IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, -vs- SCOTT ROTHSTEIN individually and J. individually, Defendants/Counter-Plaintiffs. Cos DEFENDANT/COUNTER-PLAINTIFF EDWAR)S' MOTION TO STRIKE PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPS' EIN'S MOTION FOR SUMMARY JUDGMENT ON THE FOURTH • MENDED COUNTERCLAIM AND PP RTIN NDUM OF LAW Defendant/Counter-Plaintiff, ds, individually, by and through his undersigned counsel, hereby files Hi' tion to Strike Plaintifl7Counter-Defendant Jeffrey Epstein's Motion for Summary J the Fourth Amended Counterclaim and Supporting Memorandum of Law, based o yre w of the case doctrine. #### RbWLNT PROCEDURAL BACKGROUND In the Fotfrllt,Amended Counterclaim, raised two claims against Epstein: 1) abuse of d 2) malicious prosecution. As to the malicious prosecution claim, alleged filing of the original complaint by Epstein constituted malicious prosecution because Epstein filed it for the sole purpose of "further attempting to intimidate .. . and others into abandoning or settling their legitimate claims for less than their just and reasonable value." After the filing of the Fourth Amended Complaint, Epstein moved for summary judgment, arguing as to the malicious prosecution claim that summary judgment was required based upon the litigation privilege. Alternatively, Epstein argued that the claim failed as a matter of law because the "undisputed facts" established that there was probable cause for his original action against which barred a claim for malicious prosecution. He also claimed that could never establish a bona fide termination in his favor. The abser robable cause for the prosecution and bona fide termination in the plaintiff's two of six elements of a claim for malicious prosecution. See Rivernider v. Mey 4th DCA 2015) (noting the six elements to a malicious prosec ;&) ' c a . I) the commencement of a judicial proceeding; 2) its legal causation by the pres it t e nt against the plaintiff; 3) its bona fide termination in favor of the plaintiff; c 81, h s nce of probable cause for the prosecution; 5) malice; and 6) damages). bic, ponded to the Motion, fully addressing both the litigation privilege argumen d III" probable cause and bona fide termination arguments. .3d 602, 604 (Fla. At the hearing on the tion r Summary Judgment, this Court explained that it "would not grant the motion bec r, at least those two reasons; that is that I believe that there are questions of fact ted to e probable cause issue, as well as the bona fide determination issue additionally' 1 hearing transcript, p.24) (A copy of the transcript is attached as Exhibit A). Thti ourt determined, based upon the evidence submitted and the argument, that the probable cause issue was one for the jury. However, this Court granted summary judgment in favor of Epstein based on the litigation privilege, relying on Wolfe v. 128 So.3d 67 (Fla. 3d DCA 2013). Accordingly, Final Judgment was entered in favor of Epstein. appealed the summary judgment, addressing in his Initial Brief only the litigation privilege issue, as that was the basis upon which this Court ruled against In his Answer Brief, Epstein argued: In addition, Appellee argued in his Summary Judgment motion that Appellant could not satisfy all of the elements of a Malicious Prosecution claim, including that the suit by Appellee against Appellant resulted in a bona-fide termination in favor of Appellant. Appellee took a voluntary dismissal without prejudice, ich does not constitute a bona-fide termination, one of the six essential elem a malicious prosecution claim. See Valdes v. GAB Robins, 924 So.2d DCA 2006). Appellant neither addresses nor submits argument lee's assertion, so this is not addressed in this Answer Brief. R: pellee reasserts all argument as delineated in his original M ort summary Judgment and relies thereupon. (AE3, p.7, n1) (emphasis added). (A copy of Epstein's Answ attached as Exhibit B). While the appeal was pending at the Fourth Fischer v. Debrincat, 169 So.3d 1204 (Fla. 4th In Fischer, the court held that the litigati malicious prosecution or abuse of p Supreme Court ultimately app Wolfe. at court issued an opinion in approved, 217 So.3d 68 (Fla. 2017). c could not be applied to bar a claim for court certified conflict with Wolfe; the Florida er and disapproved the Third District's decision in In its Opinio, as to the litiga rev. deni stop there. e court also addressed the probable cause issue. As to that issue, the court held: ge issue. the Fourth District held that its decision in Fischer controlled v. Epstein, 178 So.3d 942, 943 (Fla. 4th DCA 2015), 15-2286, 2017 WL 2492567 (Fla. June 9, 2017). However, the court did not Epstein suggests that this case could be decided on a tipsy coachman analysis, as he alleges that all the elements of the cause of action were not present. However, the trial court specifically found that material issues of fact remained as to the elements of the claim. Based upon the facts presented and the inferences which may be drawn from those facts, we will not disturb the trial court's evaluation. Id. (emphasis added). Thus, the Fourth District considered Epstein's probable cause argument and expressly affirmed this Court's decision that summary judgment was not appropriate on that issue. #### ARGUMENT This Court's decision that there was a genuine issue of material fact as to the probable cause issue was considered and approved by the Fourth District Court of 1; further consideration of the issue is barred by the law of the case doctrine. IS "The doctrine of the law of the case requires that questions a ally decided on appeal must govern the case in the same court and the trial Aco ; ) all subsequent stages of the proceedings." Florida Dept of Transp. v. Julia 0 .2d 101, 105-06 (Fla. 2001) (citing v. Massey, 384 So.2d 24, 28 (Fla. 8 I points of law which have been adjudicated become the law of the case and in exceptional circumstances, no longer open for discussion or consideration i ent proceedings in the case."); Strazzulla v. IM=, 177 So.2d 1, 3 (Fla. 19 r the law of the case doctrine, a trial court is bound to follow prior rulings of the a llat ourt as long as the facts on which such decision arc based continue to be the facts o e." Id. at 106. Epstein is C to grant summary judgment in his favor on the basis that there is no genuine i material fact that he had probable cause to bring his original action against ver, Epstein made this same argument to the Fourth District in his Answer Brief. The Fourth District rejected it and approved this Court's ruling on that issue, and "the facts on which this decision [was] based continue to be the facts of the case." Juliano, 801 So.2d at 106. Therefore, the law of the case doctrine binds this Court to follow the Fourth District's holding (and therefore this Court's prior determination) on this issue. The Fourth District Court of Appeal has already affirmed this Court's decision that there is a genuine issue of material fact as to probable cause; thus, consideration of this issue by this Court again is precluded by the law of the case doctrine. Gabor v. Gabor & Co., Inc., 599 So.2d 737, 739 (Fla. 3d DCA 1992), is directly on point. In Gabor, the appellate court held that there was a genuine issue of material fact as to the claim in question and reversed the trial court's entry of summary judgment. On court considered the same issue again in a successive motion for summary, summary judgment as to the claim in question. On appeal of the sec appellate court again reversed, based upon the law of the case e court explained: the trial t and entered judgment, the In the case sub judice, this court had determin genuine issue of material fact existed as to whq in their capacities as directors or officers which formed the basis of Sussex's com the Gabors did not present any evid evidence previously presented to "law of the case" doctrine, th enter summary judgment on a summary judgment. low appeal that a and Ronald Gabor acted orations during the events n emand, the record reflects that ent from, or in addition to, the ourt on this point. Applying the was error for the trial court to viously determined not amenable to Gabor v. Gabor & Co., Inc., 5 737, 739 (Fla. 3d DCA 1992); see also United Auto. Ins. Co. v. Comprehensive H rr ., 173 So.3d 1061, 1066 (Fla. 3d DCA 2015) (entry of summary judgment, which ff ed on appeal, precluded trial court readdressing the same issue on remand); Wa P. L. Dodge Mem'l Hosp., 399 So.2d 114, 115 (Fla. 3d DCA 1981) (holding that th te court's determination that there were genuine issues of material fact as to a claim constituted law of the case on remand). Therefore, for the reasons stated above, this Court is obligated to deny Epstein's Motion for Summary Judgment based upon the law of the case doctrine, and there is no need to even the attached service list, by email, on September 25, 2017. I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on A > Jack Scarola, Esq. SEARCY DENNEY SC BARNHART & SHIPL 2139 Palm Beach West Palm Beac QR 409 eservic jsx@sear BUIZ TQIQ & ROCKENBACH, P.A. Commons/Suite 350 ailroad Avenue alm Beach, FL 33401 721-0400 ttomeys for J. pmb®FLAppellateLaw.com kbt@FLAppellateLaw.com +6s /kbt hear argument on it. This Court previously ruled on this precise issue and the Fourth District upheld its determination. Wherefore, for the reasons stated above, requests that this Court strike Epstein's Motion for Summary Judgment. > By:/s/ Philip M. Burlington PHILIP M. BURLINGTON Florida Bar No. 285862 > By:/s/ Nichole J. Segal NICHOLE J. SEGAL Florida Bar No. 41232 #### SERVICE LIST Epstein v. Rothstein, Case No. 502009CA040800XXXXMB W. Chester ....Esq. W. CHESTER, JR., P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach, FL 33401 (561) 655-4777 wcblaw@aol.com wcblawasst®grnail.com Attorneys for Jeffrey Epstein Fred Haddad, Esq. FRED HADDAD, P.A. 1 Financial Plaza, Ste. 2612 Fort Lauderdale, FL 33301 (954) 467-6767 haddadfm@aol.com fred®fredhaddadlaw.com dee@fredhaddadlaw.com Attorneys for Jeffrey Epstein Mark Nurik, Esq. LAW OFFICES OF MARC S. 1 E. Broward Blvd., Ste. 700 Fort Lauderdale, FL 33301 (954) 745-5849 marc@nuriklaw.com Attorneys for Scott Ro Jack Goldberger, Esq. ATTERBURY, GOLDBERGER & WEISS, P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach, FL 33401 (561) 659-8300 jgoldberger@agwpa.co smahoney@agwpa.co Attorneys for Jeffrey Tonja Haddad le an, Esq. TONJA H •'A .A. 5315 S t., Ste. 301 Fort, FL 33301 23 jahaddad.com onjahaddad.coin meys for Jeffrey Epstein J. Esq. JAFFE, WEISSING, FISTOS & LEHRMAN, P.L. 425 N. Andrews Ave., Ste. 2 Fort Lauderdale, FL 33301 (954) 524-2820 staff.efile@pathtojustice.com brad@pathtojustice.com #### IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502009CA040800XXXXMBAG JEFFREY EPSTEIN, -vs Plaintiff, COPY SCOTT ROTHSTEIN,.individually, and J. , individually, CO AS Defendants. # TRANSC A OF HEARING DATE TAXER. ay, January 27, 2014 T1ME: PLACE: aim Beach County Courthouse 205 N. Dixie Highway 0 p.m. - 4:23 p.m. Courtroom 9C West Palm Beach, FL 33401 BEFORE: Donald Hafele, Circuit Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were stenographically reported by: > Robyn Maxwell, RPR, FPR, CLR Realtime Systems Administrator www.phippsreporting.com 888 811-3408 #### 1 APPEARANCES: 3 On behalf of the Plaintiff: W. CHESTER JR., P.A. 4 250 South Australian Avenue Suite 1400 5 West Palm Beach, FL 33401 561.655.4777 6 BY: W. CHESTER 'Ilia JR., ESQUIRE wcblaw@aol.com 250 South Australian Avenue (:) 44 8 ATTERBURY, GOLDBERGER & WEISS, PA 9 Suite 1400 West Palm Beach, FL 33401 10 561.659.8300 BY: JACK A. GOLDBERGER, jgoldberger@agwpa.com\\ TONJA HADDAD, PA 13 315 SE 7th Stre Suite 301 14 Fort LauderdtQe YL 33301 954.467.1 15 BY: TONJ COLEMAN, ESQUIRE tonja@t njati ddad.com On al of J. 18 -ARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 19O2r39 Palm Beach Lakes Boulevard ldest Palm Beach, FL 33409 561.686.6300 2O BY: JACK SCAROLA, ESQUIRE JSX@searcylaw.com 21 BY: WILLIAM B. IIII, ESQUIRE Wbk@searcylaw.com 1 Thereupon, 2 the following proceedings began at 3:00 p.m.: 3 THE COURT: Good afternoon, everybody. 4 Thank you so much. Have a seat. Welcome. 5 MR. Good afternoon, Your Honor. 6 THE COURT: i had the opportunity. tO read 7 the binder and the materials sent to n9 by" 8 respective counsel. I don't thi th 'case should 9 take two hours. C. 10 MR. : No. ) 11 THE COURT: So A(;:?going to ask you to 12 do is kindly tail arguments to one-half 13 hour apiece. hZ movant may split up the time 14 to save so mom. is for rebuttal. And I think 15 that sh4uad ore than adequately deal with the 16 matt 17 I 18 19 e4::: 1 the vs. Board Of Education and gave 20 minutes a side. So if that can be done in that 20 amount of time, I think we can take care of this. think the United States Supreme Court 21' e k And, of course, you all realize -- and I 22 don't think this has anything whatsoever to do 23 with the matter, but I should let you know that I 24 25 handled the state claims that involved Mr. Epstein when I was in Division B. So I have a significant 1. amount of familiarity with the claims that were 2 made. However, until I met with Judge 3 involving this case, I had no knowledge whatsoever 4 that a separate and independent action had been 5 brought by Mr. Epstein against the Rothstein 7 just to want let you know, as you pb ly already 8 did already know, that I handled =cases I 9 believe to their conclusion, or near the time 10 that I left that divisio years ago or so. entities and Mr. So to that e nt, I 6 19 11 Okay. So are y addad? 12 MS. HADDAD:Ae r THE . i you be arguing on behalf 14 Mr. Epstei 15 : No, Judge. I don't have -- 16 Mr. rew will be arguing on our behalf because, 17 ou can hear, I have a cold. 18 THE COURT: All right. A S Mr. Scarola, did you want to say something? 20 N.-) MR. SCAROLA. I did, Your Honor. I just 21 wanted to clarify one matter which I believe to be 22 of some significance. 23 THE COURT: Sure. Of course. 24 MR. SCAROLA: And that is Your Honor 25 referenced a claim against the Rothstein entities 1 and that is not the case. 2 3 THE COURT: It was just Rothstein individually? 4 5 6 7 8 9 MR. SCAROLA: It was just against Mr. Rothstein individually.' That claim has nearer A really been defended and -- against Mr dwards. And the focus of these motions is o on Mr. ' claims for abuse of s and malicious prosecution. 10 11 THE COURT: The la 4 knew. My apologies for misstating the n defendants involved. 12 MR. SCAROLA ology necessary, sir. 13 14 15 THE COUX, Sw4 only defendants involved and they ha been voluntarily dismissed withou a ice; is that accurate? 16 17 18 19 (2, LA\* There was a voluntary missal of the initial claims brought against tor M, that's correct, sir, on the eve of summary judgment hearing. 20 21 0 THE COURT: I remember that being written in your papers. 22 MR. SCAROLA: Yes, sir. 23 24 THE COURT: So is Epstein's claim against Rothstein still viable at this juncture? 25 MS. HADDAD: Yes, Your Honor, it is. 1 TEE COURT: So the dismissed case without 2 prejudice was to -- was as to Mr. only. 3 4 5 MR. SCARQLA. The claims against LM, one of victims of Mr. Epstein's conduct, those claims are also dismissed. 6 7 THE COURT: Okay. Thank you clarification. I much appreciate it fortOgl 8 Mr. 9 MR. : Yes, sir. ell first of all, 10 Your. Honor, I'm Chester appearing on behalf 11 of Jeffrey Epstein. 12 We have bef e today a motion for 13 summary judgme 1 on behalf Mr. Epstein with 14 regard to un rclaim that was filed by 15 Mr. Edw he case is currently set before 16 Your on, specially set I might say, for a 17 18 ee-week or proposed three-week trial, and it is c rently set for May the 6th of this year. 19 20 21 22 by counsel for Mr. there is a statement or 23 interview that is with a young lady by the name of 24 . Now, I don't know whether you 25 have had an opportunity to read it or not. One thing that I did want to talk to the Court about before going into the procedural history is in the package that was provided to you 1 TEE COURT: I didn't. I saw the reference 2 to . Who is she? 3 MR. 4 victim of Mr. Epstein. There was an interview 5 taken of her by Mr. Scarola and I believe 6 Mr. There's a transcript of t a 7 interview which is neither sworn to ev n 8 signed. It's something that coul e used for 9 any purpose in the trial of t s m tter, even for 10 impeachment. So if Your 440 has not read it, I 11 won't go into it. was an alleged 12 THE COURT: o ave not read it. I just 13 saw the name ;Oq N. > 14 several di elltroccasions, so that's all I know. 15 And as 16 rela bandied tell, I didn't know her p to the case. about on 17 18 19 20 21 22 23 24 25 mec : Okay. Your Honor, the ?Syp liZedural IY history here is there were a number of claims brought by alleged victims of Mr. Epstein. O There were a number of different attorneys that were involved. And a number of different cases were filed both in federal court and in state court on behalf of these alleged victims. The cases proceeded, as you've said, some of them were before you. They have all now -- per my 9 The -- 10 D . : Judge, 11 your question. I'm n what victim's case 12 that's referencin . - all of the cases - ay, in response to 13 THE CO : s was a federal statutory -- 14 MR. G: -- 15 : -- that Mr. indicates 16 pro bono on behalf of two of the 17 leged victims. 18 MR. : You're correct. 19 THE COURT: In the Epstein matters. 20 MR. : That's correct. Sorry for the 21 interruption. 22 THE COURT: That's okay. 23 MR. : During the course of those 24 cases, there was some rather unusual discovery 25 that was taking place. And it was learned, and I victim's case that's going on in the federal 3 THE COURT: Mr. at his latest 4 deposition indicated that there's still the 5 6 court. 1 information, they have now all concluded although 2 there may still be some investigations. 7 MR. : Nothing has 8 for a quite some period happ,4 . that of time • 1 2 3 4 5 I'll get into this towards the end of my presentation, but there were a number of things that were learned by Mr. Epstein in and around November of 2009 -- November/December 2309. He filed a lawsuit against Mr. Rothstein, 6 Mr. , and LM who is one of the a d 7 victims. One of the counts in that f 8 malicious -- I believe it's -- h .ad abuse 9 of process along with some of r c unts. In response to the laint, Mr. Scarola on behalf of Mr. Edwa d a counterclaim. That counterclaim rough several amendments, 13 but the fourth m~d i counterclaim speaks to two 14 causes of -ion that is abuse of process and 15 malicio s r ecution. So those are what we're 16 here to k about today, is abuse of process and 11 18 l tlicious prosecution as it relates to i re M Epstein's original claim against Mr. . 19 In response to Mr. 29÷P there were a number of affirmative defenses 21 raised, but one of them that was raised was the 22 23 24 25 44S y litigation privilege. And we are here today to talk with you about the litigation privilege and its current state as espoused by the Florida Supreme Court and the Third District Court Of ' counterclaim, 1 Appeals and, in fact, the Fourth District Court Of 2 Appeals. 3 THE COURT: One thing I wanted to interrupt 4 you on is this Wolfe case and its current status 5 and the -- I'll call the -- I'll call.it the 6 side to make things be easier. t the 7 side has raised the issue t app rently 8 this Wolfe case is still in rehe in d 9 therefore of no precedential lue to the court. 10 Mr. , did you w o speak briefly to 11 that? 12 MR. > She submitted a notice of 13 correction to sser the other day who stood 14 in for you th page extension. 15 t: Right. 16 MR. RING: We gave her that and asked her 17 turn that over to you. 18 THE COURT: I didn't get it. 19 MR. : Okay. What's actually happened 20 O is -- and it's confusing because Westlaw's whole 21 history on this, and Mr. also understands this because he ran into the same problem. My reading of the history that Westlaw contains indicates that the mandate has issued but they still use the caveat "this is a Westlaw 1 citation only, it's not in the final published 2 format, and therefore it can be changed at any 3 time." But with the issuance of the mandate, that 4 5 signifies that it is -- the rehearing is denied and it is now final. 6 7 THE COURT: Okay. Thank you for . I did not know that until right now. 8 MR. : So let's get •Wolfe 9 case. That's where we're hea d n xt. And really 10 there's a trilogy of casef here's the Levin 11 case, the Echevarria 12 to pronouncing th ctly, and the Wolfe case. 13 All of them de "SISt litigation privilege which 14 dates back 19 . And I think that we are all 15 most f 'a with the standard that defamation 16 case i 7E he, quote, alleged defamation occurred 17 ring the course of a judicial proceeding would 18 b protected by the litigation privilege and no 19 'action could be taken on them. I'm somewhere close 20 Over the years different courts looked at 21 it. There was an attempt -- there were attempts 22 made to determine how far and to which causes of 23 action the litigation privilege would apply. 24 The seminal case now for us, I guess, now 25 is Levin. This was Levin, Mabie suing. It was actually a tortious interference case. But the 2 case went up to the Florida Supreme Court. And 3 the issue before them was how far is this 4 privilege or to what causes of action should this 5 privilege apply? 6 And the Levin court came out and a d that 7 it would apply to all torts, include dc he one 8 that was before them which was to 9 interference. And that the standard for 10 11 12 determining whether the a complained of would be whether that actio e relation to the proceeding, the j receding. 13 Later or1454S, v stion came up, Well, should 14 that -- it' 111N- we've already determined that 15 it appl t 11 torts. And so, does it also 16 17 18 also in front of the Florida Supreme Court, 19 riN some 13 or 14 years after Levin, and they found, 20 yes, that it does apply to, essentially, all civil 21 judicial proceedings. 9441L appl atutory violations or cases involving tutory violations? And that's the Echevarria 22 Now, the issues before us are the 23 litigation privilege as it applies to abuse of 24 process and malicious prosecution. That was all 25 brought to a head in the Wolfe case. In the Wolfe 1 2 3 case, the Third District Court Of Appeal was faced with the issue of do the -- does the litigation privilege apply in those two causes of action. 4 5 6 7 8 The answer was yes. The Wolfe case or the Wolfe court went back and essentially referred back to and analyzed the Levin and Eche a ria cases. And that's why I say it's k' 1).f trilogy. 9 10 11 12 And in the Wolfe case i was determined that this was not -- not was it privileged for any actions that ated to the judicial process, it was a 4.s e privilege. 13 14 15 16 17 18 19 Now, inigN we have exactly the same issue. We' ' gOtra complaint that was filed that is alle i he counterclaim to be malicious 4.. pros We also have the pleadings, ything that was filed after the initiation of t judicial pleading -- judicial process. It's O 4.Sv claimed to be an abuse of process. 20 21 22 23 24 25 In fact, in answers to interrogatories and all of the discovery that has been had from the side, they have said that the filing of the complaint was in itself it was untrue, the information that was there was untrue; Epstein should have known it was untrue, and that he had a 13 14 15 16 17 11 Then going back ' en as they related 12 to the Levin case Mchevarria case, they S said anything iSI w related to the judicial process -- co ry, depositions, r s 44 ie interro -- as long as they were related, they werq rotected by -- the participants were otected by the litigation privilege. 18 19 20 They -- in the trilogy, and I forget which one of the cases it was, but they go even further O and clarify that the claim "a bad motive" is 21 really irrelevant to these causes of action when 22 you were talking about the litigation privilege. 23 The -- let me see, where am I here? 1 bad purpose in filing which was to intimidate or 2 extort Mr. and his client. 3 That's been put to bed in the Wolfe case 4 because the litigation privilege absolutely 5 6 7 8 9 10 applies and is absolute. The Wolfe case states that they could think or the. Wolfe c u t stated they could think of no action that w b more related to the judicial process t filing of a complaint. So a complaint, ling of the complaint is privileged. 24 In the Wolfe case it was a motion for .25 judgment on the pleadings. In some of these other 1 cases it was motion for summary judgment. And in 2 all of these cases they found that the litigation 3 privilege barred the causes of action that 'were 4 being claimed. The argument has been made by the other 6 sides that because Mr. -- or, zetse me, 7 because Mr. Epstein had no reason to 1 8 original complaint that he filed somehow or 9 another the litigation privil ould not apply. 10 And that because he shou have filed the 11 original complaint, 12 thereafter was an •f process. g that he did 13 We would to Your Honor that's 14 the standa as poused by the Third District 15 Court 0 1, the Fourth District Court Of 16 Appe 1, the Florida Supreme Court. The 17 nBard is: Did the action have some relation to 18 t judicial proceeding? not 19 rA S THE COURT: I think at least in trying to 20 distinguish Wolfe, but at the same time taking a 21 more global approach, the ' side is 22 suggesting that timing and the length of time 23 subsequent to the settlement of the pending claims 24 and his continuing to prosecute the suit more so 25 on the malicious prosecution side would distance 1 2 3 itself from Wolfe, because in Wolfe I believe the court made clear that it was a brief prosecution of the action and was not protracted. How do you 4 respond to that concern? 5 MR. : I respond by quoting the 6 Florida Supreme Court, which is: If th ction -- 7 and whether they're talking one act 20 actions 8 or 40 actions, if the action is r to the 9 judicial preceding, then you h e p litigation 10 privilege. 11 THE COURT: And 12 forever in your m cn i go on essentially 13 14 forever be 15 particu2ci i.n the Levin case, about protections 16 that 17 18 19 2,91lek 21 22 23 24 MR. BREW :RN, on't know that it can go on s:%\$lso they were talking, be afforded to litigants. But those otections would not be through a cause of action V malicious prosecution or abuse of process; rather, it would be through the court with contempt proceedings, perhaps. It would be through the Florida Bar for, you know, inappropriate actions taken by an attorney. It could be perjury for a litigant which would be handled by the state. 25 THE COURT: I Lhink perjury. Not if 1 2 3 it's guised in the litigation privilege, but perhaps you're right that it could be met with 57.105 standards. L 5 6 7 8 MR. : 57.105 was the one I was just getting ready to get to, Your Honor. So there are protections against what you're talking a out, but again, I have to go back to what dices S preme Court tell us. 9 10 11 12 13 14 15 16 I did want to touch also on Another point that was raised in our mo Complaint, at least in o '%s malicious prosecution, has ecause there is probable cause demonstr Mr. Epstein to have filed which is that the or at leas eve eason to believe that he could "1. 7..., file -- p ly file the claim that he -- that he did 17 18 THE COURT: Is probable cause always a 1;:illY 19 20 21 22 23 24 25 !Sy1 al -- purely legal determination? RR. : No. No. If there are 0 questions of fact that are involved with the probable cause, the questions of fact are for the determination of the jury. The jury -- the judge then takes those determinations of the jury to make a finding of probable cause. But it is in the -- at the end of the day the court -- the 1 issue of probable cause is a matter of law for 2 determination by the court. 3 But the threshold for establishing' probable cause in a civil action is really rather low. 5 6 7 8 the claim. Because it is whether the defendant could have A reasonable -- what the -- what the defe nt could have reasonably believed at the timR 44 oyas erting 9 10 11 So I want to go briefly hro O gh what Mr. Epstein knew or was a ble to him at the time November/Decembe 9. 12 13 14 15 16 17 18 19 ''Sy Rothstein firm against Mr. Epstein. First, undie\ 14 THE T: I just want to give you a 15 •ten-mi14q., rning now, but -- 16 17 THE COURT: Don't these cases, though, 18 t ch us that essentially no matter how repugnant 19 the judicial conduct process -- the conduct during 20 O the judicial proceedings, I should say, no matter 21 y how far repugnant the conduct during the judicial 22 proceedings may be, as long as they are within the 23 judicial proceeding there is this immunity that 24 exists, particularly for an abuse of process 25 claim? ING: All right. 1 2 3 4 5 The malicious prosecution claim I am more on the fence. But on, as far as the abuse of process claim is concerned, and there's that balancing that is taken into account that I believe it's talked about primarily in the Levin 6 case about the full disclosure within tJiellawsuit 7 venue versus someone facing liabilir4 eca se of 8 what may be alleged in a complai 9 dcposition or something along 10 long as it's within the 11 again, no matter how 13 that would ex 3.4 12 not this immunity 14 claim? An ell e, if not, why not, please. east to the ring a lines. As al proceeding, and, t it may be, is there d by the appellate courts abuse of process 15 . : We acknowledged in the memo that 16 both in G Third and the Fourth -- in the Fourth 17 j the American National Title Case, both applied 18 t doctrine to the abuse of process claim. 212 9 The full import of how far that will go 0:5 rbecause each of those cases again involved 21 lawyers. But the question is: Will that in the 22 future -- because, again, that tort, abuse of 23 process, has been around a long time. But the 24 American National case was 1999. And also the 25 LatAm case, which was a precursor to Wolfe on that 1 2 3 issue, the litigation privilege and the abuse as it applied to the abuse of process, that case was cited by Wolfe. 4 5 6 7 B 9 So you had -- you had some rational prongs that Wolfe could latch onto in terms of the issue of the application of litigation privil to abuse of process. And we would dis is it on -- we would distinguish those = ased on the fact that lawyers only wed involved. 10 We would also main hat/ that -- 11 12 13 14 15 16 THE COURT: , what it comes down to is, t lawyers know better than the liti \\t t emselves? And, again, if -- I would be ;bit ore receptive to your argument if I w stein filed these documents pro cause he is at least, you know, to a 17 ree an educated individual. He has a 18 b kground, I believe, in finance. So, you know, 19 there could be those facts that could be developed 29 O 6, 21 within his educational purview, within his experience purview, within his own personal vendettas that he may have with Mr. 23 But, again, shouldn't lawyers know better? 24 The lawyers are continuing this plight on behalf 25 their client. Why is Epstein the one who is the 1 focal point of this abuse of process claim? 2 3 4 5 6 7 MR. : And, again, I would go back to the role that lawyers have in walking that ethical line, walking that legal line, walking the line where they have to advance their client's cause as best they can. And when it co e to that point where they recognize that, no se claims 8 are false, there's no basis for /'\` oceed, 9 then they get out. 10 And now, as I'm adv two firms did that 11 before. The last fi n and dropped 12 their -- dropped tjtse Q aims on the eve of 13 summary judgme 14 So o as -- I shouldn't say that. 15 To -- 'Edwards in this particular case we 16 see cl a distinction. And that distinction is 17 you don't go after the lawyers for these claims if 18 that there is a -- that they have 19 acted within the bounds of arguably of their 29÷9 ethical responsibilities and legal 21 responsibilities to their client. They have to 22 zealously advocate for him. But that doesn't 23 excuse him. That doesn't excuse an individual who 24 over all those years were committing those heinous 44 °S ydyt recognize 25 acts against not only Mr. ' clients, but many, many others. THE COURT: But those heinous acts as have you communicated, and I won't take a position one 4 way or the other on the acts, but I'm just picking 5 up on what you just said, but they have nothing to do with this case itself on the claims process and malicious prosecution. simply don't. I mean, you may su o me that 9 they have something to do wit the from the 10 standpoint of Epstein's isfaction with the 11 settlement or whateve ve been attributed to 12 that, but they re e nothing to do with 13 these claims.eSsv 14 MR. : fell, with the litigation 15 privile a '11 acknowledge other than what I 16 have y argued the situation was different 1 4 4:in' 18 aXrearance r by the lawyer and Judge, it was 19 Judge Shepherd, in his concurring opinion, didn't in, for example, Wolfe he had the brief embrace that. What he said was, Look, there's two elements, and malicious prosecution doesn't even 22 exist here. Let's get rid of it. 2 23 THE COURT: Right. 24 MR. : I would just suggest that the 25 facts that I have outlined, and which we have in 1 2 3 4 5 all of the materials that we submi7ted to you, all of those facts are -- they -- they do go to the other issues that you aren't addressing here; the factual issues on good faith and the factual issues on bona fide termination. 6 7 And so with that reservation, I w u d suggest that the only other reason the e facts 8 are so significant is because an sitting -- 9 court sitting back and lookin at he landscape 10 here would have to ask t ves, look, in light 11 of -- for example, Ju er's opinion, and the Sist 12 reasons why we ha ions prosecution claims 13 and why they w V 14 just like 1.SAnd I'm getting back to the 15 litiga o ilege and malicious prosecution. vive is because of something 16 ily have ended my comments on that but 17 ust wanted to address your concerns about why 18 ASa of these facts might impact. TEE COURT: No. Go right ahead. 21 234 9 %asi MR. : And those facts impact because what it does is it cries out and it shows you that 22 this is why a malicious prosecution claim should 23 survive the litigation privilege. When you have a 24 torrent of evidence that he's comitted these acts 25 and that he knows that the attorney for those 1 clients has acted appropriately and at every stage 2 he was involved before he ever got associated -- 3 before Mr. ever got associated with RRA 4 and he continued them on after he did it. 5 He does pro bono work for clients, as you 6 know, in the federal case. He knows th 7 Epstein knows that. And that's why fa is are 8 important to malicious prosecutio s because, 9 as Judge Sasser says, the ide her, the concept 10 here on a malicious pros- n claim is, this 11 is -- this is the kin s is why the 12 privilege shouldn because the vexatious 13 prosecution of a is something that the law 14 will recog . 15 d v ything that we have put into the 16 reco a t Epstein's involvement 17 t of that lawsuit was a pretext. And that he 18 ha every evil motive in the world to pursue these 19 claims and continue those claims after Mr. 20 O settled those claims -- Mr. Epstein settled those 21 claims. shows that this 22 So my only other comments is to try to 23 address your concerns vis-a-vis the issue of abuse 24 of process. That's more difficult. It's more 25 difficult because we have the Fourth's opinion and 1 the Third's precursor opinion, so it -- it -- it clearly is problematic. 3 We our -- our position on it is essentially 4 this: Judge Corrigan in his opinion in the case 5 that I cited says the privilege shouldn't apply 6 either. Then you have what we submit r 7 egregious facts which should -- inc 'ng a 8. settlement and he continued pros afterwards, which we submit i is going to be 10 the light's going to go nd say, Whoa, wait a 11 minute, we can't -- count this the 12 application of pr l e in the context of these 13 facts. Your are legitimate and well 14 expressed. o allltter how egregious the facts, 15 perhap t on't make a difference to the 16 app ca n of the privilege to -- to an abuse of 17 cess claim, perhaps. 18 But we submit for the reasons that we have 19 identified that the litigation privilege should 20 O equally not apply to the abuse of process claim 2 1 for those reasons. 22 THE COURT: Malicious prosecution. 23 MR. : Okay. Well, certainly to 24 malicious prosecution. But also your last 25 concern -- 1 2 THE COURT: Your position is I think it does apply to abuse of process. 3 MR. • Right. 4 5 6 7 MR. : But certainly not malicious prosecution 8 the abuse of process claim. for the reasons that are pr by Judge Sasser and o h rs. And with regard to the reasons I've ju 444ltpr ssed to 9 And make sure I didn't iss anything -- 10 THE COURT: Three LiQ.,es to wrap up. 11 MR. SCAROLA: going to use two of 12 them, if I may, 13 THE CO objection? 14 Yes, Your Honor: They're not 15 allows This is not, you know, a 16 reb .n their part. 17 COURT: I agree. THE 18 i,pr : So they're not allowed to 19 MR. split it. 20 A MR. SCAROLA: May I have just a moment? 21 22 But I do believe that protocol would dictate only 23 one attorney speak to the issues. THE COURT: Absolutely. Take your time. 24 MR. : Right. 25 THE COURT: Thank you. 1 I have Judge Sasser's opinion. I have it 2 right here or, I should say, her order as opposed 3 to the opinion. 4 MR. : All right. You have that. And 5 just to wrap up then, Judge, with regard to the 6 comments in Levin about the other -- th 7 availability of other remedies that -- that 8 would exist against attorneys if you know, 9 if the privilege were not app ed o the attorneys 10 as in Levin, there are a d that the court 11 has. Much more diffi n it comes to an 12 individual. And ink there was one other 13 comment made. mg just double-check my notes. 14 Coun ha referenced the abuse of process 15 claim a d h her the facts support the abuse of 16 proc . We submit lop5do. We've satisfied from that standpoint all of the elements. 1.! 18 19 20 abuse of process claim based upon the pursuit of 21 all of these actions that were taken during the 22 course of the proceedings. And we submit that 23 under the circumstances of this case, where this 24 claim was commenced against Mr. during the 25 course of his prosecution of the underlying claims 'or They -- they make here is their -- and the last comment I'll focus was you can't have an 44°S r 0 1 2 3 4 and while multiple other claims were being pursued against him, that under those circumstances the abuse of process claim does survive a challenge to whether or not we have satisfied the elements. 5 The process that's involved in the abuse of 6 process claim is the lawsuit. The subs q ent 7 actions that all of the cases talk a e, in 8 our case, the pursuit of all of t forts 9 during the course of the o tha case. And 10 they were all done for a rior motive. We've 11 satisfied those eleme 4 12 I don't hav e to get into all of 13 14 15 16 1.7 18 19 20 21 22 couldn't really do that. So I apologize. what we ha 11 ::!,:g to the statement of the facts. give you the essence of undisp mate alg 7felating to the filing of our motion for itive damages which was granted. We gave you ti depositions because, unfortunately, to really 44S r 0 grasp the entire background on this, you almost have to read the entire depos. I tried highlighting and pulling them out for you, but I ' affidavit, the 23 THE COURT: No, that's okay. 24 25 MR. : But that would end my argument. I appreciate your courtesy. fi 1 2 THE COURT: Thank you and Mr. for your -- 3 MR. : A few moments, Your Honor? 4 THE COURT: Sure. 5 6 7 MR. : I forgot to ask you if I could address you from the chair here rather h n the podium. 8 THE COURT: That's fine. 9 No, I wanted to thank Mr( and 10 Mr. for their init' rgumcnts, and I 11 appreciate very much essional. 12 13 14 15 16 MR. onor, you seemed to be a t little bit mbr Si ed with regard to the Ilic 7l e malicious ec ion aspects here. :'d like to N) point o C o ou that in the case, the Wolfe case, spec ic. y they stated "because the law is clear 17 t the litigation privilege applies to abuse of 18 p cess, we affirm the trial court's order 19 O granting judgment on the pleadings in favor of the 'ite, 20 defendants below as to that cause of acticn. 21 Although the law is not as clear whether the 22 litigation privilege also applies for the cause of 23 action for malicious prosecution, we conclude that 24 it does and affirm the trial court's order finding 25 that the litigation privilege also applies to a 1 cause of action for malicious prosecution." 2 That was actually the issue before them 3 because it had already been determined that the 4 litigation privilege applied to the abuse of 5 process in both the Third and the Fourth District 6 Courts of Appeal. That's admitted by 7 the counterclaim in their motion in si ion. 8 I wanted to speak about thi that the 9 worst -- the actions were of ice. Epstein and/or 10 his attorneys that someho s another there's a 11 sliding scale. And i '•rked longer on the 12 case, or if you p n re pleadings or whatever, 13 that somehowo a t rthat would have an effect. 14 That' of omething that I have seen 15 anyway n trilogy of cases. In fact, what is 16 said in trilogy of cases is if the litigation 17 18 pfielege applies, Asolute. it's an absolute privilege. 19 20 to say that to indicate that the -- that malicious 21 prosecution can still survive and exist. And, in 22 fact, the Olson case, which was a case in which 23 three ladies accused this guy of stalking, filed a 24 false police report. The guy got arrested. 25 The Olson vs. was mentioned to you Actually, I think -- I'm not sure if he went to 1 2 3 4 trial, but he was able to establish that he was six miles away at the time of the alleged stalking. And the ladies just lied to get him in trouble. 5 The Olson case was addressed in the Wolfe 6 case, and it said, Wait a minute, that s -- a 7 cause of action for malicious prose on ill 8 stand there because that was an• hat was 9 taken outside of the judicial roc ss. 10 THE COURT: And th and that's, you 11 know, where, you know sk Mr. to 12 briefly address t ell. But, you know, the 13 dilemma the co to here is the language that is 14 reaffirmed ' Wo e and 15 Echevar i m tter from the Florida Supreme Court. 16 And oted and say that Echevarria reaffirmed 17 18 s ing "the proposition" -- that, quote, absolute 19 20 21 22 23 24 25 it ilr e proposition extracted from the -- and I'm using my own words by 0 immunity must be afforded to any act occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding. And they clarify that although not all statements made outside of the formal judicial process are protected by the litigation privilege, an absolute immunity applies to conduct occurring during the 20 21 22 23 24 25 1.1 18 hom as an officer of the Court that they are O 19 :laiming Epstein did in either the abuse of THE COURT: Is there anything that you can process or the malicious prosecution claim -- and as f said, I'm more concerned with the malicious prosecution claim -- that Epstein did outside of the judicial proceedings? Is there anything alleged here that he did outside of the judicial proceeding, such as -- I saw in the damages 1 course of the proceedings. 2 So that seems to tell me that if Epstein is 3 filing a complaint, if Epstein is seeking 4 discovery, if Epstein is making obnoxious 5 allegations against -- and I'm, again, not 6 taking a position one side or the other hat's 7 why I'm using the word "if" to pref 11 of my 8 commentary, as long as it has so ion to the 9 proceeding -- it is afforded sol to immunity. 10 If you're sitting shoes, Mr. 11 or better yet sitting ' shoes, what 12 would be his best t to defeat your motion 1.3 on malicious p s .0 on? 14 I don't know that they have 15 one, Yo r, in light of Wolfe. Nct at this 16 leve 1 portion of the argument made by the side, 2 and I think it may have had some relation to 3 Judge questions about damages relating to 4 Mr. 5 some --that -- that Mr. 6 some threat to his or -- to him and his ily. 7 Has there been any such threats mad yo r 8 knowledge by Mr. Epstein that wo e gone to 9 him or his family? -- but I saw that there were felt there was 10 MR. : Your I I'm late to the 11 game. I was not a pa t or counsel here 12 until, II, probab or four months ago. I 13 have done my b t -o amiliarize myself in what 14 has gone o rio, but it's voluminous. And so I 15 can't s e you that I've read everything or 16 seen hing. I, however, have no knowledge of 17 18 :?,1144,V Epstein making any threats to towards 19 (^4.5r THE COURT: I'm just using that as an example. 24 1w) 21 22 23 MR. : Well, I don't have any knowledge of him making threats to Mr. or to his family. '24 25 THE COURT: Anything outside of the judicial proceeding as potentially or allegedly 1 obnoxious? And as Mr. brought out earlier 2 the allegations being horrifying, egregious, no 3 matter how you might identify those allegations 4 that were quickly withdrawn, anything that you're 3 aware of that went on outside of the judicial 6 process that is being alleged here? 7 8 MR. : Not that is beinAegd here, Your Honor, no. 9 10 11 12 13 0 THE COURT: Mr. an hi.g that's being alleged here that goes o spectrum that I have o the record that has its genesis in Ec r and was quoted by the Wolfe Third DA i Sc oust of Appeal opinion? of the broad 14 MR. c here's nothing alleged. 15 16 17 18 19 20 or the abuse of process claim. It's not 21 specifically set forth in the pleadings. that forms the basis 0 ically alleged !Sy 1.4 ar t Mr. Edw ' Zistimony, though, was that he was bein st ed by an investigator which gave him additional concern. tscif ill'? But that's not as a matter that, you know, for the malicious prosecution 22 THR COURT: How do I get around this 23 Echevarria language? Again,. I recognize what's 24 gone on here, but personal empathy doesn't have 25 any part in a courtroom. It just doesn't and 1 2 3 4 5 shouldn't. I ruled in your favor and I've ruled against you. I've ruled in Mr. Goldberger's favor; I've ruled against him. I've ruled in ' claims and contentions; I've favor of Mr. ruled against him. 6 7 8 9 10 during the course of a ju• 1 proceeding, so, 11 long as the act has s tion to the 12 proceeding, is sub e t absolute immunity. from the reaffirmation of the Flori Court's blanket statement But I'm just having difficulty co i g away pr me here th nt extra judicial activity, everything hat is occurring 14 THE : Absolutely. 13 MR. Ill!i :S4 y may? 15 . : Levin -- neither Levin nor 16 Echele dealt with the malicious prosecution 17 nn, which is really what I'm going to focus on 18 Know. 19 .7- THE COURT: But now I'm dealing with "'" 20 AlelSoL and, again, forgive me for interrupting, but just 21 to make clear the precedential value that I have 22 to ascribe to Wolfe, and as you indicated, the 23 Fourth in its case seems to, at least from the 24 abuse of process part of the matter, align itself 25 with that same side. The Third District Court of 1 Appeal is an appellate court that I must follow 2 unless there's a specific ruling to the contrary 3 by the Fourth District Court of Appeal. And the 4 Third is crystal clear in its analysis. Whether you or I agree with it is not for 6 me to say. But its analysis is abundan clear 7 and it, again, reaffirms the Suprem rt 8 language that talks about where w thin the 9 judicial proceeding, as repu nt s it may be, as 10 long as it bears relatio o relation, just let 11 this be the rather br uage utilized by the 12 Supreme Court of absent extrajudicial 13 process -- ext j idial actions, better stated, 14 I'm left w th legal analysis while cogent, 15 it's c ile short it's clear. 16 17 18 19 20 A 21 22 23 But that is why all of the (Sy gest that Levin nor Echevarria would apply to a O malicious prosecution claim because it is distinctly different from the nature of -- just as Judge Sasser says, "It's not something that is going on during the course of proceedings. It's the proceeding itself." itions that I have articulated that would Is N ' Now that's what Wolfe -- Wolfe takes the position otherwise. It says, Well, that -- that 1 clearly falls within the privilege. 2 3 4 5 6 7 8 9 TAR COURT: And Wolfe is the binding precedent. With all due respect to my suite mate, she's not. And, you know, as a fellow circuit court judge, again, her opinion is meticulous and well-written, but it flies in the face \` o S precedential value here, and that is e Wt'lfe case that ties the bow, so to sp malicious prosecution case. ound the 10 Where there may n 11 to hang one's hat on 12 13 14 15 16 take from us, in my view, from a trial 17 18 19 before something obable cause issue, as t I described beforI . ly a factual issue. Whether the c d in a bona fide termination A'slic, in favor o r. , subject certainly to factuajJr v w. But that -- but the elements are urt's decision-making and we're left with the g bal analysis that was rendered by the Third District Court Of Appeal. 20 And the bow is tied to include malicious 21 prosecution cases as long as those actions, as 22 alleged and conceded by you, and I appreciate 23 incredibly the concession, but as conceded that 24 all of the allegations contained in the operative 25 Fourth Amended Complaint relate to the judicial 1 proceeding in some form. 2 MR. : If I may, Judge, just a final conclusionary remark? 4 THE COURT: Absolutely. Please. . 5 MR. 6 impact of Olson, which even though it not 7 deal with a post-civil complaint is suc as you 8 have here, the language of the o s the 9 litigation privilege does not ppl to malicious 10 prosecution. There is -- ubmit that that sets 11 forth at least a conf that issue that 12 allows you to the all of the issues that i 13 discussed. I would harken back to the 14 THE ( S Let me look at that Olson case 15 apecif a please. 16 MR : I have a COpy here if you 17 Id like, Your Honor. 18 THE COURT: No. You have both done an 19 excellent job in tabbing all of these materials, 20 O and I want to again compliment both sides on their 21 y presentations and their performance as well as well presentations. It's extremely gratifying, especially when I've had I think 14 hearings in addition to the 8:45s today to see the kind of advocacy that I'm seeing here at this hearing. 1 2 But I will take a quick look at that Tab 16 that I have. Thank you. 3 4 5 6 7 8 9 11 12 13 14 15 The Olson case that is cited in, and I've read somewhat quickly, but I believe I've picked up the genesis. And the import of the opinion deals with preliligation statements mad y an individual who is accusing Olson of lki g. And the court distinguished that clai lege from a defamation case that was add ssed in a case 10 called Fridovich vs. Fri, 598 Sold. 65, Florida Supreme Court 92, in which the )gcr Supreme Court was es ed with a certified question of w to law enf eat about another to the, i tion of judicial proceedings. person who makes statements individual prior 16 hat is important here I think in our 17 view of the case since those statements that 18 wire made allegedly by the accuser in Olson were 19 made prior to the instigation of judicial 0 21 2SIve protected by an absolute privilege for liability 22 against defamation, and the court held that 23 defamatory statements voluntarily made by private 24 individuals to the police or to the State's 25 Attorney's Office before institution of criminal proceedings and whether those statements were 1 2 3 4 5 6 charges are presumptively qualifiedly privileged. And such voluntary statements are treated differently than statements made under the State Attorney's investigatory subpoena, which are encompassed within a judicial proceeding and thus are absolutely privileged. 7 So there is that distinguishi 8 characteristic here as well. And i, the 9 issue was mot head on by Wolfel I was not 10 discussed in the Olson ca espectfully, that t 11 can gather here. So b the Third District 12 Court's decisions * e quoting in large part 13 from the FlorAi 14 Echevarria, eAllas here all of the allegations 15 made in o h he abuse of process claim and the 16 mali&us, rosecution claim, as conceded by the 17 18 me Court's decision in ards side, are acts occurring during the course 44 o a judicial proceeding and bear some relation to 19 Sr the proceeding, the Court has no other alternative 2,04 i tes0 than to grant the motion on both counts. 21 MR. : Your Honor, I have prepared an 22 order which I think fairly closely -- it does not 23 have in it about the conceding the points, but it 24 does grant the motion based upon the cases that 25 you have just indicated. TER COURT: I would ask you to kindly go ahead and order the transcript and track the 3 language that I have tried to utilize here 4 distinguishing Olson, as well in following the 5 Supreme Court's directive in Echevarria and the 6 Third District Court of Appeal dictates the 7 Wolfe case. 8 MR. : Yes, Your Hono 9 THE COURT: That's the ••rne of the 10 Court's decision. 11 Again, thank yo a ry, very much for 12 your input and yo ssionalism and your 13 arguments. No n c ld have done a better job on 14 both sides o lank you very much. 15 .BREWER: Thank you, Your Honor. 16 THE COURT: Thank you, Madam Court 17 ISZner. 18 THE COURT REPORTER: Thank you, Your Honor. 19 (Thereupon, the proceedings were concluded 20 O at 4:23 p.m.) 21 22 23 24 25 # 1 COURT CERTIFICATE 4 STATE OF FLORIDA 5 COUNTY OF PALM BEACH ) 8 I, Robyn Maxwell, Register essional 9 Court Reporter, State of Florida at L rge certify that I 10 was authorized to and did stenog cally report the 11 foregoing proceedings and tha hq ranscript is a true 12 and complete record of my, aphic notes. 14 Date hi 9th day of January, 2014. 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40:2 | | accumulated (1) | 54:17 | 24:20 46:17 | and/or (1) | 47:9 50:4 | | 34:5 | additionally (2) | 56:5 | 50:9 | applies (9) | | accurate (2) | 19:18 24:12 | agreed (1) | Angelides (1) | 12:15,23 14:5 | | 5:15 25:22 | address (7) | 36:3 | 29:7 | 21:22 49:17,22 | | | 26:4 27:1 28:8 | ahead (2) | answer (1) | 49:25 50:17 | | 51:25 | 49:14 | 27:22 41:2 | begins (1) | bounds (1) | | ------------------------ | ----------------------- | --------------------- | --------------------- | ---------------------- | | apply (15) | asserting (1) | 43:9,14 58:5 | 20:21 | 41:19 | | 11:23 12:5,7,16 | 18:7 | background (2) | behalf (11) | bow (2) | | 12:20 13:3 | assertion (1) | 40:18 48:19 | 2:3,17 4:13,16 | 57:8,20 | | 15:9 26:7 | 29:17 | bad (2) | 6:10,13 7:23 | [REDACTED] (2) | | 29:19 44:12 | associated (2) | 14:1,20 | 8:16 9:11 | 1:7 2:17 | | 45:5,20 46:2 | 44:2,3 | balancing (1) | 19:15 40:24 | [REDACTED] (48) | | 56:18 58:9 | attempt (1) | 39:4 | believe (14) | 2:3,6 3:5,10 | | appreciate (4) | 11:21 | bandied (1) | 4:9,21 7:5 9:8 | 4:16 6:8,9,10 | | 6:7 48:25 49:11 | attempts (2) | 7:13 | 16:1 17:14 | 7:3,17 8:7,23 | | 57:22 | 11:21 18:21 | bar (5) | 19:7 24:9 33:3 | 10:21 11:8 | | approach (3) | ATTERBUR... | 16:21 22:7 | 35:19 39:5 | 16:5,13 17:4 | | 15:21 36:15,18 | 2:8 | 25:23 28:19 | 40:18 46:22 | 17:19 19:14 | | appropriately ... | attorney (10) | 30:22 | 59:4 | 20:8,11,12,14 | | 44:1 | 16:22 18:17 | BARNHART ... | believed (1) | 20:16,19 22:15 | | arguably (1) | 20:17,21 21:5 | 2:18 | 18:7 | 23:19,20,23 | | 41:19 | 21:8,18 22:13 | barred (5) | beneficial (1) | 32:12 35:22 | | argue (1) | 43:25 46:23 | 15:3 25:13 29:5 | 19:21 | 46:3,14,18 | | 35:5 | attorneys (13) | 29:11 30:2 | best (3) | 49:1,3,5,10,12 | | argued (1) | 7:20 21:1 31:4,5 | bars (1) | 41:6 52:12 | 52:10,14 53:10 | | 42:16 | 31:14,18 32:22 | 25:8 | 53:13 | 53:21 54:7 | | arguing (3) | 34:1 36:23 | based (4) | better (5) | 58:16 60:21 | | 4:13,16 22:16 | 37:17 47:8,9 | 40:8 47:20 | 40:12,23 52:11 | 61:8,15 | | argument (9) | 50:10 | 60:11,24 | 56:13 61:13 | brief (7) | | 15:5 19:25 | Attorney's (2) | baseless (1) | Bill (1) | 16:2 24:17 31:7 | | 32:12 36:11 | 59:25 60:4 | 30:6 | 19:6 | 31:8,14 32:13 | | 37:6 40:14 | attributed (1) | Basic (1) | binder (1) | 42:17 | | 48:24 52:12 | 42:11 | 21:18 | 3:7 | briefly (3) | | 53:1 | Australian (2) | basically (1) | binding (1) | 10:10 18:9 | | arguments (5) | 2:4,8 | 23:13 | 57:2 | 51:12 | | 3:12 29:15,16 | authorized (1) | basis (3) | bit (2) | broad (2) | | 49:10 61:13 | 62:10 | 21:24 41:8 | 40:14 49:13 | 54:10 56:11 | | arrest (1) | availability (1) | 54:19 | blanket (1) | broader (1) | | 26:3 | 47:7 | Beach (8) | 55:8 | 31:9 | | arrested (1) | available (2) | 1:1,16,17 2:5,9 | Board (1) | brought (8) | | 50:24 | 18:10 22:3 | 2:18,19 62:5 | 3:18 | 4:5 5:17 7:19 | | articulate (1) | Avenue (2) | bear (3) | Boca (1) | 12:25 18:18 | | 27:15 | 2:4,8 | 23:11 26:19 | 27:7 | 19:6 32:21 | | articulated (2) | aware (2) | 60:18 | bona (5) | 54:1 | | 29:13 56:17 | 30:15 54:5 | bears (2) | 23:8 24:11,18 | Broward (1) | | ascribe (1) | | 36:13 56:10 | 43:5 57:13 | 19:7 | | 55:22 | B | bed (1) | bono (2) | [REDACTED] (1) | | asked (1) | B (2) | 14:3 | 8:16 44:5 | 3:18 | | 10:16 | 2:21 3:25 | began (1) | bottom (2) | | | aspect (1) | back (10) | 3:2 | 29:2 38:9 | C | | 20:3 | 11:14 13:5,6 | beginning (1) | Boulevard (1) | call (3) | | aspects (1) | 14:11 17:7 | 31:19 | 2:18 | 10:5,5 29:25 | | called (1) | 14:19 15:1,2 | charges (1) | 33:14 35:2,11 | coming (1) | | ------------------ | ------------------------- | ----------------------- | ------------------------ | ---------------------- | | 59:10 | 18:18 23:21,25 | 60:1 | 36:17 38:1,1 | 55:6 | | camera (1) | 24:2 26:10 | Chester (3) | 41:7,12,17 | comitted (1) | | 35:18 | 36:12,14,20 | 2:3,6 6:10 | 42:6,13 43:12 | 43:24 | | Capital (1) | 38:17 39:20 | circuit (4) | 44:8,19,19,20 | commenced (1) | | 28:21 | 40:8 48:7 | 1:1,1,18 57:4 | 44:21 47:25 | 47:24 | | care (1) | 50:15,16 57:21 | circumstances... | 48:1 55:4 | comment (2) | | 3:20 | 60:24 | 47:23 48:2 | clarification (1) | 47:13,18 | | carries (1) | cause (18) | citation (2) | 6:7 | commentary (1) | | 20:3 | 1:22 16:17 | 11:1 27:20 | clarify (3) | 52:8 | | carry (1) | 17:13,17,21,24 | cite (1) | 4:21 14:20 | commented (2) | | 31:11 | 18:1,4 20:3,6 | 32:7 | 51:22 | 28:18 29:3 | | case (90) | 23:4 24:10 | cited (9) | clear (10) | comments (3) | | 1:2 3:8 4:3 5:1 | 41:6 49:20,22 | 25:9 26:11 | 16:2 24:21 | 43:16 44:22 | | 6:1,15 7:16 8:5 | 50:1 51:7 | 27:21 28:20 | 41:16 49:16,21 | 47:6 | | 8:11 10:4,8 | 57:11 | 29:7 31:23 | 55:21 56:4,6 | commit (1) | | 11:9,11,11,12 | 57:11 | 40:3 45:5 59:3 | 56:15,15 | 33:9 | | 11:24 12:1,2 | causes (6) | citing (1) | clearly (3) | committing (1) | | 12:18,25 13:1 | 9:14 11:22 12:4 | 48:14 | 45:2 57:1,12 | 41:24 | | 13:4,9,13 14:3 | 15:3 | civil (3) | client (4) | communicate... | | 14:5,12,12,24 | caveat (1) | 12:20 18:4 26:5 | 14:2 33:25 | 42:3 | | 16:15 19:19 | 10:25 | claim (45) | 40:25 41:21 | compelling (2) | | 22:14,15,15 | ceded (1) | 4:25 5:5,23 9:18 | clients (6) | 29:18 31:14 | | 23:22 24:2,5 | 23:23 | 14:20 17:15 | 31:11 34:8 | complained (1) | | 25:10 26:1,3 | century (1) | 18:8 24:7,22 | 37:15 41:25 | 12:10 | | 26:14 27:19 | 30:25 | 24:23 25:9,24 | 44:1,5 | complaining (1) | | 28:25 31:4,6 | certainly (4) | 26:2 28:20 | client's (1) | 25:25 | | 31:13,23 33:13 | 36:20 45:23 | 29:20 30:1,23 | 41:5 | complaint (19) | | 33:16,17,23 | 46:4 57:14 | 32:21 36:24 | close (5) | 9:10 13:14,23 | | 34:21,25 35:1 | CERTIFICA... | 38:25 39:1,3 | 11:11 20:9,12 | 14:9,9,10 15:8 | | 36:8,9,16,23 | 62:1 | 39:14,18 41:1 | 20:14,16 | 15:11 17:11 | | 37:17 39:6,17 | certified (1) | 43:22 44:10,13 | closely (1) | 19:6,15,17 | | 39:24,25 40:2 | 59:12 | 45:17,20 46:8 | 60:22 | 22:18 26:5 | | 41:15 42:6 | certify (1) | 47:15,16,20,24 | CLR (2) | 33:7 39:8 52:3 | | 44:6 45:4 | 62:9 | 48:3,6 52:20 | 1:24 62:18 | 57:25 58:7 | | 47:23 48:8,9 | cert's (1) | 52:22 54:20 | cogent (3) | complaints (1) | | 49:15,15 50:12 | 28:17 | 55:17 56:19 | 26:12 29:12 | 25:25 | | 50:22,22 51:5 | chair (1) | 59:8 60:15,16 | 56:14 | complete (1) | | 51:6 55:23 | 49:6 | claimed (2) | cold (1) | 62:12 | | 57:8,9,13 | challenge (1) | 13:19 15:4 | 4:17 | completely (1) | | 58:14 59:3,9,9 | 48:3 | claiming (2) | COLEMAN (1) | 35:9 | | 59:11,17 60:10 | changed (1) | 23:24 52:19 | 2:15 | compliment (1) | | 61:7 | 11:2 | claims (31) | come (1) | 58:20 | | cases (28) | characteristic ... | 3:24 4:1 5:8,17 | 28:4 | conceded (3) | | 4:8 7:21,24 8:12 | 60:8 | 6:3,4 7:19 | comes (3) | 57:22,23 60:16 | | 8:24 11:10,16 | charged (1) | 15:23 24:4 | 40:12 41:6 | conceding (1) | | 12:16 13:7 | 33:8 | 25:13 27:25 | 47:11 | 60:23 | | concept (1) | 55:4 | counterclaim ... | 34:18 35:17,25 | 4:2 20:20,24 | | ----------------------- | ------------------------ | ----------------------- | --------------------- | -------------------- | | 44:9 | context (2) | 6:14 9:11,12,13 | 36:10 37:22 | [REDACTED] (1) | | concern (3) | 32:11 45:12 | 9:19 13:15 | 38:11,12,14,17 | 53:3 | | 16:4 45:25 | continue (1) | 50:7 | 40:11 42:2,23 | Cruz (1) | | 54:17 | 44:19 | counts (4) | 43:9,19 45:22 | 29:7 | | concerned (2) | continued (2) | 9:7,9 23:24 | 46:1,10,13,17 | crystal (1) | | 39:3 52:21 | 44:4 45:8 | 60:20 | 46:21,25 47:10 | 56:4 | | concerns (4) | continues (1) | County (5) | 48:23 49:1,4,8 | current (2) | | 36:7 43:17 | 35:11 | 1:1,16 19:8,8 | 51:10,13,15 | 9:24 10:4 | | 44:23 45:13 | continuing (2) | 62:5 | 52:17,18 53:19 | currently (3) | | concession (1) | 15:24 40:24 | course (18) | 53:24 54:9,13 | 6:15,18 25:7 | | 57:23 | contradistinct... | 3:21 4:23 8:23 | 54:22 55:14,19 | cut (2) | | concise (1) | 25:16 28:7,10 | 11:17 21:21,25 | 55:25 56:1,3,7 | 31:19 32:3 | | 26:25 | contrary (1) | 27:13 29:16,22 | 56:12 57:2,5 |
D
| | conclude (1) | 56:2 | 35:3 47:22,25 | 57:19 58:4,14 | Dade (1) | | 49:23 | control (2) | 48:9 51:20 | 58:18 59:8,11 | 19:8 | | concluded (2) | 22:4 37:6 | 52:1 55:10 | 59:12,22 60:19 | damages (3) | | 8:1 61:19 | controvert (1) | 56:22 60:17 | 61:1,6,9,16,16 | 48:17 52:25 | | conclusion (2) | 37:1 | court (163) | 61:18 62:1,9 | 53:3 | | 4:9 28:5 | convenient (1) | 1:1 3:3,6,11,17 | courtesy (1) | dare (1) | | conclusionary... | 37:11 | 4:13,18,23 5:2 | 48:25 | 28:12 | | 58:3 | Cope (3) | 5:10,13,20,23 | Courthouse (1) | DATE (1) | | concurring (6) | 27:7,14,19 | 6:1,6,20 7:1,12 | 1:16 | 1:15 | | 25:19 27:7,9,10 | Cope's (1) | 7:22,23 8:3,6 | courtroom (2) | Dated (1) | | 28:3 42:19 | 28:3 | 8:13,15,19,22 | 1:17 54:25 | 62:14 | | conduct (5) | copies (2) | 9:25,25 10:1,3 | courts (4) | dates (1) | | 6:4 38:19,19,21 | 21:14,15 | 10:9,15,18 | 11:20 28:18 | 11:14 | | 51:25 | copy (1) | 11:6 12:2,6,18 | 39:12 50:6 | day (5) | | confidential (1) | 58:16 | 13:1,5 14:6 | court's (13) | 10:13 17:25 | | 36:3 | cornerstone (1) | 15:15,15,16,19 | 22:4 23:3 24:13 | 19:11,12 62:14 | | conflict (2) | 61:9 | 16:2,6,11,19 | 27:20 28:10 | days (1) | | 25:7 58:11 | correct (3) | 16:25 17:8,17 | 49:18,24 55:8 | 38:7 | | confused (1) | 5:18 8:18,20 | 17:25 18:2 | 57:17 60:12,13 | DCA (3) | | 23:18 | correction (1) | 19:9,23 20:10 | 61:5,10 | 27:18,22 29:9 | | confusing (1) | 10:13 | 20:13,15,18 | cover (1) | DCA's (2) | | 10:20 | correctly (1) | 21:3,6,13,17 | 24:5 | 25:11 27:16 | | conservative (1) | 11:12 | 22:3,6,14,19 | covered (2) | deal (4) | | 36:18 | corrects (1) | 22:22 23:1,2,7 | 23:20,24 | 3:15 11:13 21:9 | | conspiracy (1) | 37:19 | 23:17 24:15,20 | cries (1) | 58:7 | | 33:9 | Corrigan (3) | 25:4,5 26:16 | 43:21 | dealing (3) | | contained (1) | 28:21 29:2 45:4 | 26:17,21,24 | crimes (2) | 25:4 30:3 55:19 | | 57:24 | counsel (8) | 27:3,9,12,23 | 33:9,11 | deals (3) | | contains (1) | 3:8 6:22 21:15 | 28:6,14,16,24 | criminal (1) | 21:6,10 59:6 | | 10:24 | 29:24,25 37:4 | 29:17 30:2,3 | 59:25 | dealt (2) | | contempt (2) | 47:14 53:11 | 30:15,18,20,24 | cripple (1) | 25:25 55:16 | | 16:20 22:5 | count (1) | 31:20,24 32:9 | 22:7 | decided (1) | | contentions (1) | 45:11 | 32:12 33:1,21 | [REDACTED] (3) | | | 28:24 | desiring (1) | discussed (4) | Dixie (1) | 18:12,17 19:12 | | ---------------- | ---------------- | ------------------ | ---------------- | --------------- | | decision (11) | 33:21 | 28:25 32:5 | 1:16 | 19:13 22:16,24 | | 26:19,22 27:7 | despite (2) | 58:13 60:10 | doctrine (2) | 32:18 33:2,8 | | 27:16,22 28:21 | 32:24 35:10 | discusses (1) | 28:11 39:18 | 34:5,8,14 | | 28:23 31:24 | detail (1) | 31:25 | documents (2) | 35:21 37:13 | | 32:6 60:13 | 23:6 | discussing (1) | 38:6 40:15 | 38:4 40:22 | | 61:10 | determination... | 36:6 | doing (3) | 41:15,25 44:3 | | decisions (2) | 17:18,22 18:2 | Discussion (2) | 8:16 34:23,23 | 44:19 47:24 | | 21:24 60:12 | 23:8 24:11 | 22:21 31:22 | Donald (1) | 48:15 52:5,11 | | decision-maki... | 17:23 | dismiss (2) | 1:18 | 53:1,4,5,18,22 | | 57:17 | determination... | 37:17 38:1 | double-check ... | 54:15 55:4 | | defamation (4) | determine (2) | dismissal (1) | 47:13 | 57:14 60:17 | | 11:15,16 59:9 | 11:22 21:13 | 5:17 | dropped (2) | effect (1) | | 59:22 | determined (3) | dismissed (3) | 41:11,12 | 50:13 | | defamatory (1) | 12:14 13:9 50:3 | 5:14 6:1,5 | due (1) | effectuated (1) | | 59:23 | determining (1) | disposed (1) | 57:3 | 37:3 | | defeat (1) | 12:10 | 23:22 | E | efforts (1) | | 52:12 | developed (1) | disputes (1) | earlier (3) | 48:8 | | defendant (3) | 40:19 | 23:12 | engregious (3) | 45:7,14 54:2 | | 18:5,6 30:6 | dictate (1) | disqualify (1) | 54:1 | either (4) | | defendants (4) | 46:22 | 29:24 | early (1) | 23:14 28:17 | | 1:8 5:11,13 | dictates (1) | dissatisfaction... | 32:4 | 45:6 52:19 | | 49:20 | 61:6 | 42:10 | easier (1) | elements (7) | | defended (1) | difference (1) | distance (1) | 10:6 | 24:6,22 42:21 | | 5:6 | 45:15 | 15:25 | Echevarria (17) | 47:17 48:4,11 | | defenses (1) | different (8) | distinction (2) | 11:11 12:17 | 57:15 | | 9:20 | 7:14,20,21 | 41:16,16 | 13:6 14:12 | embrace (1) | | degree (1) | 11:20 30:5 | distinctly (1) | 21:10 23:21,25 | 42:20 | | 40:17 | 35:9 42:16 | 56:20 | 25:12 28:24 | empathy (1) | | Delmonico (1) | 56:20 | distinguish (3) | 51:15,16 54:12 | 54:24 | | 21:11 | differently (1) | 15:20 40:7,8 | 54:23 55:16 | emphasis (1) | | demonstrated ... | 60:3 | distinguishabl... | 56:18 60:14 | 32:23 | | 17:13 | difficult (3) | 31:3 | 61:5 | encompassed ... | | denied (1) | 44:24,25 47:11 | distinguished ... | 40:17 | 60:5 | | 11:4 | difficulty (2) | 59:8 | 40:17 | ended (2) | | DENNEY (1) | 32:20 55:6 | distinguishing... | Education (1) | 43:16 57:13 | | 2:18 | dilemma (1) | 60:7 61:4 | 3:18 | enforcement (1) | | depos (1) | 51:13 | district (15) | educational (1) | 59:14 | | 48:20 | directive (1) | 9:25 10:1 13:1 | 40:20 | entire (3) | | deposition (4) | 61:5 | 15:14,15 28:13 | (55) | 33:5 48:19,20 | | 8:4 22:10 38:6 | disclosure (1) | 28:14 29:8 | 1:7 2:17 4:6 5:6 | entities (2) | | 39:9 | 39:6 | 50:5 54:13 | 5:8,18 6:2,15 | 4:6,25 | | depositions (3) | discovery (7) | 55:25 56:3 | 6:22 7:6 8:3,15 | entitled (1) | | 14:14 18:23 | 8:24 13:21 | 57:19 60:11 | 9:6,11,18,19 | 22:17 | | 48:18 | 14:14 18:21 | 61:6 | 10:6,7 13:22 | Epstein (38) | | described (1) | 22:1 34:14 | division (2) | 14:2 15:6,21 | 1:4 3:24 4:5,14 | | 57:12 | 52:4 | 3:25 4:10 | | | | 6:11,13 7:4,19 | evidence (7) | extrajudicial (2) | family (3) | 19:16 | | ----------------------- | ---------------------- | ------------------------ | ------------------ | -------------------- | | 8:19 9:3 13:24 | 19:20 34:4 | 56:12,13 | 53:6,9,23 | finding (2) | | 15:7 17:13 | 35:24 37:9 | extremely (1) | far (6) | 17:24 49:24 | | 18:10,19 19:19 | 38:3,8 43:24 | 58:22 | 11:22 12:3 26:4 | fine (3) | | 32:16,22,25 | | | 38:21 39:2,19 | 34:24 37:22 | | 34:2,2,22 35:8 | evil (1) | F | fathom (1) | 49:8 | | 37:1,6,10 | 44:18 | | 52:18 | firm (7) | | 40:15,25 44:7 | evolution (1) | face (2) | 52:18 | 18:13,15,19 | | 44:20 50:9 | 33:16 | 34:25 57:6 | favor (5) | 19:5 32:14 | | 52:2,3,4,19,22 | exactly (1) | faced (2) | 49:19 55:1,3,4 | 19:5 32:14 | | 53:8,17 | 13:13 | 13:1 38:2 | 57:14 | 36:16 41:11 | | Epstein's (8) | example (4) | facing (2) | federal (5) | firms (1) | | 5:23 6:4 9:18 | 33:25 42:17 | 34:17 39:7 | 7:22 8:5,13 34:6 | 41:10 | | 18:24 22:18 | 43:11 53:20 | fact (11) | 44:6 | first (2) | | 33:6 42:10 | excellent (1) | 10:1 13:20 | feel (1) | 6:9 18:12 | | 44:16 | 58:19 | 17:20,21 24:1 | 20:2 | five (1) | | equally (1) | excuse (4) | 24:10,19 35:10 | fellow (1) | 19:23 | | 45:20 | 15:6 35:22 | 40:9 50:15,22 | 57:4 | FL (5) | | escalating (1) | 41:23,23 | factor (2) | felt (1) | 1:17 2:5,9,14,19 | | 19:1 | 42:22 47:8 | 32:7,8 | 53:5 | Fla (1) | | especially (2) | 50:21 | facts (21) | file (1) | 28:23 | | 32:23 58:23 | exists (3) | 23:5,10 26:3 | 39:2 | flies (1) | | espoused (2) | 23:7 25:7 38:24 | 31:6,13 35:6 | fide (5) | 57:6 | | 9:24 15:14 | experience (1) | 35:17 36:13 | 23:8 24:11,18 | flight (1) | | ESQUIRE (5) | 40:21 | 40:19 42:25 | 43:5 57:13 | 18:22 | | 2:6,10,15,20,21 | explanation (1) | 43:2,7,18,20 | Fifth (1) | flights (1) | | essence (1) | 19:4 | 44:7 45:7,13 | 27:22 | 18:24 | | 48:13 | exposed (1) | 45:14 47:15 | figure (1) | Florida (17) | | essentially (6) | 31:15 | 48:13,15 | 26:18 | 1:1 9:24 12:2,18 | | 12:20 13:5 | expressed (2) | factual (6) | file (4) | 15:16 16:6,21 | | 16:11 32:25 | 45:14 46:7 | 20:4 23:12 43:4 | 15:7 17:15,15 | 18:16 22:6 | | 38:18 45:3 | expressly (2) | 43:4 57:12,15 | 17:16 | 30:17 51:15 | | establish (1) | 29:15 30:10 | fail (1) | filed (18) | 55:7 56:12 | | 51:1 | extend (1) | 17:12 | 6:13,14 7:22 9:5 | 59:11 60:13 | | established (1) | 39:13 | fairly (1) | 9:11 13:14,17 | 62:4,9 | | 21:20 | extension (1) | 60:22 | 15:8,10 17:13 | focal (1) | | establishing (1) | 10:14 | faith (1) | 19:14 22:11,12 | 41:1 | | 18:3 | extent (1) | 43:4 | 26:5 30:1 38:6 | focus (4) | | ethical (3) | 4:6 | falls (1) | 40:15 50:23 | 5:7 25:2 47:19 | | 31:11 41:3,20 | extorsion (1) | 57:1 | filing (10) | 55:17 | | eve (4) | 33:11 | false (2) | 13:22 14:1,8,9 | follow (2) | | 5:18 37:17,24 | extort (1) | 41:8 50:24 | 22:2,7 30:5,12 | 28:15 56:1 | | 41:12 | 14:2 | familiar (2) | 48:16 52:3 | following (4) | | event (2) | extra (1) | 11:15 19:9 | final (3) | 1:23 3:2 29:18 | | 19:14 37:23 | 55:8 | familiarity (1) | 11:1,5 58:2 | 61:4 | | everybody (1) | extracted (1) | 4:1 | finance (1) | footnote (1) | | 3:3 | 51:14 | familiarize (1) | 40:18 | 28:4 | | | | 53:13 | find (1) | foregoing (1) | | 62:11 | further (3) | 46:11 55:17 | hand (1) | holds (2) | | --------------- | --------------- | ----------------------- | ----------------------- | ---------------------- | | forever (2) | 14:19 36:7 | 56:22 | 36:12 | 25:12,16 | | 16:12,14 | 38:10 | GOLDBERG... | handle (1) | Honor (27) | | forget (1) | future (1) | 2:8,10 | 24:24 | 3:5 4:20,24 5:25 | | 14:18 | 39:22 | Goldberger's ... | handled (3) | 6:10,16 7:10 | | forgive (1) | F.Supp.2d (1) | 55:2 | 3:24 4:8 16:24 | 7:17 15:13 | | 55:20 | 28:22 | good (3) | hang (1) | 17:5 21:14,19 | | forgot (1) | | 3:3,5 43:4 | 57:11 | 22:23,24 35:22 | | 49:5 | | government (2) | happened (3) | 46:12,14 49:3 | | form (1) | game (1) | 34:6,6 | 8:7 10:19 33:22 | 49:12 52:15 | | 58:1 | 53:11 | grant (4) | happens (3) | 53:10 54:8 | | formal (1) | gather (1) | 20:5 24:8 60:20 | 26:4 33:16 | 58:17 60:21 | | 51:23 | 60:11 | 60:24 | 37:16 | 61:8,15,18 | | format (1) | general (1) | granted (1) | happy (1) | hope (1) | | 11:2 | 33:10 | 48:17 | 21:5 | 35:7 | | forms (1) | genesis (2) | granting (1) | harken (1) | horrific (1) | | 54:19 | 54:12 59:5 | 49:19 | 58:5 | 33:8 | | Fort (1) | getting (2) | grasp (1) | hat (1) | horrifying (1) | | 2:14 | 17:5 43:14 | 48:19 | 57:11 | 54:2 | | forth (3) | girls (1) | gratifying (1) | head (2) | hour (1) | | 25:22 54:21 | 34:9 | 58:22 | 12:25 60:9 | 3:13 | | 58:11 | give (3) | greater (1) | headed (1) | hours (1) | | found (2) | 21:3 38:14 | 32:2 | 11:9 | 3:9 | | 12:19 15:2 | 48:13 | grievances (1) | hear (1) | huge (1) | | four (1) | given (1) | 22:7 | 4:17 | 34:4 | | 53:12 | 31:9 | group (2) | heard (2) | | | fourth (9) | 15:21 23:20 | 19:15 27:8 | 1:22 3:18 | I | | 9:13 10:1 15:15 | 57:18 | gucss (3) | hearing (3) | Idaho (1) | | 39:16,16 50:5 | 24:4 | 40:11 | 1:12 5:19 58:25 | 31:24 | | 55:23 56:3 | go (16) | 33:1 | hearings (1) | idea (2) | | 44:25 | 7:11 14:19 | guilty (1) | 58:23 | 44:9 50:8 | | FPR (2) | 16:11,13 17:7 | 38:4 | heinous (2) | identified (2) | | 1:24 62:18 | 18:9 19:17 | guiscd (1) | 41:24 42:2 | 32:1 45:19 | | fraud (3) | 26:4 31:5 | 17:1 | held (1) | identify (2) | | 33:9,10,10 | 39:19 41:2,17 | guy (2) | 59:22 | 23:6 54:3 | | Fridovich (2) | 43:2,19 45:10 | 50:23,24 | Henry (1) | ignores (2) | | 59:10,10 | 61:1 | guys (1) | 27:17 | 27:6,15 | | front (2) | goes (3) | 19:25 | highlighted (2) | immediately (1) | | 12:18 18:15 | 21:8 35:3 54:10 | going (15) | 21:14,15 | 36:17 | | full (3) | 3:11 6:20 8:5 | H | highlighting (1) | immunity (11) | | 27:16 39:6,19 | 14:11 19:4 | Haddad (7) | 48:21 | 31:9 32:3,5,5 | | fundamental... | 23:4 28:15 | 2:12,15 4:11,12 | 1:16 | 36:13 38:23 | | 30:5 | 33:5 34:22 | 4:15 5:25 20:1 | history (6) | 39:12 51:19,25 | | Funeral (1) | 36:7 45:9,10 | Hafele (1) | 6:21 7:18 10:21 | 52:9 55:12 | | 27:16 | | 1:18 | 10:23 18:16 | impact (4) | | | | | 33:5 | 35:14 43:18,20 | | | | | | 58:6 | | impeachment ... | 27:5 | 3:24 5:11,13 | Jeffrey (2) | juncture (1) | | ----------------------- | ------------------------- | ---------------------- | ---------------------- | ----------------------- | | 7:10 | influence (1) | 7:21 17:20 | 1:4 6:11 | 5:24 | | implicitly (3) | 33:1 | 29:21 31:5 | jgoldberger@... | jurisdiction (1) | | 27:22,24 30:21 | information (2) | 33:12 38:9 | 2:11 | 28:17 | | imploded (1) | 8:1 13:24 | 39:20 40:9 | job (2) | jury (3) | | 19:5 | inherent (1) | 44:2 48:5 | 58:19 61:13 | 17:22,22,23 | | implosion (1) | 22:4 | involvement (4) | Johnson (6) | | | 37:12 | initial (4) | 31:7 32:13 36:8 | 25:10,21,25 | | | import (2) | 5:17 24:17 33:7 | 44:16 | 26:22 29:14 | | | 39:19 59:5 | 49:10 | involves (1) | 50:19 | | | important (2) | initiation (1) | 30:5 | JR (2) | | | 44:8 59:16 | 13:17 | involving (3) | 2:3,6 | | | importantly (1) | input (1) | 4:3 12:16 33:17 | JSX@scarcyl... | | | 28:9 | 61:12 | iota (1) | 2:20 | | | improper (2) | inside (1) | 38:3 | judge (33) | | | 22:1,2 | 34:22 | irrelevant (1) | 1:18 4:2,15 8:10 | kindly (2) | | inappropriate... | insofar (1) | 14:21 | 10:13 17:22 | 3:12 61:1 | | 16:22 | 17:11 | issuance (1) | 20:20,24 25:3 | (55) | | include (1) | 59:15,19 | issue (30) | 25:18 26:9,11 | 2:21 8:10,14,18 | | 57:20 | | 10:7 12:3 13:2 | 26:17,20 27:7 | 8:20 10:10,12 | | including (2) | 59:25 | 13:14 18:1 | 27:14,19 28:3 | 10:16,19 22:22 | | 12:7 45:7 | | 20:6,13,14 | 28:21 29:2,14 | 22:23,23 23:3 | | incredibly (1) | 27:4 36:12 | 23:4,7,14,20 | 42:18,19 43:11 | 23:17 24:13,16 | | 57:23 | | 24:11,12,17 | 44:9 45:4 46:6 | 25:1,6 26:19 | | independent (1) | 12:1,9 30:1 | 25:3,8 28:15 | 47:1,5 53:3 | 26:22,25 27:4 | | 4:4 | | 31:25 35:15 | 56:21 57:5 | 27:10,13 31:21 | | indicate (3) | 13:20 14:15 | 36:13 40:1,5 | 58:2 | 31:23 32:18 | | 32:13,15 50:20 | | 44:23 50:2 | judges (1) | 33:4 34:19 | | indicated (7) | 10:3 | 57:11,12 58:7 | 26:13 | 36:5 37:8,23 | | 30:21 32:11 | interrupting (1) | 58:11 60:9 | judgment (11) | 38:13,16 39:15 | | 55:22 60:25 | 55:20 | issued (1) | 5:19 6:13 14:25 | 40:11 41:2 | | indicates (3) | interruption (1) | 10:24 | 15:1 23:15 | 42:14,24 43:20 | | 8:15 10:24 | 8:21 | issues (13) | 24:25 35:23 | 45:23 46:4,24 | | 37:20 | interview (3) | 12:22 19:20 | 37:18,24 41:13 | 47:4 48:24 | | indication (2) | 6:23 7:4,7 | 20:4 21:12,13 | 49:19 | 49:9 51:11 | | 35:20 36:24 | intimidate (1) | 26:4 35:4,15 | judicial (31) | 54:1,9,14 | | indications (1) | 14:1 | 43:3,4,5 46:23 | 1:1 11:17 12:12 | 55:13,15 56:16 | | 34:12 | investigations ... | 58:12 | 12:21 13:11,18 | 58:2,5 | | individual (5) | 8:2 | | 13:18 14:8,13 | Knachwalter (... | | 40:17 41:23 | investigator (1) | | 15:18 16:9 | 32:14 36:16 | | 47:12 59:7,14 | 54:16 | J (2) | 38:19,20,21,23 | knew (3) | | individually (4) | 60:4 | 1:7 2:17 | 39:10 51:9,20 | 5:10 18:10 | | 1:7,7 5:3,5 | | Jack (3) | 51:23 52:23,24 | 37:14 | | individuals (1) | investors (3) | 2:10,20 22:24 | 53:25 54:5 | know (31) | | 59:24 | 19:15,22 27:8 | January (2) | 55:9,10 56:9 | 3:23 4:7,8 6:24 | | inexplicable (1) | involved (13) | 1:15 62:14 | 57:25 59:15,19 | 7:14,15 11:7 | | | | | 60:5,18 | 16:13,21 19:7 | | 19:24,25 27:13 | 30:25 44:13 | liability (3) | 45:19 49:17,22 | 27:24 28:19 | | --------------------- | --------------------- | ---------------------- | ----------------------- | -------------------- | | 34:1,2,18,21 | 49:16,21 59:14 | 32:4 39:7 59:21 | 49:25 50:4,16 | 29:4,10,19 | | 37:16 40:12,16 | lawsuit (5) | liberal (1) | 51:24 58:9 | 30:4,7,11,13 | | 40:18,23 44:6 | 9:5 30:4 39:6 | 36:15 | little (1) | 30:16,23 31:1 | | 46:15 47:8 | 44:17 48:6 | Libow (2) | 49:13 | 35:4 39:1 42:7 | | 51:11,11,12 | lawyer (1) | 26:23 29:14 | LLC (1) | 42:21 43:12,15 | | 52:14 54:18 | 42:18 | lic (1) | 28:22 | 43:22 44:8,10 | | 57:4 | lawyers (19) | 36:24 | LM (2) | 45:22,24 46:4 | | knowledge (5) | 31:7,8 32:1 | lied (1) | 6:3 9:6 | 49:14,23 50:1 | | 4:3 38:2 53:8,16 | 33:12,22 34:15 | 51:3 | long (9) | 50:20 51:7 | | 53:22 | 34:21,24 35:1 | light (3) | 14:15 38:22 | 52:13,20,21 | | known (1) | 35:9 37:21,25 | 23:3 43:10 | 39:10,23 51:20 | 54:19 55:16 | | 13:25 | 39:21 40:9,12 | 52:15 | 52:8 55:11 | 56:19 57:9,20 | | knows (3) | 40:23,24 41:3 | lightly (1) | 56:10 57:21 | 58:9 60:16 | | 43:25 44:6,7 | 41:17 | 30:19 | longer (3) | mandate (2) | | Krig (1) | lawyer's (1) | light's (1) | 23:13,14 50:11 | 10:24 11:3 | | 28:22 | 36:8 | 45:10 | look (5) | manifests (1) | | L | lead (1) | likewise (3) | 35:17 42:20 | 18:23 | | ladies (2) | 18:17 | 23:12 24:18 | 43:10 58:14 | mass (1) | | 50:23 51:3 | leading (1) | 28:18 | 59:1 | 37:9 | | lady (1) | 26:2 | line (7) | looked (1) | mate (1) | | 6:23 | learned (2) | 29:2 34:24 | 11:20 | 57:3 | | Lakes (1) | 8:25 9:3 | 36:12 38:9 | looking (1) | material (1) | | 2:18 | left (3) | 41:4,4,5 | 43:9 | 32:17 | | landscape (1) | 4:10 56:14 | lines (2) | low (1) | materials (4) | | 43:9 | 57:17 | 31:17 39:9 | 18:4 | 3:7 43:1 48:16 | | language (6) | legal (6) | litigant (1) | lure (1) | 58:19 | | 51:13 54:23 | 17:18,18 31:11 | 16:23 | 19:22 | matter (15) | | 56:8,11 58:8 | 41:4,20 56:14 | litigants (3) | M | 3:16,23 4:21 7:9 | | 61:3 | legitimate (1) | 16:16 22:8 | Mabie (1) | 18:1 20:4 | | large (2) | 45:13 | 40:13 | 11:25 | 21:23 38:18,20 | | 60:12 62:9 | length (1) | litigation (54) | machinations ... | 39:11 45:14 | | largest (1) | 15:22 | 9:22,23 11:13 | 33:6 | 51:15 54:3,18 | | 18:16 | let's (2) | 11:18,23 12:23 | Madam (1) | 55:24 | | LatAm (1) | 11:8 42:22 | 13:2 14:4,17 | Matters (1) | 8:19 | | 39:25 | level (1) | 14:22 15:2,9 | Matters (1) | Maxwell (3) | | latch (1) | 52:16 | 16:9 17:1 | maintain (1) | 1:24 62:8,18 | | 40:5 | Levin (23) | 18:20 19:21 | 40:10 | mean (2) | | late (2) | 11:10,25,25 | 21:6,9,10,19 | making (3) | 35:7 42:8 | | 19:3 53:10 | 12:6,19 13:6 | 21:22,25 22:5 | 52:4 53:17,22 | Meaning (1) | | latest (1) | 14:12 16:15 | 22:9,17 25:2,8 | malicious (56) | 36:14 | | 8:3 | 20:22,22 23:21 | 25:14 26:7 | 5:9 9:8,15,17 | memo (1) | | Lauderdale (1) | 23:25 25:11 | 27:25 28:19 | 12:24 13:15 | 39:15 | | 2:14 | 27:20 28:24 | 29:3,5,11 30:2 | 15:25 16:18 | memorandum... | | law (8) | 29:21,23 39:5 | 30:8,9,11,22 | 17:11 24:4,6 | 27:21 | | 18:1 20:5 21:13 | 47:6,10 55:15 | 31:3,9 40:1,6 | 24:22 25:9,12 | mentioned (1) | | | 55:15 56:18 | 42:14 43:15,23 | 25:24 26:2,8 | | | 50:19 | 3:13 | noticed (2) | 25:10,21,24 | 51:9,23 52:22 | | --------------- | --------------- | --------------- | --------------- | ---------------- | | merely (2) | move (1) | 22:10,11 | 26:6 29:17 | 52:24 53:24 | | 33:17,18 | 20:7 | November (2) | 50:19,22 51:5 | 54:5,10 | | met (4) | multiple (1) | 9:4 19:3 | 58:6,14 59:3,7 | overturn (1) | | 4:2 17:2 20:2 | 48:1 | November/De... | 59:18 60:10 | 30:25 | | 60:9 | muster (1) | 9:4 18:11 | 61:4 | | | meticulous (1) | 24:24 | number (6) | once (2) | P | | 57:5 | myriad (1) | 5:11 7:18,20,21 | 21:20 26:5 | PA (2) | | Middle (2) | 47:10 | 9:2,20 | one's (1) | 2:8,12 | | 20:22 29:8 | M.D (1) | numerous (1) | 57:11 | package (1) | | Middlebrook ... | 28:23 | 18:20 | one-half (1) | 6:21 | | 20:22 | | | 3:12 | page (1) | | miles (1) | N | | operative (1) | 10:14 | | 51:2 | N (1) | objection (1) | 57:24 | Palm (8) | | mind (3) | 1:16 | 46:13 | opinion (21) | 1:1,16,17 2:5,9 | | 16:12 34:2,3 | name (3) | obligated (1) | 25:11,19 26:9 | 2:18,19 62:5 | | minute (3) | 6:23 7:13 38:4 | 22:8 | 26:11 27:9,11 | panel (1) | | 22:20 45:11 | names (1) | obligations (1) | 27:18 28:3 | 27:19 | | 51:6 | 18:25 | 31:10 | 29:13,14 42:19 | panel's (2) | | minutes (2) | National (2) | obnoxious (2) | 43:11 44:25 | 27:16 28:4 | | 3:19 46:10 | 39:17,24 | 52:4 54:1 | 45:1,4 47:1,3 | papers (3) | | misconduct (1) | nature (1) | occasions (1) | 54:13 57:5 | 5:21 34:4,13 | | 21:25 | 56:20 | 7:14 | 58:8 59:5 | part (5) | | misstating (1) | near (1) | occur (1) | opinions (1) | 35:4 46:16 | | 5:11 | 4:9 | 21:21 | 27:14 | 54:25 55:24 | | moment (2) | necessarily (1) | occurred (1) | opportunity (5) | 60:12 | | 28:25 46:20 | 34:1 | 11:16 | 3:6 6:25 23:6 | participant (1) | | moments (4) | necessary (1) | occurring (4) | 32:2,3 | 53:11 | | 3:14 25:18 27:2 | 5:12 | 51:19,25 55:9 | opposed (4) | participants (1) | | 49:3 | need (1) | 60:17 | 24:23 29:16 | 14:16 | | Monday (1) | 31:5 | Office (1) | 32:22 47:2 | particular (2) | | 1:15 | neither (3) | 59:25 | opposing (1) | 35:15 41:15 | | months (1) | 7:7 29:4 55:15 | officer (1) | 21:15 | particularly (2) | | 53:12 | never (3) | 52:18 | opposition (1) | 16:15 38:24 | | motion (15) | 5:5 38:5,7 | ■ (1) | 50:7 | partner (1) | | 6:12 14:24 15:1 | non (1) | 53:12 | order (5) | 18:13 | | 17:10 22:11 | 20:6 | okay (16) | 47:2 49:18,24 | pending (1) | | 24:8 29:24 | North (1) | 4:11 6:6 7:17 | 60:22 61:2 | 15:23 | | 35:22 37:18,24 | 28:21 | 8:22 10:19 | orgics (1) | people (1) | | 48:16 50:7 | note (3) | 11:6 20:10 | 34:11 | 18:23 | | 52:12 60:20,24 | 20:8 27:17,19 | 21:17 22:19,22 | original (4) | performance (1) | | motions (2) | noted (1) | 24:15 26:24 | 9:18 15:8,11 | 58:21 | | 5:7 22:2 | 29:17 | 27:12 37:22 | 35:1 | period (3) | | motive (3) | notes (2) | 45:23 48:23 | outlined (3) | 8:8 19:1 33:3 | | 14:20 44:18 | 47:13 62:12 | old (2) | 34:3 37:10 | perjury (4) | | 48:10 | notice (2) | 34:9,10 | 42:25 | 16:23,25 33:9 | | movant (1) | 10:12 36:19 | Olson (15) | outside (7) | 33:10 | | person (1) | 60:23 | presentation (1) | 17:12,17,21,24 | 49:18 50:5 | | --------------- | ----------------- | ----------------- | ---------------- | ----------------- | | 59:13 | police (2) | 9:2 | 18:1,3 20:3,6 | 51:9,23 52:20 | | personal (3) | 50:24 59:24 | presentations ... | 23:4 24:10 | 54:6,20 55:24 | | 37:13 40:21 | policy (1) | 58:21,22 | 57:11 | 56:13 60:15 | | 54:24 | 21:23 | presented (1) | probably (3) | professional (2) | | persuasive (1) | Ponzi (2) | 59:12 | 4:7 38:10 53:12 | 49:11 62:8 | | 25:22 | 18:16 19:22 | presumptively... | problem (2) | professionalis... | | peruse (1) | portion (1) | 60:1 | 10:22 26:21 | 61:12 | | 58:12 | 53:1 | pretext (1) | problematic (1) | prominent (3) | | phase (1) | position (12) | 44:17 | 45:2 | 18:25 20:17 | | 36:2 | 23:13 25:6,21 | prevent (1) | procedural (2) | 22:13 | | picked (1) | 28:11 32:10 | 30:8 | 6:20 7:18 | prongs (1) | | 59:4 | 35:9 37:8 42:3 | primarily (1) | proceed (1) | 40:4 | | picking (1) | 45:3 46:1 52:6 | 39:5 | 41:8 | pronouncing (1) | | 42:4 | 56:25 | prior (4) | proceeded (1) | 11:12 | | piece (1) | 56:25 | 27:6 53:14 | 7:24 | properly (1) | | 38:8 | 56:17 | 59:14,19 | proceeding (19) | 17:15 | | place (3) | post-civil (1) | private (1) | 11:17 12:12 | proposed (1) | | 1:16,22 8:25 | 58:7 | 59:23 | 15:18 33:2 | 6:17 | | Plaintiff (2) | Potash (1) | privilege (62) | 38:23 39:10 | proposition (7) | | 1:5 2:3 | 27:8 | 9:22,23 11:13 | 51:20,21 52:9 | 21:11 25:23 | | plan (1) | potentially (2) | 11:18,23 12:4 | 52:25 53:25 | 26:6 28:14 | | 20:18 | 19:21 53:25 | 12:5,23 13:3 | 55:10,12 56:9 | 30:20 51:17,18 | | planes (1) | power (1) | 13:12 14:4,17 | 56:23 58:1 | propositions (1) | | 18:24 | 22:4 | 14:22 15:3,9 | 60:5,18,19 | 26:13 | | plans (1) | powers (1) | 16:10 17:1 | proceedings (... | prosecute (1) | | 35:25 | 22:5 | 21:7,9,11,12 | 1:13,23 3:2 | 15:24 | | pleading (1) | precedent (3) | 21:19,20,22 | 12:21 16:20 | prosecution (60) | | 13:18 | 27:6 28:8 57:3 | 22:17 25:3,8 | 29:22 35:10 | 5:9 9:15,17 | | pleadings (5) | precedential (3) | 25:14 26:7 | 38:20,22 47:22 | 12:24 13:16 | | 13:16 14:25 | 10:9 55:21 57:7 | 28:1,19 29:3,6 | 52:1,23 56:22 | 15:25 16:2,18 | | 49:19 50:12 | preceding (2) | 29:11 30:2,9 | 59:15,20 61:19 | 17:12 24:4,6 | | 54:21 | 12:12 16:9 | 30:12,22 31:3 | 62:11 | 24:22 25:9,13 | | please (7) | preclude (1) | 31:10 40:1,6 | process (50) | 25:24 26:2,8 | | 20:7 22:22 23:1 | 30:10 | 42:15 43:15,23 | 5:8 9:9,14,16 | 27:24 28:20 | | 23:2 39:14 | precursor (2) | 44:12 45:5,12 | 12:24 13:12,18 | 29:4,10,20 | | 58:4,15 | 39:25 45:1 | 45:16,19 47:9 | 13:19 14:8,14 | 30:4,7,8,11,13 | | plight (1) | preface (1) | 49:17,22,25 | 15:12 16:18 | 30:16,23 31:1 | | 40:24 | 52:7 | 50:4,17,17 | 24:4,23 29:5 | 35:4 39:1 42:7 | | podium (1) | prejudice (2) | 51:24 57:1 | 31:16 33:18,19 | 42:21 43:12,15 | | 49:7 | 5:15 6:2 | 58:9 59:8,21 | 37:2 38:19,24 | 43:22 44:8,10 | | point (10) | preliminary (1) | privileged (4) | 39:3,13,18,23 | 44:13 45:8,22 | | 17:9 21:18 24:3 | 23:18 | 13:10 14:10 | 40:2,7 41:1 | 45:24 46:5 | | 24:16 25:17 | prelitigation (1) | 60:1,6 | 42:7 44:24 | 47:25 49:14,23 | | 27:1 32:13 | 59:6 | pro (3) | 45:17,20 46:2 | 50:1,21 51:7 | | 41:1,7 49:15 | prepared (2) | 8:16 40:16 44:5 | 46:8 47:14,16 | 52:13,20,22 | | points (1) | 23:10 60:21 | probable (11) | 47:20 48:3,5,6 | 54:19 55:16 | | 56:19 57:9,21
58:10 60:16 | 23:20
P.A (2)
2:3,18 | 48:20 53:15
54:11 59:4 | 32:21
record (9)
22:20,21 31:20 | 7:16
relative (1)
24:3 | | ----------------------------------------------------- | -------------------------------------- | ------------------------------------------------------- | --------------------------------------------------------------- | ----------------------------------------------------- | | protected (5)
11:18 14:16,17
51:24 59:21 | p.m (4)
1:15,15 3:2
61:20 | reading (1)
10:23
ready (1)
17:5 | reading (1)
31:22 32:15
35:24 44:16
54:11 62:12 | relief (1)
20:5
rely (1)
25:19 | | protecting (1)
33:22 | | reaffirmation ...
55:7 | refer (1)
19:16 | remark (1)
58:3 | | protections (3)
16:15,17 17:6 | | reaffirmed (2)
51:14,16 | reference (3)
7:1 34:12,13 | remedies (2)
22:3 47:7 | | protocol (1)
46:22 | | reaffirms (1)
56:7 | referenced (2)
4:25 47:14 | remember (5)
5:20 19:11,11 | | protracted (1)
16:3 | | realize (2)
3:21 33:24 | referencing (1)
8:12 | remotely (1)
38:8 | | provided (2)
6:21 21:14 | | really (10)
5:6 11:9 14:21 | referred (1)
13:5 | rendered (1)
57:18 | | providing (1)
21:15 | | reaffirmed (2)
18:4 38:10
42:12 43:16 | regard (7)
6:14 21:12
22:17 24:14 | repeatedly (1)
34:8 | | public (3)
21:23 38:5,5 | | realtime (2)
1:25 62:19 | regard (7)
46:7 47:5
49:13 | report (2)
50:24 62:10 | | published (1)
11:1 | | reason (4)
15:7 17:14 24:5 | regards (1)
25:7 | reported (1)
1:23 | | pulling (1)
48:21 | | reasonably (1)
18:6 | regards (1)
25:7 | Reporter (3)
61:17,18 62:9 | | punitive (1)
48:17 | | reasons (9)
24:9 29:19 32:1 | Registered (1)
62:8 | representatio...
19:19 36:25 | | purely (1)
17:18 | | reasonably (1)
18:7 | rehearing (2)
10:8 11:4 | represented (3)
32:17 37:1,3 | | purpose (4)
7:9 14:1 30:7,9 | | reasons (9)
24:9 29:19 32:1 | rejects (1)
26:12 | repugnant (5)
36:14 38:18,21 | | purposes (1)
23:14 | | reasons (2)
24:9 29:19 32:1 | relate (1)
57:25 | reservation (1)
43:6 | | Pursuant (1)
23:16 | | reasonably (1)
18:7 | related (8)
13:11 14:8,11 | respect (2)
36:4 57:3 | | pursue (4)
19:19 34:21 | | reasons (9)
24:9 29:19 32:1 | relates (1)
9:17 | respectfully (1)
60:10 | | pursued (2)
34:14 48:1 | | reasons (2)
24:9 29:19 32:1 | relating (2)
48:16 53:3 | respective (1)
3:8 | | pursuit (2)
47:20 48:8 | | reasons (2)
44:14 54:23 | relation (9)
12:11 15:17 | respond (3)
16:4,5 22:8 | | purview (2)
40:20,21 | | recognized (1)
30:16 | relation (9)
51:21 52:8 | response (5)
8:10 9:10,19 | | put (5)
14:3 15:13 | | recognizes (2)
27:23,24 | relation (9)
53:2 55:11 | responsibilitie...
33:4,19 | | pursued (2)
34:14 48:1 | | recognizing (1)
30:25 | relationship (1)
56:10,10 60:18 | | | pursuit (2)
47:20 48:8 | | reconcile (1)
20:24 28:2,2,3 | | | | purview (2)
40:20,21 | | | | | | put (5)
14:3 15:13 | | | | | | pursued (2)
34:14 48:1 | | | | | | pursuit (2)
47:20 48:8 | | | | | | purview (2)
40:20,21 | | | | | | put (5)
14:3 15:13 | | | | | | 31:12 41:20,21 | 10:13 26:17 | second (3) | SHIPLEY (1) | 31:13 34:3 59:4 | | ---------------- | --------------- | --------------- | ---------------- | ---------------- | | resulted (1) | 44:9 46:6 | 25:11 29:9 | 2:18 | sorry (2) | | 26:1 | 56:21 | 31:20 | shoes (2) | 8:20 29:8 | | review (3) | Sasser's (5) | securities (1) | 52:10,11 | sort (1) | | 35:13 57:15 | 26:9,11 29:14 | 33:10 | short (1) | 33:20 | | 59:17 | 43:11 47:1 | see (5) | 56:15 | sorts (1) | | reviewing (2) | satisfied (3) | 14:23 36:22 | showed (1) | 33:8 | | 36:1,19 | 47:17 48:4,11 | 37:4 41:16 | 34:7 | Sounds (1) | | revoked (1) | save (1) | 58:24 | shows (3) | 20:18 | | 29:15 | 3:14 | seeing (1) | 31:25 43:21 | South (2) | | rid (1) | saw (4) | 58:25 | 44:16 | 2:4,8 | | 42:22 | 7:1,13 52:25 | seeking (1) | side (11) | So2d (5) | | right (13) | 53:4 | 52:3 | 3:19 10:6,7 | 25:10 27:8,17 | | 4:18 10:15 11:7 | saying (3) | seen (2) | 13:22 15:21,25 | 29:9 59:10 | | 17:2 27:3 | 20:21 36:10 | 50:14 53:16 | 37:5 52:6 53:1 | speak (6) | | 31:19 38:16 | 51:18 | seize (1) | 55:25 60:17 | 10:10 37:2,7 | | 42:23 43:19 | says (6) | 32:3 | sides (5) | 46:23 50:8 | | 46:3,24 47:2,4 | 20:24 21:1 44:9 | seized (3) | 15:6 36:11,22 | 57:8 | | [REDACTED] (4) | 45:5 56:21,25 | 35:20,21 37:11 | 58:20 61:14 | speaks (2) | | 6:24 7:2,3,13 | scale (1) | seminal (1) | signed (1) | 9:13 35:3 | | Robyn (3) | 50:11 | 11:24 | 7:8 | specially (1) | | 1:24 62:8,18 | Scarola (17) | sent (1) | significance (1) | 6:16 | | role (1) | 2:18,20 4:19,20 | 3:7 | 4:22 | specific (3) | | 41:3 | 4:24 5:4,12,16 | separate (3) | significant (2) | 24:19 33:11 | | Rothstein (12) | 5:22 6:3 7:5 | 4:4 22:9 30:1 | 3:25 43:8 | 56:2 | | 1:7 4:5,25 5:2,5 | 9:10 22:13,24 | separately (1) | signifies (1) | specifically (5) | | 5:24 9:5 18:13 | 37:19 46:11,20 | 24:24 | 11:4 | 30:19 49:16 | | 18:15,19 19:5 | scheme (1) | Services (1) | simply (2) | 54:18,21 58:15 | | 19:18 | 19:22 | 27:17 | 23:6 42:8 | spectrum (1) | | RPR (2) | schemes (1) | set (5) | sir (6) | 54:11 | | 1:24 62:18 | 18:16 | 6:15,16,18 | 5:12,18,22 6:9 | split (3) | | RRA (2) | Scherer (1) | 37:25 54:21 | 21:1,9 | 3:13 46:15,19 | | 37:11 44:3 | 19:6 | sets (3) | sitting (4) | stage (3) | | RRA's (1) | SCI (3) | 25:21 37:21 | 43:8,9 52:10,11 | 35:10 37:20 | | 19:19 | 27:16,19 28:4 | 58:10 | situation (6) | 44:1 | | rule (1) | scope (1) | settled (2) | 29:23 33:19 | stalked (1) | | 20:4 | 21:21 | 44:20,20 | 34:16 36:22 | 54:16 | | ruled (6) | SCOTT (1) | settlement (4) | 37:11 42:16 | stalking (3) | | 55:1,1,2,3,3,5 | 1:7 | 15:23 36:1 | six (2) | 50:23 51:3 59:7 | | ruling (4) | se (2) | 42:11 45:8 | 19:23 51:2 | stand (2) | | 23:3 24:14 | 2:13 40:16 | settlements (4) | size (2) | 28:13 51:8 | | 28:16 56:2 | SEARCY (1) | 32:24 35:14,18 | 35:13 36:1 | standard (4) | | rulings (1) | 2:18 | 37:3 | sliding (1) | 11:15 12:9 | | 30:24 | seat (1) | settles (1) | 50:11 | 15:14,17 | | S | 3:4 | 35:11 | somebody (1) | standards (1) | | Sasser (5) | seated (1) | Shepherd (2) | 22:9 | 17:3 | | | 22:25 | 25:18 42:19 | somewhat (3) | standing (2) | | 24:21 28:6 | 2:13 | support (1) | 1:15 7:5 11:19 | theory (1) | | ----------------------- | --------------------- | ------------------- | ---------------------- | --------------------- | | standpoint (3) | strong (1) | 47:15 | 16:22 29:21 | 25:20 | | 35:8 42:10 | 35:19 | supposed (1) | 39:4 47:21 | thing (2) | | 47:16 | strongly (1) | 35:23 | 51:9 57:16 | 6:19 10:3 | | stands (4) | 32:24 | Supreme (24) | takes (2) | things (4) | | 21:11 25:15 | stuff (1) | 3:17 9:25 12:2 | 17:23 56:24 | 9:2 10:6 18:25 | | 28:9 35:8 | 35:20 | 12:18 15:16 | talk (4) | 19:4 | | Star (1) | subject (4) | 16:6 17:7 | 6:19 9:16,23 | think (21) | | 28:21 | 27:25 29:13 | 27:20,23 28:6 | 48:7 | 3:8,14,17,20,22 | | state (8) | 55:12 57:14 | 28:10,16 30:18 | talked (1) | 11:14 14:6,7 | | 3:24 7:22 9:24 | submission (1) | 30:20,23 31:24 | 39:5 | 15:19 16:25 | | 16:24 34:6 | 23:9 | 51:15 55:7 | talking (7) | 20:1,5 35:2 | | 60:3 62:4,9 | submit (11) | 56:7,12 59:11 | 14:22 16:7,14 | 36:4 46:1 | | stated (6) | 26:10 31:2 | 59:12 60:13 | 17:6 22:1 | 47:12 50:25 | | 14:6 29:4 30:3 | 33:15,25 37:24 | 61:5 | 26:18 35:16 | 53:2 58:23 | | 30:10 49:16 | 45:6,9,18 | sure (7) | talks (2) | 59:16 60:22 | | 56:13 | 47:16,22 58:10 | 4:23 8:11 20:1 | 34:20 56:8 | Third (14) | | statement (4) | submitted (3) | 21:1 46:9 49:4 | Taylor (3) | 9:25 13:1 15:14 | | 6:22 24:1 48:14 | 10:12 23:10 | 50:25 | 31:23 32:8 | 27:16,18 28:12 | | 55:8 | 43:1 | survive (5) | 34:20 | 39:16 50:5 | | statements (9) | subpoena (1) | 30:14 43:13,23 | teach (1) | 54:13 55:25 | | 23:19 51:22 | 60:4 | 48:3 50:21 | 38:18 | 56:4 57:18 | | 59:6,13,17,20 | subsequent (2) | swear (1) | tell (4) | 60:11 61:6 | | 59:23 60:2,3 | 15:23 48:6 | 53:15 | 7:15 17:8 39:14 | Third's (1) | | states (3) | sued (2) | sword (1) | 52:2 | 45:1 | | 3:17 14:5 26:6 | 34:16 36:9 | 37:12 | tend (1) | thought (1) | | State's (1) | suggest (6) | sworn (1) | 36:18 | 31:16 | | 59:24 | 26:15 38:8 42:8 | 7:7 | tended (2) | thousand (1) | | status (1) | 42:24 43:7 | system (1) | 36:18,19 | 20:24 | | 10:4 | 56:18 | 22:8 | ten-minute (1) | threat (1) | | Statute (1) | suggested (2) | Systems (2) | 38:15 | 53:6 | | 22:6 | 31:8 33:20 | 1:25 62:19 | termination (3) | threats (3) | | statutory (3) | suggesting (1) |
T
| 24:18 43:5 | 53:7,17,22 | | 8:13 12:16,17 | 15:22 |
T
| 57:13 | three (4) | | stenographic (1) | suggests (1) | Tab (3) | terms (2) | 18:18 46:10 | | 62:12 | 29:10 | 20:22,23 59:1 | 32:10 40:5 | 50:23 53:12 | | stenographic... | suing (1) | tabbing (1) | testimony (1) | three-week (2) | | 1:23 62:10 | 11:25 | 58:19 | 54:15 | 6:17,17 | | step (2) | suit (2) | table (2) | thank (16) | threshold (1) | | 34:25 35:1 | 15:24 30:12 | 22:25 24:7 | 3:4 6:6 11:6 | 18:3 | | stood (1) | suite (4) | tailor (1) | 20:10 22:23 | tied (1) | | 10:13 | 2:4,9,13 57:3 | 3:12 | 25:1,5 46:25 | 57:20 | | stop (1) | summary (9) | take (7) | 49:1,9 59:2 | ties (1) | | 23:17 | 5:19 6:13 15:1 | 3:9,20 18:23 | 61:11,14,15,16 | 57:8 | | strange (1) | 23:15 24:24 | 36:15 42:3 | 61:18 | time (19) | | 19:2 | 35:23 37:18,24 | 46:21 59:1 | Thanks (1) | 1:15,22 3:13,20 | | Street (1) | 41:13 | taken (9) | 27:3 | 4:9 8:8 11:3 | | 15:20,22 18:7 | trilogy (6) | unequivocal (1) | view (3) | Wbk@searcyl... | | ---------------------- | ---------------------- | ------------------------ | ---------------------- | ------------------------- | | 18:11,17 19:1 | 11:10 13:8 | 26:6 | 24:3,25 57:16 | 2:21 | | 33:3 34:8 | 14:18 23:21 | unfortunately ... | violations (2) | wcblaw@aol.c... | | 39:23 46:21 | 50:15,16 | 48:18 | 12:16,17 | 2:6 | | 48:12 51:2 | trouble (1) | United (1) | Virginia (2) | weaken (1) | | times (2) | 51:4 | 3:17 | 6:24 7:13 | 37:5 | | 20:25 32:17 | troubled (1) | unrelated (3) | vis-a-vis (1) | WEISS (1) | | timing (1) | 49:13 | 18:21 19:20 | 44:23 | 2:8 | | 15:22 | true (2) | 22:14 | volumes (1) | Welcome (1) | | Title (1) | 37:15 62:11 | untrue (3) | 35:3 | 3:4 | | 39:17 | try (1) | 13:23,24,25 | voluminous (1) | well-articulate... | | today (6) | 44:22 | unusual (1) | 53:14 | 46:6 | | 6:12 9:16,22 | trying (4) | 8:24 | voluntarily (2) | well-reasoned ... | | 23:9 25:4 | 15:19 18:22 | unwise (1) | 5:14 59:23 | 26:12 | | 58:24 | 26:17 32:20 | 34:20 | voluntary (2) | well-respected... | | told (2) | turn (1) | use (4) | 5:16 60:2 | 27:14 | | 33:24 40:15 | 10:17 | 10:25 37:12 | vs (17) | well-written (1) | | TONJA (2) | two (11) | 44:17 46:11 | 1:6 3:18 20:22 | 57:6 | | 2:12,15 | 3:9 4:10 8:16 | utilize (1) | 20:22 25:10,21 | went (6) | | tonja@tonjah... | 9:13 13:3 24:8 | 61:3 | 25:25 26:23 | 9:12 12:2 13:5 | | 2:15 | 26:13 37:20 | utilized (1) | 27:8,17,21 | 32:24 50:25 | | torrent (1) | 41:10 42:20 | 56:11 | 28:2,22 29:7 | 54:5 | | 43:24 | 46:11 | | 29:14 50:19 | West (4) | | tort (5) | | V | 59:10 | 1:17 2:5,9,19 | | 30:10,13,17,25 | U | value (3) | | Westlaw (3) | | 39:22 | ulterior (1) | 10:9 55:21 57:7 | W | 10:23,25 26:23 | | tortious (2) | 48:10 | various (1) | W (2) | Westlaw's (1) | | 12:1,8 | ultimately (3) | 33:6 | 2:3,6 | 10:20 | | torts (2) | 29:25 35:5 | vel (1) | wait (2) | we're (7) | | 12:7,15 | 37:16 | 20:6 | 45:10 51:6 | 9:15 11:9 34:17 | | tortured (1) | uncover (2) | vendettas (1) | walking (3) | 35:15 36:6 | | 33:5 | 38:3,7 | 40:22 | 41:3,4,4 | 56:8 57:17 | | touch (1) | underlying (2) | venue (1) | want (10) | we've (5) | | 17:9 | 19:20 47:25 | 39:7 | 4:7,19 6:19 | 12:14 13:14 | | track (1) | understand (4) | versus (1) | 10:10 17:9 | 23:10 47:17 | | 61:2 | 24:13 32:9 36:5 | 39:7 | 18:9 24:20 | 48:10 | | transcript (4) | 36:11 | vexatious (2) | 31:17 38:14 | whatsoever (2) | | 1:12 7:6 61:2 | 36:20 | 30:8 44:12 | 58:20 | 3:22 4:3 | | 62:11 | understandab... | viable (1) | wanted (5) | Whoa (1) | | treated (1) | 36:20 | 5:24 | 4:21 10:3 43:17 | 45:10 | | 60:2 | understands (1) | victim (1) | 49:9 50:8 | William (2) | | trial (6) | 10:21 | 7:4 | warning (1) | 2:21 22:23 | | 6:17 7:9 49:18 | undertake (1) | 7:4 | 38:15 | withdraw (1) | | 49:24 51:1 | 28:15 | victims (5) | wasn't (1) | 38:1 | | 57:16 | undertook (1) | 6:4 7:19,23 8:17 | 37:19 | withdrawn (1) | | tried (3) | 33:7 | 9:7 | way (1) | 54:4 | | 48:13,20 61:3 | undisputed (3) | victim's (2) | 42:4 | withdrew (1) | | | 18:12,14 48:15 | 8:5,11 | | | | 33:13 | 35:25 | 39:24 | 4 | 9 | | ----------------- | ------------- | ---------------- | ---------------- | ---------------- | | witness (1) | year (1) | | 4 (2) | 9C (1) | | 26:1 | 6:18 | 2 | 20:22 27:17 | 1:17 | | Wolfe (49) | years (6) | 20 (2) | 4:23 (2) | 954.467.1223 (1) | | 10:4,8 11:8,12 | 4:10 11:20 | 3:19 16:7 | 1:15 61:20 | 2:14 | | 12:25,25 13:4 | 12:19 34:9,10 | 2000 (1) | 40 (1) | 961 (1) | | 13:5,9 14:3,5,6 | 41:24 | 27:18 | 16:8 | 25:10 | | 14:24 15:20 | yesterday (1) | 2007 (1) | 4068409 (1) | | | 16:1,1 23:22 | 19:13 | 25:11 | 26:23 | | | 23:25 24:2 | young (2) | 2009 (5) | | | | 25:15 26:13 | 6:23 34:10 | 9:4,4 18:11 19:3 | 5 | | | 27:5,5 28:6,9 | Yurko (2) | 28:23 | 502009CA040... | | | 29:16,19 31:2 | 27:21 28:2 | 2012 (2) | 1:2 | | | 32:8,11 33:21 | | 26:23,23 | 561.655.4777 (1) | | | 36:16 39:25 | Z | 2014 (2) | 2:5 | | | 40:3,5 42:17 | zealously (1) | 1:15 62:14 | 561.659.8300 (1) | | | 49:15 51:5,14 | 41:22 | 205 (1) | 2:10 | | | 52:15 54:13 | | 1:16 | 561.686.6300 (1) | | | 55:22 56:24,24 | 1 | 2139 (1) | 2:19 | | | 57:2,7 60:9,12 | 12 (1) | 2:18 | 57.105 (3) | | | 61:7 | 34:10 | 250 (2) | 17:3,4 22:6 | | | word (1) | 13 (1) | 2:4,8 | 574 (1) | | | 52:7 | 12:19 | 27 (1) | 29:9 | | | words (2) | 1324 (1) | 1:15 | 598 (1) | | | 24:7 51:17 | 28:22 | 273 (1) | 59:10 | | | work (1) | 14 (3) | 27:8 | | | | 44:5 | 12:19 34:9 | 278 (1) | 6 | | | worked (1) | 58:23 | 29:9 | 6th (1) | | | 50:11 | 1400 (2) | 29th (1) | 6:18 | | | world (1) | 2:4,9 | 62:14 | 611 (1) | | | 44:18 | 15 (1) | | 28:22 | | | worst (1) | 34:9 | 3 | 65 (1) | | | 50:9 | 15th (1) | 3:00 (2) | 59:10 | | | wouldn't (1) | 1:1 | 1:15 3:2 | | | | 36:9 | 16 (1) | 301 (1) | 7 | | | wrap (2) | 59:1 | 2:13 | 7th (1) | | | 46:10 47:5 | 18 (1) | 315 (1) | 2:13 | | | (2) | 20:23 | 2:13 | 702 (1) | | | 27:20 28:2 | 1917 (1) | 33301 (1) | 27:17 | | | written (1) | 11:14 | 2:14 | | | | 5:20 | 1984 (1) | 33401 (3) | 8 | | | wrongful (1) | 27:22 | 1:17 2:5,9 | 8:45s (1) | | | 26:2 | 1991 (1) | 33409 (1) | 58:24 | | | | 29:9 | 2:19 | 835 (1) | | | | 1992 (1) | 356 (1) | 27:8 | | | | 59:11 | 25:10 | 839 (1) | | | Yeah (3) | 1999 (1) | | 27:17 | | | 10:12 19:9 | | | | | J. Appellant, v. JEFFREY EPSTEIN, Appellee. ### FOURTH DISTRICT COURT OF APPEAL STATE OF FLORIDA CASE NO.: 4D14-2282 L.T. Case No.: 502009CA040800 / # ANSWER BRIEF OF APPEL AFREY EPSTEIN S'S'C' TONJA HADDAD COLE Florida Bar No.: 176737 C TONJA HADDAD, PA .) 315 SE 7th Street Suite 301 Fort Lauderdale on 33301 (954) 467-12 (954) 337- facsimile) Tonja@ dad.com JOHN BERANEK Fla. Bar No.: 0005419 AUSLEY & , P.A. 123 South Calhoun Street P.O. Box 391 (zip 32302) Tallahassee, FL 32301 Telephone: (850) 224-9115 Facsimile: (850) 222-7560 jberanek@ausley.com | TABLE OF CITATIONS | i i | | ---------------------------------- | ------- | | PRELIMINARY STATEMENT | 1 | | STATEMENT REGARDING ORAL ARGUMENT | 2 | | STANDARD OF REVIEW | 2 | | JUDGMENT, AS THE LITIGATION PRIVIL | I AR TO | | PROSECUTION | X 7 | | CONCLUSION | 24 | # TABLE OF CONTENTS #### TABLE OF CITATIONS #### Cases | 125 So. 3d 309 (Fla. 3d DCA 2013) | 12 | | ---------------------------------------------------------------------- | -------------------------------------------------- | | American Nat. Title & Escrow of Florida, Inc. v. Guarantee Title & Tru | Co., | | 748 So. 2d 1054 (Fla. 4th DCA 1999) DelMonico v. Traynor, | 13 | | 116 So. 3d 1205 (Fla. 2013) | 10, 18, 19 | | Echevarria, McCalla, Raymer, | & Frappier v. | | 950 So. 2d 380 (Fla. 2007) Fridovich v. Fridovich, | passim | | 598 So. 2d 65 (Fla. 1992) | 13, 17, 22 | | 573 So. 2d 1007 (Fla. 4th DCA 1991)54 | 1 | | v. Attorney's Title Insurance | d, | | 132 So. 3d 1191 (Fla. 3d DCA 2 v. BellSouth Telecom | ) 12 | | 372 F.3d 1250 (11th Cir. | 14 | | LaFrance v. U.S. Bank Na na | sociation, | | 141 So. 3d 754 (FI 4th A 2014) | 2 | | LatAm Invests., L C v. land & Knight, LLP, | | | 88 So. 3d 24 la. 3 DCA 2011) | 3 | | Levin, M | o/&, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., | | 639 S.. (Fla. 1994) | passim | | McCul v. Kubiak, | | | 4D13 1 8 (Feb. 18, 2015) | 9, 10 | | 2013 WL 6628619 (Dec. 16, 2013) | 14 | | Montejo v. Memorial Medical Center, Inc., | | | 935 So. 2d 1266 (Fla. 4th DCA 2006) | 13 | | Olson v. | | | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | -------------------- | | 961 So. 2d 356 (Fla. 2d DCA 2007) Pardo v. State, | 17, 22 | | 596 So. 2d 665 (Fla. 1996) Procacci v. Zacco, | 12 | | 402 So. 2d 425 (Fla. 4th DCA 1981) R.H. Ciccone Properties, Inc. v. JP | 21 Chase Bank, N.A., | | 141 So. 3d 590 (Fla. 4th DCA 2014) Rivernider v. Meyer, Case Number 4D14-819 839 So. 2d 702 (Fla. 3d DCA 2002) Steinberg v. Steinberg, 152 So. 3d 572 (Fla. 1st DCA 2014) Valdes v. GAB Robins, 924 So. 2d 862 (Fla. 3d DCA 2006) | A 15 6, 9 | | Volusia County v. Aberdeen at Ormon,04:, 760 So. 2d 126 (Fla. 2000) Wolfe v.~, | .P., 4> | | 128 So. 3d 67 (Fla. 3d DC v. Yurko, | passim | | 446 So. 2d 1162 (Fla. 5 €'A 1984) | 19, 20, 21 | | Z IIIrly | | # PRELIMINARY STATEMENT This matter arises from the Appellant, appeal of the trial court's fmal Order granting Appellee's Motion for Summary Judgment. In this brief, the parties will be referred to as they appear before this Court Aaitt r by the party's proper name. References to the Record will be made by ,.< u of (T. ), which is the transcript of the Summary Judgment Hd (R. ), is the record proper. The denotation to the record • e followed by the page number where the item to which Appe ferring may be found. p c References to the Appellant's Brief will b c by (Brief p.\_) and followed by the page number to which Appell S ' , ttifg. Emphasis will be that of Appellee unless otherwise noted. #### STATEMENT REGARDING ORAL ARGUMENT Appellee respectfully requests that this Court permit oral argument in this matter. The issue presented by this appeal; whether the litigation privilege absolutely bars a claim for malicious prosecution when all of the relies actions upon which the Plaintiff in support of his lawsuit occurred during Ar k ourse of litigation and relate directly to the litigation, is such that oral ar 49 p ,ould be of crucial importance on this issue. c # STANDARD OF RE In reviewing an order granting final s dgment by the trial court, Court must apply the de novo stand o view. DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013); Volusia t nty . Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)• ra e v. U.S. Bank National Association, 141 So. 3d 754 (Fla. 4th DCA 201 e trial court's finding that the litigation privilege applies to mali c • s p secution claims, as well as its finding that the litigation privilege w li able specifically to claims for malicious prosecution and a process against Epstein, constituted issues of law. DelMonico, 116 So. 3d at 1211 (stating the determination of whether the litigation privilege extends to the alleged tortious conduct is "a pure question of law."); Wolfe v. , 128 So. 3d 67, 68 (Fla. 3d DCA 2013) (affirming the determination that the litigation privilege applied to plaintiff's malicious prosecution case on a motion for judgment on the pleadings); LatAm Invests., LLC v. Holland & Knight, LLP, 88 So. 3d 240, 243 (Fla. 3d DCA 2011) (affirming the finding that the litigation privilege applied to plaintiff's abuse of process claim on a motion to dismiss), r . denied, AS 81 So. 3d 414 (Fla. 2012). # STATEMENT OF THE CASE AND FL") In December 2009, Appellee, Jeffrey Epstein suit against Scott Rothstein ("Rothstein") and Appellant, s, based upon Epstein's justifiable belief at the time of filing his ci i Ct at these two individuals, and other unknown partners of theirs ;ES o teein, Rosenfeldt, Adler, engaged in serious misconduct involving * publicized illegal Ponzi scheme operated through their law firm. R imself admitted to, and was convicted for, this Ponzi scheme, part o h featured the use of civil cases that had been filed against Epste b pellant, Rothstein's law partner. e to Epstein's original lawsuit, filed a Counterclaim, and after a sefies of dismissals and four (4) revisions, stated two causes of action against Epstein; Abuse of Process and Malicious Prosecution. Epstein denied liability as to those claims and asserted various affirmative defenses thereto, including the immunity afforded to Epstein for both causes of action under the litigation privilege. In September 2013, Epstein filed his Motion for Summary Judgment, asserting therein, among other arguments, that both causes of action were barred by the litigation privilege. The trial court, after allowing the parties to fully brief the issues and present an exhaustive and extensive oral Atcgum ent, granted Summary Judgment in favor of Appellee, relying u it e acts as 3d 67 (Fla. 3d DCA 2013), and all of the Florida Supreme Court cas 1 ereby. presented by the parties, the binding case Wolfe v. Both in his Motion for Summary Judgm i at oral argument on the Motion Appellee argued, and for Malicious Prosecution was base IlicSel ., upon acts that occurred during the that cause of action course of the litigation. (R. his discovery responses t qu stions directly germane to his causes of action incontrovertibly revea at both of causes of action were barred by wards's Fourth Amended Counterclaim and the litigatio e as all of the actions purported to give rise to cause on occurred during the course of, and were related to, the litigation. The trial court, applying the litigation privilege to Appellant's causes of action, correctly determined that the litigation privilege absolutely barred both causes of action. As stated in Wolfe v. 128 So. 3d 67 (Fla. 3d DCA 2013), and the binding Florida Supreme Court cases cited therein, Florida's litigation privilege provides to all persons involved in judicial proceedings a privilege from civil liability for actions taken in relation to those proceedings, including in an action for abuse of process or malicious prosecution. Id. In reliance upon these cases and the facts presented, the trial court granted ummary Judgment in Epstein's favor. As SUMMARY OF THE ARGUMENT, O The solitary issue before this Court is whether the liLn privilege applies to a cause of action for malicious prosecution w alltdks upon which Appellant relies in support of his cause of action occy f ng the course of litigation and related directly to the litigation. Un is we " -established Florida Supreme Court precedent, the litigation privil McCalla, Raymer, pier v. to all causes of action. See Echevarria, , 950 So. 2d 380 (Fla. 2007); Levin, Middlebrooks, Movestifitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994). Addi the Third District Court of Appeal in Wolfe v. , 128 So. 3d d DCA 2013), concluded that the litigation privilege applies to a cause of ction for malicious prosecution. Appellant seeks reversal of the final Summary Judgment as to his Malicious Prosecution claim, erroneously arguing that the litigation privilege does not apply to a cause of action for malicious prosecution, and that Wolfe is in conflict with pre-existing law on this issue. See Brief, p. 6. Appellant does, however, concede that Summary Judgment was proper as to his Abuse of Process claim, see Brief, p. 10, n.2, and that there are no disputed issues of fact presented. Brief, p. 10. Appellee submits that the trial court's Order granting his Ak otion for Summary Judgment was proper, as the binding decisions by the da upreme Court in Echevarria, McCalla, Raymer, & Frappir, e, 950 So. 2d 380 (Fla. 2007) and Levi,,, Middlebrooks, Moves & eN??A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994), the decision by District Court of Appeal in Wolfe v. , 128 So. 3d 67 (Fla. A 013), and the recent per curiam affirmance by the First District Court o p 1 in Steinberg v. Steinberg, 152 So. t 3d 572 (Fla. 1st DCA 2014), ate the trial court's ruling. has not identified a single Florid Cbca decided after either the Wolfe decision or the k Florida Supreme Co c lIges upon which the Wolfe court relied in rendering its ruling that li s that the trial court erred. Accordingly, Summary Judgment case. The undisputed facts, as presented both through Appell Summary Judgment and at oral argument on his Motio nC) germane to the issues in this matter, absolutely barred both of Judgment be granted. Wolfe v. Forema The trial court properly ruled that Summary Judgment was w in this Motion for ith the law established 14c) litigation privilege causes oit • mandating that Summary \\ 16. 3d 67 (Fla. 3d DCA 2013); Echevarria, McCalla, Raymer, Barrel Fppier v. M, 950 So. 2d 380 (Fla. 2007); Levin, Middlebrooks, ir res' Glitchell, P.A. v. U.S Fire Ins. Co., 639 So. 2d 606 (Fla. 1994). In hiGy c, wholly disregards the incontrovertible fact that his own plea nd discovery responses undeniably establish that all of the actions abdwhich he complains in his lawsuit occurred solely during the ### ARGUMENT #### THE TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT, AS THE LITIGATION PRIVILEGE IS A BAR TO APPELLANT'S CLAIM BASED ON MALICIOUS PROSECUTION. 1 In a appellee argued in his Summary Judgment motion that Appellant could n isfy all of the elements of a Malicious Prosecution claim, including that the s it by Appellee against Appellant resulted in a bona-fide termination in favor of Appellant. Appellee took a voluntary dismissal without prejudice, which does not constitute a bona-fide termination, one of the six essential elements of a malicious prosecution claim. See Valdes v. GAB Robins, 924 So. 2d 862 (Fla. 3d DCA 2006). Appellant neither addresses nor submits argument as to Appellee's assertion, so this is not addressed in this Answer Brief. Rather, Appellee reasserts all argument as delineated in his original Motion for Summary Judgment and relies thereupon. course of, and related directly to, the litigation, rendering them absolutely protected by the litigation privilege. As unequivocally stated in the decision of Wolfe v...1, 128 So. 3d 67 (Fla. 3d DCA 2013), and the Florida Supreme Court cases cited therein, Florida's litigation privilege provides to all persons involved in judicial proceedings an absolute privilege from civil i ility for actions taken in relation to those proceedings, including in an 4R for, abuse of process or malicious prosecution. Id. The Florida Suprerlfe explained the following policy reasons for the litigation privilege: In balancing policy considerations, must be afforded to any act occ judicial proceeding, regardles defamatory statement or o alleged misconduct at issu s o aw., lo the proceeding. t absolute immunity ring the course of a ether the act involves a ous behavior such as the as the act has some relation to Levin, Middlebrooks, Mov4s & tyi chell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) (emp added). Undeniably, a malicious prosecution claim is considered "o rtious behavior" as described by the Florida Supreme Court in Levin. Cuu ously, Appellant mischaracterizes the Wolfe court's application of the litigation privilege to a malicious prosecution claim as novel, stating in the first paragraph of his Summary of Argument that "there is apparently no other decision in the country that reaches the conclusion that the majority did in Wolfe." See Brief, p.8. However, in the case of Steinberg v. Steinberg, 152 So. 3d 572 (Fla. 1st DCA 2014), after considering the appellant's identical challenges to Wolfe, the First District Court of Appeal issued a per curiam affirmance of the trial court's application of the litigation privilege to defeat a malicious prosecu ; • n claim. Appellant was undoubtedly aware of the Steinberg decision, as it counsel who not only represented the Appellant in Steinbe initial brief from the Steinberg case in the insta> as a Submission in Support of Motion Court's announced intention of grant submission adopted "all legal ar, Ap ellant's filed his own Supplementary nsideration of the Trial \\t Ifnary Judgment, and in that tained within the attached appellate brief." (R. 798). Thus Edwar the Steinberg argument a part of this case. Further, this Court' Ciec nt opinion in McCullough v. Kubiak, 4D13-4048 (Feb. 18, 2015) is ins . In McCullough, this Court approved the trial court's dismissal o s f action for both defamation and negligence based upon the litigat 'vile ge. Id. In so doing, this Court examined the litigation privilege and conducted an analysis of the seminal cases upon which Appellee relies in support of his assertion that the trial court's ruling was proper; Levin, Middlebrooks, Mabie, =, Maya & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) and Echevarria, McCalla, Raymer, & McCollough; out of court statements to potentia nor the court were present. Id. at 1209. This Court continued its analysis, distinguishing DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013), a case upon which Appellant relies in sup argument that the trial court erred. This Court emphasized the that existed in DelMonico (i.e., out of court statements to poC neither all parties nor the court were present), ands icl it did not exist in V where neither all parties ow scenario" is likewise absent in the instant case, and as such this C Id affirm the trial court's Order.2 Frappier v. 950 So. 2d 380, 384 (Fla. 2007), and correctly recognized and applied the litigation privilege. Id. Brief endea gue that Wolfe conflicts with pre-existing case law on this issue, p "ding a history of the litigation privilege and citing to cases that purportedly that the litigation privilege is inapposite to a cause of action for 0 \*c s prosecution. However, all of the cases cited were, incon y, decided before the Wolfe decision, and most of them before Levin and Echevarria. See Brief, pp. 11-26. Wolfe is directly on point with the facts and law presented in the case at hand, and conducts a detailed analysis of the seminal 2 Rivernider v. Meyer, Case Number 4D14-819 is another trial court decision applying the litigation privilege to a malicious prosecution claim. This decision is on appeal to this Court and is set for Oral Argument on April 28, 2015. Florida Supreme Court cases germane to the issues. In Wolfe, the Third District Court of Appeal affirmed the trial court's order granting a motion for judgment on the pleadings in an abuse of process and malicious prosecution action, finding that the litigation privilege applied to, and barred, both causes of action. Id. emphasis added). The court's focus was on whether the acts alleged "oc u ddfing the course of a judicial proceeding" and had "some relation tothe, ding." Id. at 68 (citing Levin, 639 So. 2d at 608). Likewise, in c uc its analysis of the cause of action for malicious prosecution, whic ith the instant case, was based on the filing of a complaint, the Wo tated that it is: guided and restrained by the guage and application of the privilege articulated by th Supreme Court in Levin and Echevarria. In Levin, th Supreme Court held that absolute immunity must be aff y act occurring during the course of a judicial proceeding ong as the act has some relation to the proceeding." Levin, So. 2d at 608. In Echevarria, the Court reiterated its b application of privilege "applies in all causes of action, statgto ell as common law." Echevarria, 950 So. 2d at 380-81. Id. at lfe court continued, unequivocally stating that: It i difficult to imagine any act that would fit more firmly within the parameters of Levin and Echevarria than the actual filing of a complaint. The filing of a complaint, which initiates the judicial proceedings, obviously "occurs during the course of a judicial proceeding" and "relates to the proceeding . . . Because the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be "free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct," we are obligated to conclude that the act complained of here — the filing of the complaint — is protected by the litigation privilege. Wolfe v. , 128 So. 3d 67, 68 (Fla. 3d DCA 2013) (empIk ta added). Additionally, the Wolfe decision was recently cited with app lied upon in v. Attorney's Title Insurance Fund, 132 So. d 1 1 (Fla. 3d DCA 2014) and American Federated Title Corp. v. Gre auig, P.A., 125 So. 3d 309 (Fla. 3d DCA 2013) in matters involvin tion privilege. In the instant case, the trial court was legally bo Ss " Third District Court of Appeal's decision in Wolfe, as the Florida Court stated unequivocally that a "trial court may not overrule orrrtcc om the controlling decision of an appellate court. Pardo v. State ,t96 ivSo. 2d 665 (Fla. 1996). Just as olfe, ill of the actions upon which Appellant relied in his lawsuit against occurred during the course of, and were directly related to, the litigatio t the Summary Judgment hearing, the following colloquy occurred: THE COURT: Anything outside of the judicial as potentially or allegedly obnoxious? And as Mr. brought out earlier the allegations being horrifying, egregious, no matter how you might identify those allegations that were quickly withdrawn, anything that you're aware of that went on outside of the judicial process that is being alleged here? MR. Not that is being alleged here, Your Honor, no. THE COURT: Mr. M, anything that's being alleged here that goes outside of the broad spectrum that I have read into the record that has its genesis in Echevarria and was quoted by the Wolfe Third District Court of Appeal opinion? MR. There's nothing alleged. (T. 53-54). Accordingly, as explicitly stated in own pjakigs and discovery responses, and as conceded by counsel at ent, the events giving rise to purported claims against E y urred solely in w the course of, and were related to, the litigation, jus o urred in the Wolfe case, mandating Summary Judgment. Wolfe v. For 8 So. 3d 67 (Fla. 3d DCA 2013); American Nat. Title & Escrow Inc. v. Guarantee Title & Trust, Co., 748 So. 2d 1054, 1056 (Fl A 1999). See also Montejo v. Memorial Medical Center, Fridovich v. Fridovi h, 5 o. 2d 65 (Fla. 1992) (stating that the litigation privilege "ari e ately upon the doing of any act required or permitted by law in ; curse of the judicial proceedings or as necessarily preliminary thereto. . So. 2d 1266, 1269 (Fla. 4th DCA 2006); Moreover, the Federal courts, in applying Florida's litigation privilege, have recognized that it has been "expansively interpreted" by Florida courts. In the Bankruptcy Court, applying Florida law, avowed: The rule of absolute immunity extends to the parties, judges, witnesses, and counsel involved and related to the judicial proceedings. DelMonico v. Traynor, 50 So.3d 4, 7 (Fla. Dist. Ct. App. 2010). The Florida Supreme Court found that absolute litigation was designed to allow a party to 'prosecut[e] or defena awsuit without fear of having to defend their actions in a su civil action for misconduct.' Echevarria, McCalla, R Frappier v. a, 950 So.2d 380, 384 (Fla. 2007); s al Levin, 639 So.2d at 608 C[A]bsolute immunity must o ed to any act occurring during the course of a judicial p [...], so long as that conduct has some relations to the g.'). To this end, Florida courts have expansively the `relates to' requirement. See Rolex Watch U. c. v. Rainbow Jewelry, Inc., 2012 WL 4138028 (S.D. Fla. S 12) (`[t]he decision to file a lawsuit clearly relates to a u a proceeding'); DelMonico v. Traynor, 116 So.3d 1205 19 (Fla. 2013) (privilege applies when statements or act either in front of a judicial officer or in pleading or d filed with the court or quasi-judicial body'). Id. at \*2. See also Jdp cr n v. BellSouth Telecom's., 372 F.3d 1250, 1276 (11th Cir. 2004). Qrder on Appellee's Motion for Summary Judgment, the trial court also correctly determined that "the cases cited by [in his opposition to Summary Judgment] involved malicious prosecution claims stemming from actions filed by the party themselves [sic], not counsel. In the instant case, it was conceded that all filings were done by an attorney in good standing with the Florida Bar, rather than by an individual party." See Trial Court Order granting Summary Judgment. (R. 1202-1205). The law is clear that the Wolfe holding protects both the firm that filed suit and the individual plaintiff, as it unequivocally states that "the Florida Supreme Court has clearly and unambiguously Aft; ated, not once, but twice, that the litigation privilege applies to all causestacti ns, and specifically articulated that its rationale for applying the p lc • rdo• o broadly was to permit the participants to be `free to use their bes • t in prosecuting or defending a lawsuit without fear of having to d w actions in a subsequent civil action for misconduct.' Wolfe v. 28 So. 3d 67 (Fla. 3d DCA 2013). See also Levin, 639 So. 2d a t]he immunity afforded to statements made during the course of a j i eeding extends not only to the parties, but to judges, witnesses and un as well.") In fact, in R.H. Ciccone Properties, Inc. v. JP ank, N.A., 141 So. 3d 590 (Fla. 4th DCA 2014), this Court cone ized that "c[t]he purpose of the litigation privilege is to `free [parti m litigation] to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.' Id. at 593 (quoting Levin, 639 So. 2d at 608). Appellant correctly acknowledges that in Echevarria, McCalla, Raymer, & Frappier v. 950 So. 2d 380 (Fla. 2007) the Florida Supreme Court not only reaffirmed the Levin decision but also expanded it to include "any act occurring during the course of judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious conduct ... so long as the act has some relation to the proceeding," finding that the policy consideratio were the "perceived necessity for candid and unrestrained communica in judicial proceedings." Echevarria, 950 So. 2d at 384; Brie 0 . Echevarria unequivocally recognized that "Levin plainly esta ' at It\]he rationale C bitt behind the immunity afforded to a defamatory t is equally applicable to judicial proceeding," and that "the nature of the underlying disputt 1 does not matter." Id. at 384. The Echevarria court concluded mg that "[t]he litigation privilege applies across the board to action lorida." Id. at 384 (emphasis added). other misconduct occurring during the c \\ Lacking any r t precedent to refine the broad expansion of the litigation p xpressly demanded by Echevarria or the application of the litigat vi ege to malicious prosecution claims as required by Wolfe, Appellant asks this Court to ignore Echevarria and Wolfe, urging that application of the litigation privilege to a malicious prosecution claim would completely eviscerate the cause of action for malicious prosecution. However, that very same argument was flatly rejected in both Wolfe and Steinberg. The Wolfe decision, as well as the Levin and Echevarria decisions, merely hold that "absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some rela A • n sto the proceeding." Levin, Middlebrooks, Moves & Mitchell, P.A. v. U ire . Co., 639 So. 2d 606, 608 (Fla. 1994). As a result, if a party se- ng a cause of action involving acts that neither occurred during, no \<51 tion to, the judicial proceeding, a cause of action sounding in int prosecution may still be viable. See Fridovich v. Fridovich, 598 ir\*\\T (Fla. 1992); Olson v. 961 So. 2d 356 (Fla. 2d DCA 2007). (S ., Moreover, the Florida Court judiciously pointed out in Levin that "other tortious conduct du tigation" is still subject to available remedies even though it may be rive Ir g a!'. The Supreme Court held that misconduct by counsel or parties • ligation is "left to the discipline of the courts, the Bar assoc. an the state." Id. at 608 (emphasis added). As such, contrary to Appellant's assertion, there is neither an absolute bar to all malicious prosecution actions nor an evisceration of adequate legal remedies created by the Wolfe case and its progeny. Rather, these cases only extend a well-established privilege "to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding." Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). See also Echevarria, 950 So. 2d at 38 , Wolfe v. 28 So. 3d 67, 68 (Fla. 3d DCA 2013). Consequent) as on the undeniable holdings in Wolfe and the cases cited therein, absolutely protected by the litigation privilege properly granted. actions were ary Judgment was \* h. Additionally, Appellant attempts \\ o is position by referencing the most recent Florida Supreme Co tee 4t'sion ., applying litigation privilege, DelMonico v. Traynor, 116 05 (Fla. 2013), which held that statements made outside of the fo 1 j icial process are not protected by the absolute litigation privile e, ther enjoy a qualified privilege. Id. at 1217. The DelMonico rt ruling, however, does not limit the Levin and Echevarria rulin eta, it is specific to the extremely confined facts in that matter, which were described by the Florida Supreme Court as a "narrow scenario;" referring to out of court statements to potential witnesses where neither both parties nor the court were present. Id. at 1209. Further, the Delmonico decision clarified that the existence of judicial oversight in a proceeding is an important reason behind the requirement to apply the privilege to cover acts that occur during the course of, and are related to, the judicial proceeding, stating: "when weighing whether to apply the absolute privilege to that factual scenario, the Court considered that the `safeguards' arising from the `comprehensive control exercised by the a1 judge whose action is reviewable on appeal' and the availability o er remedies through which the trial court could mitigate the harm. . ' Ot 1215 (citing Fridovich, 598 So. 2d at 69). Accordingly, the DelMonico decision a c y recognized a litigation privilege where, as in the instant case, the u cial oversight, but distinguished the "narrow scenario" under which t4e ati .,tion privilege would not be applied. Inasmuch as that "narrow DelMonico is factually di ishable and inapposite to the instant case, and as such its narrow holdi s no bearing on, and should not be considered by, this (S" Court. is wholly absent in the case at bench, ry Appellant cites Yurko, 446 So. 2d 1162 (Fla. 5th DCA 1984) in support of his assertion that the litigation privilege is inapplicable to a malicious prosecution claim. However, such reliance thereupon is misplaced. First, Appellant's characterization of Levin as impliedly approving the survival of a malicious prosecution claim in the case is completely unfounded. In Levin, in support of its holding to apply the litigation privilege to a tortious interference claim, the Florida Supreme Court analyzed and cited thereto solely for two propositions: "that the torts of perjury, slander, defamation and similar proceedings that are based on statements made in connection with a judicial procee A • g mn are not t actionable;" and that "[r]emedies for perjury, slander, and the c itted during judicial proceedings are left to the discipline co atshurts, the bar association, and the state," and as such "other tortio o t occurring during litigation is equally susceptible to that same 1 ." Levin, Middlebrooks, Moves & Mitchell, P.A. v. U.S. Fire Ins * So. 2d 606, 608 (Fla. 1994) (citing =, 446 So. 2d at 1164). ingly, Levin neither held nor cited to for the proposition to jt litigation privilege was inapplicable to a malicious prosecution claiC Second, re arcailhf what Appellant requests this Court to infer about as a It its citation in Levin, the Florida Supreme Court subsequently e A ff made antly clear in Echevarria that "the nature of the underlying dispute simply does not matter," and mandated that the litigation privilege be broadly applied "across the board to actions in Florida." Echevarria, 950 So. 2d at 384. Accordingly, no matter how the underlying cause of action may be framed, the express guidance from both Levin and Echevarria is that the litigation privilege would be applied to immunize any and all conduct occurring during the course of judicial proceedings so long as it occurred in, and had some relation to, the proceeding. Id. at 384. Finally, is factually distinguishable, because unlike in the instant case, included a cause of action against the attome ho filed the alleged malicious prosecution, not the represented Plaintiff. , So. 2d at 1163. Consequently, this Court should give no conside • fr is case. ) Likewise, Appellant's reliance on Graham-Ec P ci Beach Academy v. M, 573 So. 2d 1007 (Fla. 4th DCA 1991) as misplaced. Graham-Eckes is a per curiam affirmance in whi rth District Court stated, in its single concluding sentence: "[w]hil 6 a lic 11 nt's argument is persuasive, we hold that its proper cause of actio ave been one for malicious prosecution and affirm on the authority o c, Pr cacci v. Zacco, 402 So. 2d 425 (Fla. 4th DCA 1981)." Id. at 1008. ith it is undeniable that Graham-Eckes was decided bef c 4:5 c pvarria, Levin, and Wolfe. Further, Procacci v. Zacco, 402 So. 2d 42 DCA 1981), the case upon which the Graham-Eckes court relied in issuing its decision, immunized from suit the "malicious publication" of false statements because they were made during the course of a judicial proceeding. As to those false statements, this Court avowed: "Appellants contend that a proper notice of lis pendens, based on a recorded instrument and filed pursuant to Florida law, is a publication much like a pleading or other statement made in the course of a judicial proceeding and therefore, they argue, it enjoys the same immunity. We agree." Id. at 427. Appellant's reliance on Fridovich v. Fridovich, 598 So. 2d 65 (F . 1992) is also erroneous, as in Fridovich the Florida Supreme Court spec if y c eluded that only a qualified privilege is applicable when private Is voluntarily make defamatory statements "to the police or the c) 's orney prior to the institution of criminal charges." 598 So. 2d a ( phasis added). See also Olson v. 961 So. 2d 356 (Fla 2007) (litigation privilege is inapplicable because basis of lawsu out of statements made to a police officer prior to the initiation o nal proceeding). In stark contrast to both the Fridovich and Olson cas ►ere **the conduct occurred prior to any judicial proceedings, the acti pon which the Appellant relies as the basis of his malicious p n claim in the instant case were made in and were integral to the j proceedings, rendering Fridovich and Olson inapposite. Further, Appellant's citation to dicta from a footnote in SC! Funeral Services of Florida, Inc. v. Henry, 839 So. 2d 702 (Fla. 3d DCA 2002) is equally inapplicable because it is a Third District Court of Appeal case that did not involve a claim for malicious prosecution and was decided before the Third District Court of Appeal decided** Wolfe, in which it expressly held that the litigation privilege is applicable to a claim for malicious prosecution. Finally, Appellant erroneously submits and analyzes cases from other jurisdictions in further support of his assertion that the litigation privile does not bar a malicious prosecution claim. Appellant's argument is ss, as it is incontrovertible that reliance upon these cases is misguide& risdictions are not controlling upon this Court, especially when there • in g Florida precedent c directly applicable hereto. Additionally, the Flo ation Privilege is a court urisdictions is of no import and has no bearing on this matter. M er, inding Florida precedent does not, contrary to Appellant's asse a malicious prosecution claim, but rather affords an absolute privil EC e )t acts that occur within, and have a relation to, a judicial proceedin 28 So. 3d at 68; Levin, 639 So. 2d at 608; Echevarria, 950 So. 2d e Florida Supreme Court, the First District Court of Appeal, and t istrict Court of Appeal have all undeniably extended the litigation privilege to circumstances such as those present in the case at bench; where all of the acts upon which a party relies in support of a malicious prosecution claim occur within the litigation. Consequently, Summary Judgment was proper. created doctrine, and as such, case law #### CONCLUSION In reliance upon the argument submitted above and the case law cited herein, Appellee submits that the trial court's Order granting Appellee's Motion for Summary Judgment should be affirmed. # CERTIFICATE OF TYPE SIZE AND STYLE This Brief is typed using Times New Roman 14 point, proportionately spaced. which is not c) CERTIFICATE OF SER I HEREBY CERTIFY that a copy was e on February 25, 2015: •• ly served to the following William B. Searcy Denny Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Blvd West Palm Beach, FL 334C) wbk@searcylaw.com Jaff j Fistos 425 N. Ft. Lau brad@pa tojustice.com an, P.L. Ave., Ste. 2 FL 33301 Mark Nurik Law Offices of Mark S. Nurik 1 E. Broward Blvd., Ste. 700 Ft. Lauderdale, FL 33301 marc@,nuriklaw.com M. Burlington urlington & Rockenbach, P.A. Courthouse Commons/Suite 350 444 W. Railroad Avenue West Palm Beach, FL 33401 pmb@FLAppellateLaw.com kbt®FLAppellateLaw.com Fred Haddad Fred Haddad, P.A. 1 Financial Plaza, Ste. 2612 Ft. Lauderdale, FL 33301 haddadfm®aol.com Jack Goldberger Atterbury, Goldberger & Weiss, P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach, FL 33401 jgoldberger®agwpa.com W. Chester Jr. W. Chester Jr. P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach, FL 33401 wcblaw@aol.com wcbdiane@yahoo.com +6s /s/ John Beranek JOHN BERANEK Fla. Bar No.: 000 AUSLEY & P.A. 123 South Cal P.O. Boisc (zip 32302) Tall s L 32301 Te : (850) 224-9115 (850) 222-7560 ek@ausley.com livan@ausley.com (secondary) /s/ Tonja Haddad Coleman Tonja Haddad Coleman, Esq. Florida Bar No.: 176737 Tonja Haddad, PA 5315 SE 7th Street Suite 301 Fort Lauderdale, Florida 33301 954.467.1223 954.337.3716 (facsimile) Tonja@Tonjahaddad.com Jayme®Tonjahaddad.com