Court, f- , r Southern District of Florida, spelled out the requirements for a valid privilege log, id. at 341:¶

Stiterrogatory or document demand, or sub-part thereof, and an Where a claim of privilege is asserted in objecting to any ÷ s wer is not provided on the basis of such assertion:¶

• (i) The attorney asserting the privilege shall in the objection to the interrogatory or document demand, or sub-pan thereof, identify the nature of the privilege (including work product) which is being claimed and if the privilege is being asserted in connection with a claim or defense governed by state law, indicate the state's privilege rule being invoked; and

(ii) The following information shall be provided in the objection, unless divulgence of such information would cause disclosure of the allegedly privileged information:¶

(A) For documents: (I) the type of document; (2) general subject matter of the document; (3) the date of the document; (4) such other information as is sufficient to identify the document for a subpoena duces tecum, including, where appropriate, the author of the document, the addressee of the document, and, where not apparent, the relationship of the author and addressee to each other.¶

The Fourth District also quoted with approval from &oratories v. Alpha Therapeutic Corp., 2000 U.S. Dist. LEXIS 20834, at *13 (N.D,AIL . 4, 2000), in which the court stated that a privilege log should:¶

describe the document's subject mattaRo for its production, and a specific explanation of why the document is privileged or immune from discovery. These categories, especially this last category, must be sufficiently detailed to allow the court to determine whether the discovery opponent has discharged its burden of establishing the requirements expounded upon in the foregoing discussion. Accordingly, descriptions such as 'letter re claim; 'analysis of claim,' or 'report in anticipation of litigation'--with which we have grown all too familiar--will be insufficient. This may be burdensome, but it will provide a more accurate evaluation of a discovery opponent's claims and takes into consideration the fact that there are no presumptions operating in the discovery opponent's favor. My failure to comply with these directions will result in a finding that the plaintiff-discovery opponents have failed to meet their burden of establishing the applicability of the privilege. (Citations omitted)

¶

Thus, a party invoking a privilege "must...provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection." Hoot Winc, LLC v. RSM McGladrey Fin. Process Outsourcing, LLC, 2009 U.S. Dist.

¶

LEXIS 103045, at •9 (S.D. Cal. Nov. 4, 2009) (quoting Advisory Committee Notes to Rule 26(b)(5)).3¶

TIG, 799 So. 2d at 341.¶

II. PRIVILEGE LOG VIOLATES FLA. R. CIV. P. 1.280(b)(5) AND THE TIG REQUIREMENTS¶

M ' privilege log clearly violates the requirements of Florida law, and is insufficient on its face, as first evidenced by one hundred and ninety-one (191) attempts to shield documents from or to an unnamed "confidential source," especially for documents described as "Litigation Strategy." See Composite Exhibit A as an example of this frivolous claim.¶

Second, and no less outrageous, is M' use in approximately one hundred (100) log entries in the "to" and "from" categories of the generic terms "attorney and staff," "litigation," "RRA personnel," and "unknown staff attorneys at RRA." Such generic terms do not meet the TIG requirements. See Composite Exhibit B for examples. l= numerous references to unnamed "Attorneys at RRA" are patently inappropriate, if not disingenuous, preventing in each instance a necessary determination as to whether has validly invoked a privilege. Without identification of the particular RRA attorney as the sender or recipient, it is impossible¶

³ See also v. United Fire & Cas. Ins. Co., 2007 U.S. Dist. LEXIS 58578, at •9 (E.D. La. Aug. 9, 2007) ("United has provided a privilege log, but it is insufficient on its face. Rule 26(6)(5) requires such a log to 'describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.' "); Caplan v. Fellheimer Eichen Braverman & Kaskey, 162 F.R.D. 490, 492 (E.D. Pa. 1995) (party's failure to explain nature of the assertedly privileged communication precluded court from determining whether privilege applied); Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 664 (S.D. Ind. 1991) (requiring the log to list, for each separate document, the authors and their capacities, the recipients (including copy recipients) and their capacities, the subject matter of the document, the purpose for its production, and a detailed, specific explanation of why the document is privileged or immune from discovery).¶

to determine whether can properly shield the materials from disclosure. Such non-disclosure strongly suggests a deliberate effort by to prevent the disclosure of documents to and from Scott Rothstein and other employees at RRA (including other RRA attorneys, such as Adler, who was implicated by Scott Rothstein himself in recent sworn deposition testimony) involved in the massive fraud at RRA.¶

Third, privilege log fails to indicate whether the documents were copied or distributed to third parties, or whether blind copies were sent to third parties, which the Special specifically required. See Privilege Log generally.¶

Fourth, the privilege log fails to indicate whether the materials contain attachments. "Where a privileged document has attachments, each attachment must individually satisfy the criteria for falling within the privilege. Merely attaching something to a privileged document will not, by itself, make the attachment privileged." Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D.N.J. 1990). is not entitled to invoke a privilege with respect to attachments which themselves have not been described at all and lack the specificity required to determine whether any privileges apply. It is hard to fathom that not one of these documents listed in the log did not have an attachment. The Court should order that the attachments be produced.¶

Fifth, it is readily apparent that the privilege log fails to adequately describe over two hundred (200) assertedly privileged documents with descriptions such as "in re Epstein," "litigation strategy," "Meeting" and "FYI." Such shorthand, cryptic labels, with no description whatsoever of the content of the materials, do not permit Epstein or the Court to begin to evaluate the applicability of the privileges claimed by . T1G, 799 So. 2d at 341¶

privileges claimed. In sum, MI privilege log is grossly inadequate and in blatant violation of Rule 1.280(bX5), precluding Epstein and the Court from evaluating the applicability of the numerous¶

(quoting Labs, 2000 U.S. Dist. LEXIS 20834, at *13)("[D]escriptions such as 'letter re claim', 'analysis of claim' or 'report in anticipation of litigation'. . . will be insufficient.").¶

Sixth, =I privilege log does not disclose the type of documents that are assertedly privileged — e.g., email, letter, memo. See Privilege Log generally.¶

HAS NO VALID PRIVILEGE CLAIMS¶

A. Has No "Confidential Source" Privilege¶

objects to producing hundreds of pages of documents from or to a purportedly "confidential source." See examples in Composite Exhibit A. There are approximately one hundred and ninety-one (191) entries in the privilege log that cite a "confidential source." There is no Florida law, however, that gives the right to assert a privilege based upon "a confidential source." Indeed, a,.."confidential source" privilege applies only with respect to reporters protecting their spproes. See, e.g., CBS v. M, 578 So.2d 698, 700 (Fla. 1991) (journalists have qualified privilege against revealing confidential sources of information). is not a reporter. Therefore, as a matter of settled law, has no valid objection based upon a "confidential source" privilege. The Court should order these documents produced forthwith.¶

B. "Privacy Rights"¶

objects to the production of approximately nine hundred and thirty (930) documents on the ground that they are "protected by privacy rights." See Privilege Log generally and examples in Composite Exhibit C. Remarkably, claims that approximately 75% of the documents listed are shielded from discovery by unspecified "privacy rights." His objections, however, do not identify the specific "privacy" privilege or describe the person whose privacy interests are assertedly at stake or the nature of the privacy interest at stake. Such amorphous "privacy rights" are non-existent under Florida law. No valid privilege can be raised in an attempt to protect purely generic "privacy rights."¶

Section 90.501, Fla. Stat., expressly states in relevant part that "[e]xcept as provided by this chapter, any other statute, or the Constitution of the United States or of the State of Florida, no person in a legal proceeding has a privilege to . . . (3) [r]efuse to produce . . . any writing." Neither the Florida Evidence Code, other Florida statutes, or the Constitution, recognizes a privilege for generic "privacy' tights" or precludes the production of documents in a legal proceeding based upon a general right of privacy. See La Roche v. Wainwright, 599 F.2d 722, 726 (5th Cir. Fla. 1979) (rejecting "fourteenth amendment rights to privacy" to protect marital relationship: "[W]e see no persuasive reason to extend the right of privacy, based as it is on "penumbras and emanations" of other more explicit constitutional rights, to evidentiary matters protecting marital relationships, long thought to be uniquely within the regulatory province of the individual states.").¶

In sum, cannot hide behind a sham privilege based on "privacy rights."¶

C. Attorney-Client Privilege Does Not Apply to Non-Attorney-Client Communications¶

invokes the attorney-client privilege with respect to thousands of pages of documents listed in 120 pages of his 159-page privilege log. See Privilege Log generally. Significantly, the log describes only three of these documents as att ey-client communications. See Exhibit D, 02546-02547, 02809-02810, 02807-0 There is no description or information provided by to suggest that any her documents claimed to be subject to the attorney-client privilege, actually are. 7 following examples demonstrate M' utterly cavalier and improper invocati of a attorney client privilege: 1) Priscilla Nascimento to "Attorneys at RRA" re: conference room; and 2) Beth Williamson to re: "Discussi \ s t Brad's recovery." See Composite Exhibit E. The attorney-client privilege a on y to communications between counsel and client and cannot be asserted to bloc /the i very of communications that are not identified as attorney-client communications ee, e. " §90.502, Fla. Stat., Skorman v. Hovnanian of Florida, Inc., 382 So. 2d 1376, 1378 (Fla. 4th DCA 1980). Accordingly, no attorney-client privilege attaches to communications that have not been specifically identified by as attorney-client communications.¶

In addition, with respect to the numerous communications or documents to which has asserted the attorney-client privilege, must establish all of the following elements: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of a bar of a court, or his subordinate, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. See § 90.502, Fla. Stat.; State v. Rabin, 495 So. 2d 257, 60 (Fla. 3d DCA 1986). The attorney-client privilege does not apply to communications between an attorney and a third party, or a person who is not a client. See State v. Rabin, 495 So. 2d at 260 (attorney-client privilege did not attach to . attorney's communication with client's ex-wife). The attorney-client privilege is waived if the client voluntarily discloses the substance of the communicatio e § 90.507, Fla. Stat.; Delap v. State, 440 So. 2d 1242, 1247 (Fla. 1983) ("[W]hen a f ceases to treat the matter as confidential, it loses its confidential character.").¶

M e woefully inadequate privile s not provide sufficient information to enable Epstein and the Court to determine the applicability of the attorney-client privilege to the thousands of communications listed in the privilege log. The alleged client involved is not disclosed with respect to each communication. The purpose of the document is not described. The names of all recipients are not disclosed, preventing a determination as to whether the attorney-client privilege was waived. No information is provided which would enable the Court and Epstein to determine whether the communications were intended to be disclosed to third parties or did not involve the giving of legal advice, in which case there is no privilege. See, e.g., Watkins v. State, 516 So. 2d 1043, 1046 (Fla. list DCA 1987).¶

D. The Work Product Privile e Cannot Be Determined From Privilege Log¶

Forty years ago, the Florida Supreme Court, in Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 112 (Fla. 1970), explained what is covered by the work product privilege:¶

[T]hose documents, pictures, statements and diagrams which are to be presented as evidence are not work products anticipated by the rule for exemption from discovery. Personal views of the attorney as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his own 1 convenience, but not to be used as evidence, come within general category of work product.¶

The work product doctrine protects documents and papers o prepared in anticipation of litigation, regardless of whether th communications between attorney and client. Fla. R. Civ. P. 110 .2 (6)(2). they or a party in to confidential See Southern Bell TeL & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994). Work product is a qualified immunity from discovery. See DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3d DCA 1994). The work product privilege does not emend to materials intended for use as evidence at trial. Northup v. Acken, 865 So. 2d 12 04).¶

Work product falls in gories: 1) "fact" work product consisting of factual information pertaining to a client's ase that is prepared in anticipation of litigation or for trial by another party; and 2) "opinion" work product, which includes all attorney's mental impressions, opinions or conclusions about a client's case. The former is discoverable upon a showing of (a) need for the materials to prepare the party's case, and (b) inability to obtain the substantial equivalent of such materials without undue hardship. See, e.g., Metric Engineering, Inc. v. Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003). The latter is subject to nearly absolute immunity. See, e.g., v. Fla. Power & Light Co., 632 So. 2d 696 (Fla. 3d DCA 1994).¶

A trial court is instructed "to make particularized findings in support of its determination of which of the documents are, or are not, subject to the work product privilege." Dismas Charities, Inc. v. Dabbs, 795 So. 2d 1038, 1039 (Fla. 4th DCA 2001). The party asserting the privilege must prove that the materials constitute work product. See, e.g., Prudential Ins. Co. of Am. v. Fla. Dept of Ins., 694 So. 2d 771, 773-74 (Fla. 2d DCA 1997) (objecting party provided affidavits stating that the documents were prepared in anticipation of litigation). See, e.g., Lloyds Underwriters of London v. El-Ad Villagio Condo. Ass 'n, 976 So. 2d 28 (Fla. 4th DCA 2008) (discovery order quashed where no in camera inspection was made). Thus, a trial court is not required to protect materials from discovery if a party makes no affirmative showing, and only makes "a blanket statement that these items were prepared in anticipation of litigation and are protected from disclosure without presenting evidence to support the claim." Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855, 856-57 (Fla. 2d DCA 1997).¶

Once the party seeking the documents challenges non-production, the burden shifts to the opposing party to establish that the materials were prepared in anticipation of litigation in which case they are discoverable upon a showing that the former has need of the materials and cannot obtain the equivalent without undue hardship. See, e.g., Tampa Med. Assoc., Inc. v. Estate of 903 So. 2d 259, 263-64 (Fla. 2d DCA 2005).¶

Given the numerous violations on the face of 1= 1 privilege log, including no descriptions of the types of communications, inadequate descriptions of the content of the communications, and no references to particular clients, Epstein and the Court have no way to determine whether the work product privileges claimed are fact or opinion work product. See Privilege Log generally. It is essential that sufficient information be provided by to distinguish between fact and opinion work product. The need to ascertain which "facts" are¶

being protected is particularly critical given the testimony by Scott Rothstein of extensive fraud at RRA, and Epstein's right to discover fact work product upon a showing of need.¶

E. Pooled, Joint Defense or Common Litigation Interest Cannot Be Determined from the Privilege Log¶

Litigants who share "unified interests" may exchange privileged informat on' to prepare their case without losing the benefit of the attorney-client interest pursuant to t I oint defense," "common interest" or "pooled information" exception. Visual Scene, ilkington Bros., 508 So. 2d 437, 440 (Fla. 3d DCA 1987). The exception has bee .recognized in the case of co-defendants, co-parties to potential litigation, members of a class of plaintiffs pursuing separate suits, and defendants in separate actions. Id. (citations omitted).¶

However, the joint defense privilege, more properly identified as the "common interest rule," see generally Capra, The Attorney-Client Privilege In Common Representations, 20 Trial Lawyers Quarterly, Summer 1989, at 20, has been described as an extension of the attorney client privilege, Waller v. Financial Corp. of Am., 828 F.2d 579, 583 n.7 (9th Cir. 1987). It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel. See United States v. Bay State Ambulance and Hosp. Rental Serv., 874 F.2d 20, 28 (1st Cir. 1989). Only those communications made in the course of an ongoing common enterprise and intended to further the enterprise are protected. Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir.), cert. denied, 474 U.S. 946, 106 S. Ct. 342, 88 L. Ed. 2d 290 (1985); Matter of Bevil!, Bresler & Schulman Asset Management Corp., 805 F.2d 120 (3d Cir. 1986). United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. N.Y. 1989) (emphasis added). Thus, "parties seeking to invoke the exception must establish that they¶

agreed to engage in a joint effort and to keep the shared information confidential from outsiders." Ken's Foods, Inc. v. Ken's Steak House, Inc., 213 F.R.D. 89, 93 (D. Mass. 2002). See also United States v. Sawyer, 878 F. Supp. 295, 297 (D. Mass. 1995) (despite similar interests between employer and employee, there was insufficient evidence that communications were made during the course of a joint defense effort; proponent could not establish the time frame of the purported agreement or the acts creating and/or terminating the agreement).¶

M ' privilege log does not establish that the communications listed were made during the course of an "ongoing common enterprise," does blish relevant time frames, and does not establish that "a joint defense effort or 'it' as been decided upon and undertaken by the parties and their respective orth River Ins. Co. v. Columbia Casualty Co., 1995 U.S. Dist. LEXIS 53, aty ( t!D an. 5, 1995) (citation and quotation omitted).¶

Given the critical gaps in privilege log, it is impossible to determine whether can properly invoke the "common interest" doctrine to preclude discovery.¶

IV. MIER FAILURE TO SUPPLY AN ADEQUATE LOG WAIVES THE PRIVILEGES CLAIMED AND SUPPORTS SANCTIONS AGAINST¶

It is settled that the failure to supply a privilege log which complies with Florida law results in the waiver of a privilege under Florida law. TIG, 799 So. 2d at 341 ("Any failure to comply with these directions will result in a finding that the plaintiff-discovery opponents have failed to meet their burden of establish[ing] the applicability of the privilege."). The TIG court noted that Rule 1.280(B)(5) "uses mandatory language, and federal courts have found waiver where the federal rule was violated." Id. (citing cases). The TIG court concluded that there was¶

no departure from the essential requirements of the law in compelling production based upon a privilege waiver: "Because the trial court did not have the benefit of specific descriptions of the documents, we assume that the court found a waiver." Id. at 342. See also Century Bus. Credit Corp. v. Fitness Innovations & Techs., Inc., 906 So. 2d 1156, 1157 (Fla. 4th DCA 2005) (the court denied a petition for certiorari directed to an order finding a waiv s ofg in regard to the production of documents because the petitioner filed a privilege which was "completely inadequate"); Kaye Scholer LLP v. 878 So. 2d 447, 449 (Fla. 3d DCA 2004) (the purpose of the privilege log requirement is "to identify materials which might be subject to a privilege or work product protection so that a court can rule on the 'applicability of the privilege or protection' prior to trial...Failure to comply with the requirements of Rule 1.280(b)(5) results in the waiver of any attorney-client and work-product privileges."); Omega Consulting Group v. Templeton, 805 So. 2d 1058, 1060 (Fla. 4th DCA 2002) (noting that where a privilege log "filed by the corporations did not contain sufficient detail to comply with the requirements of Florida Rule of Civil Procedure 1.280(bX5)," the attorney-client privilege may be waived).¶

has had ample opportunities to file a proper privilege log, and has declined to do so. Given his blatant violation of Rule 1.280(bX5), the magnitude of the deficiencies in his privilege log, and his cavalier invocation of numerous clearly inapplicable and/or non-existent privileges, this Court should enter an order finding a waiver and requiring production of the documents requested. See TIG.¶

In the alternative, the Court should compel to produce a privilege log that strictly complies with TIG and the requirements of Rule 1.280 in order that Epstein and the Court can reasonably determine whether any valid privileges have been asserted and were not waived.¶

At a minimum, and as soon as convenient, the Court should conduct an in camera inspection of the documents referenced in ¶¶ 20, 22-4 of the Corrected Second Amended Complaint and determine whether any of the privileges asserted by to block the production of these highly relevant materials are valid or have been waived. These materials approximately thirty (30) emails — were sent to or from during the critical period of May to October, 2009, when the Ponzi scheme was imploding. The critical nature of these documents is vividly demonstrated by Rothstein's testimony during his recent deposition that he had asked or Adler to specifically set aside a flight I st for an Epstein private jet. (Tr. Rothstein Depo 12/21/11 at 2278). Rothstein fu • that he showed boxes with Epstein files to the Discala investors in his office, disCios the actual names of the parties "as a way of me attempting to induce them to invest further." (Tr. Rothstein Depo 12/20/11 at 1917; see also Tr. 12/21/11 at 2278). Rothstein explained with regard to lawsuits that "this was a big ticket because there was the defendant and he's a wealthy guy" and was associated with public figures who did not want their names dragged through the mud. (Tr. Rothstein Depo 12/21/11 at 2283).4 Thus, because the documents specifically referenced in the Corrected Second Amended Complaint are critical to the continued deposition of Rothstein in June, 2012, an in camera inspection should be conducted of those documents prior to that time, although¶

It is important to note that in li ht of Rothstein's testimony, potentially relevant entries durin this time frame — including, to "Attorneys at RRA" re: "Fli ht lo s for Epstein," to "Attorneys at RRA" re: "Sub po Clinton " to "Attorneys at RRA" re: "Investigation Epstein's planes," to "Attorneys at RRA" re: "Epstein meeting," and Priscilla Nascimento to ""Attorneys at RRA" re: "Epstein's Conference Room Reserved" — raise disturbing questions as to whether the "Attorneys at RRA" designation used by in his log is meant to disguise communications to Rothstein and others involved in e Ponzi Scheme.¶

Epstein does not hereby waive the right to an in camera review with respect to any of the other materials referenced in the Privilege Log.¶

Finally, the actual prejudice to and impact on Epstein by willful and continued non-compliance is palpable. Epstein has been prejudiced because he has not been able to conduct critical discovery necessary for the prosecution of his claims, and necessary for opposition to summary judgment motion. Epstein has spent tens of thousands of ti dollars in attorney's fees trying to obtain the requested documents Ont and address • privilege log issues. Sanctions should be imposed on MI .) prevent unfair prejudice to Epstein and to insure the integrity of the discovery Florida Steel Corp., 691 F. 2d 480, 482 (Ilth Cir.1 . ee Aztec Steel Company v.¶

In sum, pursuant to Fla. R. Civ. P. 1.280AShis Court should enter an Order finding that lin privilege claims are waived, requiring to produce the documents requested by Epstein, and requiring to pay the reasonable expenses incurred by Epstein, including attorney's fees, costs, payments to the Special caused by MI' failure to provide a timely and legally sufficient privilege log, and granting such other and further relief as the Court deems necessary and proper.¶

Respectfully sub 'tied,¶

J sep 4. Ackerman, Jr. lorida Bar No. 235954 BURNETT, P.A.¶

901 Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Telephone: (561) 802-9044 Facsimile: (561) 802-9976 Attorneys for Plaintiff Jeffrey Epstein¶

and E. Knight Florida Bar. No. 607363 BURNETT, P.A. Espirito Santo Plaza, 14th Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 Attorneys for Plaintiff Jeffrey E¶

CERTIFICATE OF SERVICE¶

I HEREBY CERTIFY that a true and correct copy of the g was sent via U.S. Mail on this 8'h day of February, 2012 to: Jack Scarola, Esq., ay Denney Scarola Barnhart & Shipley, P.A., 2139 Palm Beach Lakes Blvd., West Palm Beach, FL 33409; Jack Alan Goldberger, Esq., Atterbury, Goldberger & Weiss, P.A., 250 Australian Ave. South, Suite 1400, West Palm Beach, FL 33401-5012; and Marr S. urik, Esq., Law Offices of Marc S. Nurik, One East Broward Blvd., Suite 700, Fort 4 t)u FL 33301.¶

'LMAA-1 oseph L. Ackerman, Jr.¶

titan n Fa' 2¶

Jaife,_Weisstn Fistos & Lehrman¶

	DATE TO	FROM	DESCRIPTION	OBJECTION
05693-05695	05/28/2009	Confidential Source	Utigatlon Strategy	W/P Priv.; not reasonably calculated to lead to
05698	08/21/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
05706-05709	05/28/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
05720-05721	05/29/2009	Confidential Source	Providing New Witnesses
05738-05739	05/29/2009	Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
05743-05745	05/29/2009	Confidential Source.
			Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
05754	08/03/2009	Confidential Source . Litigation Strategy		W/P Priv.; not reasonably calculated to lead to
05759-05762	06/01/2009 Bradley	Confidential Sour	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
05765-05768	06/23/2009	Confident	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
05771-05773	06/03/2009	Confidential Source	Additional Information	RE:
05777-05779	06/03/2009	Confidential Source	Additional information	RE:
05784-05786	06/03/2009	Edwards Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
05791-05794	06/03/2009 Bradley Edwards	Confidential Source	Additional Information	RE:
05803	07/22/2009 Bradley	Confidential Source	Litigation Strategy	W/P PrN.; not reasonably calculated to lead to
05836-05837	07/08/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
05842-05843	07/08/2009	Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to

Jaffe Weissing, Fistos & Lehrman¶

Privile e Lo — Dated 2-23-2011¶

	DATE TO	FROM	DESCRIPTION	OBJECTION
05848	07/28/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
05852-05853	07/29/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
05857.05858	07/31/2009	Confidential Source	Litigation Strategy	„06.,
05952-05953	08/25/2009	Confidential Source	Litigation Strategy	%.,./W/P Priv.; not reasonably calculated to lead to
06192.06197	06/23/2009	Confidential Source	Secret Plea Deal For Epstein	W/P Prlv.; not reasonably calculated to lead to
	06198-06201 06/24/2009	Confidential
			Secret Plea Deal For EtiM	W/P Priv.; not reasonably calculated to lead to
06203	07/23/2009	Confidential Source	Litigation Strategy	W/P PrN.; not reasonably calculated to lead to
06401	09/23/2009	Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
	06643-06651 09/17/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
06788-06789	09/ 28/2009	Confldenti	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
06942-06943	09/26/2009	Confidential
		Brad*	Edwards Additional	Information RE:
06953	08/14/2009	Confidential Source	Litigation Strategy	W/P Prlv.; not reasonably calculated to lead to
06955-06957	10/02/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
	06959-06961 08/11/2009	Confidential Source	Secret Plea Deal For Epstein	W/P Priv.; not reasonably calculated to lead to
06963-06980	08/11/2009	Bradley Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
06986-06989	10/03/2009	Confidential Source	Secret Plea Deal For Epstein	W/P Priv.; not reasonably calculated to lead to
07010-07014	10/04/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to

Privile e Lo — Dated 2-23-2011¶

Jaffe. Weissin Fistos & Lehrman¶

	DATE TO	FROM	DESCRIPTION	OBJECTION
07017-07018	09/04/2009	Confidential
			Providing New Witnesses	W/P PrN.; not reasonably calculated to lead to
07143-07144	10/01/2009	Confidential
			litigation Strategy	kW/P
07147-07150	09/18/2009	Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
	10/13/2009	Confidential
			Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
07605-07615	09/07/2009	Confidential Source	Litigation Strategy li‘-}	W/P Priv.; not reasonably calculated to lead to
07646-07647	09/08/2009	Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
07674-07697	09/08/2009	Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
	10/04/2009	Confidential
			Edwards Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
08380	09/18/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
08427-08430	09/24/2009	Confidential Source	litigation Strategy	W/P Priv.; not reasonably calculated to lead to
08450	05/17/2009	Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
08507	10/03/2009	Confidential Source	Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
10092-10098	08/31/2009	Confidential Source	Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to
01610	06/03/3009	Confidential
			Litigation Strategy	W/P Priv.; not reasonably calculated to lead to
01612	06/04/2009	Confidential
			litigation Strategy	W/P Priv.; not reasonably calculated to lead to
01451-01458	05/27/2009	Confidential
			Providing New Witnesses	W/P Priv.; not reasonably calculated to lead to

Privilege Log— Dated 2-23-2011¶

Jaffe. Welssine. Fistos & Lehrman¶

PATE IQ FROM DESCRIPTION OBJECTION
not	reasonably	calculated	to	lead	to	the
19856 10/17/2009 Mike Fisten Mike Flsten Investigation into EpStein'S
planes it.,
	seasonably	calculated	to	lead	to	the
20888 09/12/2009 =Adler Potential New witnesses W/P; Attorney Client Privilege; Irrelevant and
not	reasonably	calculated	to	lead	to	the
20946 05/11/2009 Attorneys at RRA
sle tia )
investigation Epstein's
not	reasonably	calculated	to	lead	to	the
05807-05810 07/23/2009 Attorneys at RRA Priscila
'Ci' .1
Conference room reserved . W/P; Attorney Client Privilege; Irrelevant and
not	reasonably	calculated	to lead		to	the
05262-05263 07/22/2009 Jacqule Johnson investigator information W/P; Attorney Client Privilege; Irrelevant and
not	reasonably	calculated	to lead		to	the
25829 05/11/2009 William Berger Motion to unseal criminal records W/P; Attorney Client Privilege; Irrelevant and
not	reasonably	calculated	to lead		to	the
25830-25831 05/11/2009 Attorneys at RRA Investigation Into Epstein's
not	reasonably	calculated	to	lead	to	the
25811-25813 05/11/2009 Attorneys at RRA investigation into Epstein's
not	reasonably	calculated	to	lead	to	the

Privilege Log— Dated 2-23-2011¶

MI Jaffe, Welssing, Fistos & Lehrman¶

	DATE	TO	FROM	DESCRIPTION	OBJECTION
					privacy rights
18174-18176	08/24/2009	Ken Jenne	Mike Fisten	Epstein Probation	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18172-18173	08/24/2009	Mike Fisten	[REDACTED]	Epstein Probation	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18170	08/24/2009	[REDACTED]	Mike Fisten	Epstein Probation	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
03106	06/03/3009	[REDACTED]	Shawn Gilbert	Epstein Case Info	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
02593-02594	05/13/2009	[REDACTED]	Shawn Gilbert	Discussion with secretary regarding client information	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
08014	Undated	Unknown Staff	[REDACTED]	Miscellaneous case info	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
27494	10/23/2009	Attorneys at RRA	Mike Fistos	Legal Research RE: Causes of action against Epstein	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18166-18167	08/04/2009	[REDACTED]	Mike Fisten	Copperfield Depo	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights

Privilege Log — Dated 2-23-2011 Farmer, Jaffe, Weissing, Edwards,Fistos &Lehrman¶

	DATE	TO	FROM	DESCRIPTION	OBJECTION
					discovery of admissible evidence; protected by privacy rights
25815-25822	06/01/2009	William Berger	[REDACTED]	Depo information	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18358-18359	07/24/2009	[REDACTED]	Ken Jenne	Investigation into Epstein's planes	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
05382	09/12/2009	[REDACTED]	Mike Fisten	Potential new witnesses	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
08033-08070	10/23/2009	Attorneys at RRA	Mike Fistos	Legal Research RE: Causes of action against Epstein	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
25997	10/23/2009	Scott Rothstein	[REDACTED] Adler	Legal Research RE: causes of action against Epstein	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
26741-26763	10/23/2009	Attorneys at RRA	[REDACTED]	Legal Research RE: causes of action against Epstein	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
25774-25777	05/12/2009	[REDACTED]	Susan Stirling	Filed Motions	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18177-18179	08/24/2009	Ken Jenne	[REDACTED]	Epstein Probation	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by

Privilege Log — Dated 2-23-2011¶

Jaffe. Weissing. Fistos & Lehrman¶

	DATE	TO	FROM	DESCRIPTION	OBJECTION
18164-18165	08/03/2009	[REDACTED] [REDACTED]	Mike Fisten	Copperfield Depo	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18771-18773	04/27/2009	Marc Nurik	[REDACTED] [REDACTED]	Legal Research RE: causes of action against Epstein	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18742-18744	09/10/2009	Jacquie [REDACTED]	[REDACTED] [REDACTED]	Dershowitz Depo	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18737-18741	09/10/2009	Jacquie [REDACTED]	[REDACTED] [REDACTED]	Depo technicalities	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
20263-20282	10/14/2009	Pat [REDACTED] Mike Fisten	Ronald Wise	Vehicle Registrations-Visoski	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
20219-20262	10/14/2009	Pat [REDACTED] Mike Fisten	Ronald Wise	Visoski Research & Questions	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
17225-17230	07/22/2009	[REDACTED] Edwards	Jacquie [REDACTED]	Wayne Black Retainer	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
17038-17040	10/29/2009	Cara Holmes	Jacquie [REDACTED]	RE: Subpoenas for Epstein's attorneys	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
16916-16928	10/19/2009	[REDACTED] [REDACTED]	Jacquie [REDACTED]	Witness List	W/P; Attorney Client Privilege; Irrelevant and

Privilege LO — Dated 2-23-2011¶

Jaffe. Weisslns. Fistos & Lehrman¶

	DATE	TO	FROM	DESCRIPTION	OBJECTION
					lead to the discovery of admissible
13315	08/03/3009	Denis Kleinfeld	Beth Williamson	Litigation Strategy	Work Product;attorney client
					lead to the discovery of admissible
01080-01081 06/22/20O9		Robert C. Buschel	J.	Jane Doe brother	Attorney/Client privilege and/or work product
01077	05/28/2009	Robert C. Buschel	■1.	Doe family member	Attorney/Client privilege and/or work product
02445-02446	05/05/2009		J. Susan K. Stirling	rv. Atlantic asphalt	Attorney/Client privilege and/or work product
03049	09/21/2009		J. D.F.	New addition to the case	Attorney/Client privilege and/or work product
02425-02426	06/17/2009	Susan K. Stirling	J.	Jane Doe v. Dukenik	Attorney/Client privilege and/or work product
02669	09/24/2009		3. Jacquie	Subpoena for Adriana Muclnska	Attorney/Client privilege and/or work product
02647	08/06/2009	Mike Fisten		Samantha Lee	Info Attorney/Client privilege and/or work product
03688-03691	04/03/2009	Robin	T.
			1. 31.	Case number assignments	Attorney/Client privilege and/or work product
03692-03693	05/06/2009		J. Susan K. Stirling	*041 Case list	Attorney/Client privilege and/or work product
15678-15680	09/29/2009	Jacquie	Bradley J.	Sub oena for	Attorney/Client privilege and/or work product
15689	10/01/2009	Jacqule	1.	Client Information	Attorney/Client privilege and/or work product
02546-02547	09/22/2009	D.F.	1.	Client communication	Attorney/Client privilege and/or work product
02809-02810	09/28/2009	N.R.	1	Client communication	Attorney/Client privilege and/or work product
02262	07/23/2009	Jacqule	J.	Discussion re:	client/victim
02807-02808	10/01/2009	N.R.	.I.	Client communication	Attorney/Client privilege and/or work product
03760-03828	04/01/2009	RRA Personnel	RRA personnel	Client names/types of action/
03759	04/01/2009	Russell Adler	J.	Conflict Check for Brad	Attorney/Client privilege and/or work product
08358-08359	09/14/2009	Pat	J.	Client info	Attorney/Client privilege and/or work product

IEXHIBIT D¶

Privilege Log — Dated 2-23-2011¶

Jaffe, Welssing.1=1, Fistos & Lehrman¶

	DATE	TO	FROM	DESCRIPTION	OBJECTION
					privacy rights
05295-05297	07/23/2009	Attorneys at RRA	Priscilla Nascimento	RE: Epstein Conference Room Reserved	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
05298	08/03/2009	Mike Fisten		Discussion of Epstein strategy	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
05261	07/23/2009	Amy Swan		Victim Psychological Assessment	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
18358-18359	07/24/2009		Ken Jenne	Investigation into Epstein's planes	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
04431-04432	08/14/2009	Jacquie		Edwards	RE: Epstein-Maxwell Subpoena	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
04419-04420	04/09/2009		Paul Cassell	RICO Statement	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
04403-04416	10/17/2009	Paul Cassell		Punitive Damages	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights
04387-04402	08/19/2009	Paul Cassell		Victim Complaints, Forensic accountants, & Fraudulent Transfers	W/P; Attorney Client Privilege; Irrelevant and not reasonably calculated to lead to the discovery of admissible evidence; protected by privacy rights

Privilege Log— Dated 2-23-2011¶

Jaffe, W "ssi Fistos & Lehrman¶

DATE IQ FROM DESCRIPTION	OBJECTION
04893-04896 09/10/2009 lacquie Epstein Discovery Work	product;	attorney/client	privilege;
04890 09/10/2009 Jacquie Epstein Discovery Work	product;	attorney/client	privilege;
04884-04885 09/10/2009 Jacquie EPstein
6 \
Work	product;	attorney/client	privilege;
01469 07/17/2009 Ken Jenne Discussions about the Epstein
Work	product;	attorney/client	privilege;
04745-04747 08/04/2009 Jacqu Johns;" 8 E pstei n depo la New York ' ' Work	product;	attorney/client	privilege;
04738-04744 08/25/2009 -Paul Cassell Hearing regarding the Epstein
Work	product;	attorney/client	privilege;
04660 10/22/2009 Marc Nurik Epstein AUSA - Attorneys Fees Work	product;	attorney/client	privilege;
04642-04646 09/11/2009 Beth Williamson Discussions about Brad's
Work	product;	attorney/client	privilege;