Draft: efta02771001

JEFFREY EPSTEIN,¶

Plaintiff,¶

VS.¶

SCOTT ROTHSTEIN individually, and J, individually.¶

Defendants.¶

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

CASE NO. 502009CA040800VOCXMBAG¶

COO n >C: CO¶

PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPOC'ES 1;3 AND FOR SANCTIONS co:<m (.11¶

Plaintiff Jeffrey Epstein, by and through his undersigned counsel and pursuant to Rule 1.380 of the Florida Rules of Civil Procedure, hereby moves this Court to enter an order compelling the Defendant IMO, yet again, to provide responses to Plaintiff's Request for Production. Plaintiff likewise requests that this Court order sanctions against Defendant Edwards for his direct and flagrant disregard of this Court's previous Order dated April 10, 2012. In support thereof, Plaintiff states:¶

INTRODUCTION¶

On March 9, 2012, Plaintiff Epstein served upon Defendant a Motion to Compel and to Amend and Lift a Protective Order. A true and correct copy of Plaintiff's Motion is attached hereto as "Exhibit A." On April 10, 2012, this Court entered an Order on Plaintiff's Motion to Compel, stating that "within twenty (20) days of the date of this Order, the Defendant shall produce any non-privileged documents as identified in Paragraph 13 of ME [sic] Motion to Compel and Amend Protective Order." See Order entered April 10, 2012, a true and correct copy of¶

which is attached hereto as "Exhibit B." The Order further avowed that "[n]othing in this Order shall constitute any waiver or ruling upon any privilege that may apply to said documents and the Defendant and/or others may file an objection to any such documentation on any privilege grounds and shall file a privilege log specifically identifying such documents." See Exhibit B (emphasis added). Accordingly, all responses were due on or before April 30, 2012.¶

CS'S On May 9, 2012, Plaintiff received Defendant untimely response to the afore-referenced Request to Produce. A perfunctory • of the items provided by establishes that his response is incomplete,and ent. response contains nothing more than partial electronic communications between himself and three or four of the countless reporters with whom he had communications during the relevant time period. Further, Defendant's response irrefutably corroborates that he wholly disregarded this Court's Order. Accordingly, Defendant has failed to comply with this Court's jo produce the items responsive to Plaintiffs Request to Produce, as well as any opportunity afforded to him therein to provide any privilege log with respect afore-referenced request. As such, and as demonstrated more fully below, Plaintiff' requested order is warranted.¶

MEMORANDUM OF LAW¶

This Court has the authority to rule on this Motion without Oral Argument. See First City Developments of Florida, Inc. v. Hallmark of Hollywood Condominium Ass'n, 545 So. 2d 502 (Fla. 4th DCA 1989). Defendant was Ordered by this Court to provide¶

[a]ll c-mails, data, correspondence, and similar documents dated April 1, 2008 through August 1, 2010 by and between J. . Scott W. Rothstein, Marc, Nurik, Cara, Mike Fisten and any on of he following regarding or mentioning Jeffrey Epstein in any way: (a) the U.S. Attorney's Office, (b) the State Attorne 's Office, (c) the Federal Bureau of Investigation, (d) and (e) any other news employees or reporters.¶

See Exhibit A. This Court also permitted Defendant to assert any privilege grounds and "file a privilege log specifically identifying such documents. Exhibit B. not only failed to provide the items requested, but also failed to provide a privilege log as mandated. It is well-settled law that if csky a alleges that information requested from it is protected by privilege, then a privi log must be prepared and )14/ attached to the response, or the privilege is aivatVSee TIG Insurance Corp. of America v. 799 So. 2d 339 (Ha. 4 2001) (stating that failure to provide a reason for privilege and prepare a '...., riNage log constitutes waiver of the privilege) (emphasis added).¶

Here, fails to either respond to the Request to Produce or assert any privilege as Court A court has the inherent power to implement and enforce effective judicial ings pursuant to pretrial rules. As such, when a party fails to comply with a >etrial order, a court has broad discretion in determining sanctions. First Republic Corp. of America v. Hayes, 431 So. 2d 624 (Fla. 3d DCA 1983). Rule 1.381 i) of the Florida Rules of Civil Procedure provides that "[for purposes of this subdivision an evasive or incomplete answer shall be treated as a failure to answer." FLA. R.Civ. P. 1.380(3). This Rule likewise governs failure to comply with a prior court order and mandates that such failure "may be considered a contempt of the court." FLA. R.Civ. P. 1.380(b). Accordingly, Defendant inapposite and patent disregard for this Court's Order mandates sanctions.¶

Finally, Plaintiff certifies that he "in good faith, has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." FLA. R.CIV. P. 1.380. A true and correct copy of the correspondence sent to Defendant regardin s Motion is attached hereto as "Exhibit C." Pursuant to Rule 1.380 of the Florida Rules of Civil Procedure, Epstein is entitled to reasonable attorney's fees ) ecessitated by Defendant's flagrant disregard of both this Court's Order and the afore- ferenced Rules of Civil Procedure.¶

CO¶

Accordingly, for all of the reaso lineated above and in reliance upon the applicable law cited herein,ilaintiff Jeffrey Epstein respectfully requests that this rs, V Court, yet again, Order Defendant to respond in full to Plaintiff's Request to Produce, award attorney's fees as sanctions, and such other and further relief as this Court deems proper.¶

+Li¶

Tonja Haddad Coleman, Esq.¶

Fla. Bar No.: 0176737 LAW OFFICES OF IOWA HADDAD, PA 524 South Andrews Avenue Suite 200N Fort Lauderdale, Florida 33301 954.467.1223 954.337.3716 (facsimile) Tonja®tonjahaddadpa.com¶

WE HEREBY CERTIFY that a true and correct copy of the foregoing was served upon all parties listed on the attached service list, via facsimile and US Mail, this May 15, 2012.¶

Tonja Haddad Coleman, Esq. Ha. Bar No.: 0176737¶

SERVICE LIST¶

CASE NO. 502009CA040800XXXXMBAG¶

Jack Scarola, Esq. Searcy Denney Scarola et al. 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409¶

Jack Goldberger, Esq. Atterbury, Goldberger, & Weiss, PA 250 Australian Ave. South Suite 1400 West Palm Beach, FL 33401¶

Marc Nurik, Esq. I East Broward Blvd. Suite 700 Fort Lauderdale, FL 33301¶

E ljaff . eWeissinEgs..Fi 425 N Andrews Avenue Suite 2 Fort Lauderdale, Florida 33301S9¶

Lilly Ann M, Esq. -_-) LS Law Firm Four Seasons Tower 15th Floor 1441 Brickell Avenue Miami, Florida 33131¶

IN THE CIRCUIT COURT OF TILE 151° JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶

CIVIL DIVISION AG CASE NO. 502009CA040800XICOCMB Judge David F.¶

JEFFREY EPSTEIN,¶

Plaintiff/Counter-Defendant,¶

v.¶

SCOTT ROTHSTEIN individually, and J. individually,¶

Defendants/Counter-Plaintiffs.¶

PLAINTIFF JEFFREY EPSTEIN'S MOTION TO COMPEL AND AMEND FROTECTIVE ORDER¶

Plaintiff, Jeffrey Epstein ("Epstein"), by through his undersigned counsel, moves this ''' Court to compel the production of docunen from Defendant, J. ("M") and to amend and lift a protective order relating to a subpoena to the Bankruptcy Trustee. The grounds for this Motion are as follows:¶

• 1. On April 12,<1. 90 Epstein sent a Request to Produce to requesting the following documents:, Mie r Scott W. Rothstein, William Berger, and correspondence, memos, or similar documents between Adler and/or any attorney or representative ofRRA and any investor or third party (person or entity) regarding Jeffrey Epstein Aich mentions Jeffrey Epstein (including Mike Fisten, Kenneth Jenne, or Rick (Rich) Fandrey).
  • 2. On May 11, 2010, served his response to this request by stating:
    • 3. Objection as to communications to or from investigators as that is protected by the work-product and/or attorney-client privilege.

Exhibit A¶

3. Although did not object to producing all documents requested, he did not produce any documents responsive to this request. Nor did who asserted privilege, prepare a privilege log related to this request. It is important to note that this request went to documents within possession and control as opposed to documents that were produced from the Bankruptcy Trustee.

4. The documents requested in 43 were also requested by means o C sub)eena to the Bankruptcy Trustee dated April 17, 2010. After several motions ancla14/ compel, finally prepared a privilege log relating to communications to andethe investigators among ,Asi . others. However, did not produce any e-mails or doetmients between the lawyers at RRA and (a) the U.S. Attorney's Office, (b) the Statiittorney's Office, (c) the Federal Bureau of r% Investigation — to which he had not objected and for which he did not claim a privilege on his privilege log.

5. did not produce any documents by and between RRA lawyers or representatives and third parties such as a reporter, and any other news employees or reporters. has not identified any communication with reporters on his privilege log.

6. On J 3, 2011, Epstein sent a second subpoena requesting the following documents from Bankruptcy Trustee:

7. Any and all email communications by/between any attorney and/or employee o the former Rothstein law firm, including but not limited to, Scott Rothstein, dler William Berger, Michael Fist Ken Jenne, David Christina Kittemian, Gary aan l and on the one hand, and any Boden, Deborah Andrew B Richard Fandry, of the following regarding Jeffrey Epstein:

• a) U.S. Attorney's office;
• b) State of Florida Attorney's Office
• c) Federal Bureau of Investigations;
• d) City of Palm Beach Police Department;
• e) Any investigator working for the State of Florida; Any attorney, law firm and any agent of any attorney or law firm who represented any individual with a claim against Jeffrey Epstein.

7. On April 1, 2011, Epstein sent a Request to Produce Ac to t wards seeking documents that support contention that Epstein has waived his Fifth endment right by speaking to reporters. ( mks..)

8. On May 5, 2011, responded witt< objections and claims of privilege. did not prepare a privilege log even though t1Z: ordered him to do so.

9. On July 14, 2011, this Court entesetiSk granting a Motion for Protective Order without prejudice relating to the records on the subpoena to the Bankruptcy Trustee based on scope and relevancy. A copy of the Order is attached to this Motion as Exhibit I.

10. On November 11, 2011, filed his Renewed Motion for Summary Judgment and a lengthy Statentaf Undisputed Facts in which he purported to identify ) "summary judgment evidence" on which he relied. Such "undisputed facts" reference and/or quote the Palm Beach Police Incident Report (see ¶3), correspondence from the U.S. Attorney's Office to Epstein (see ¶¶5, 19, 25), correspondence between the U.S. Attorney's Office and Epste4ounsel (see ¶¶6, 20, 27) to support argument that he acted in good faith and that Epstein "violated his agreement with the U.S. Attorney's Office..." (¶28). also quotes correspondence from the U.S. Attorney's Office to Epstein's counsel (see ¶6) specifically in support of his contention that there was a "joint attempt to minimize Epstein's civil exposure."

(Id). also cites from a proposed plea agreement (see ¶20) in support of his contention that Epstein engaged in witness tampering.¶

11. has also referred to statements allegedly made by Epstein to a reporter in ¶T80-81 of his Undisputed Statement of Facts. contends Epstein's alleged statements to reporters waives his Fifth Amendment rights.

12. As a result of relying on communications with the vernment and reporters as part of his Renewed Motion for Summary Judgment and to st port his contention that Epstein has waived his Fifth Amendment rights by speaking with reporters, discovery is highly appropriate on these issues and should be permitted.

13. Epstein wishes to amend and following records: to the Trustee to obtain the

All e-mails, data, correspondence, and similailsmentsWril 1, 2008 through August 1, 2010 by and Rothstein, Marc Nurik, Cara Mike Fisten and any one of the J. Scott W. following regarding or mentioning JefTrey Epstein in any way: (a) the U.S. Attorney's Office, (b) the State Attorney's Office, (c) the Federal Bureau of Investigation, (d) Conchita Samoff, and (e) any other news employees or reporters.

¶

14. The described documents are not privileged, so no in camera review is necessary. Epstein's request has Bien narrowed so that compliance and production are not overly broad or tS" burdensome. The request is relevant and necessary in order for Epstein to defend MI Renewed Motion for Summary Judgment, including MI contention that Epstein has waived his Fifth Amendment rights by discussions and communications with media, news employees or reporters.

15. Based on the above, Epstein requests the following relief:

a. An Order directing [REDACTED] to produce the above-described records that are in his possession and control;¶

b. An Order directing the Bankruptcy Trustee to produce the records described above and amending the prior protective order so as to allow the Bankruptcy Trustee to produce the records described above; and¶

c. That the Order contain a specific deadline for compliance. Epstein requests compliance within twenty (20) days of the date of the Order so as to allow time for any additional discovery in advance of Rothstein's deposition and in advance of the hearing on [REDACTED] Renewed Motion for Summary Judgment.¶

16. The undersigned counsel certifies that he has and will continue to attempt to resolve this matter with counsel for [REDACTED] without the need of a hearing.

WHEREFORE, Plaintiff, JEFFREY EPSTEIN, requests the Court grant its Motion to Compel and Amend Protective Order for the reasons set forth above.¶

Respectfully submitted,¶

Joseph L. Ackerman, Jr.
Florida Bar No. 235954
[REDACTED] BURNETT, P.A.
901 [REDACTED] Point West
777 South Flagler Drive
West Palm Beach, Florida 33401
Telephone: (561) 802-9044
Facsimile: (561) 802-9976
and
[REDACTED] E. Knight
Florida Bar. No. 607363¶

[REDACTED] BURNETT, P.A.
Espirito Santo Plaza, 14th Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201
Attorneys for Plaintiff Jeffrey Epstein¶

CERTIFICATE OF SERVICE¶

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via U.S. Mail on this 9^th day of March, 2012 to: Jack Scarola, Esq., Searoy Denney Scarola Barnhart & Shipley, P.A., 2139 Palm Beach Lakes Blvd., West Palm Beach, FL 33409; Jack Alan Goldberger, Esq., Atterbury, Goldberger & Weiss, P.A., 250 Australian Ave. South, Suite 1400, West Palm Beach, FL 33401-5012; and Marc S. Nurik, Esq., Law Offices of Marc S. Nurik, One East Broward Blvd., Suite 700, Fort Lauderdale, FL 33301.¶

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

CIVIL DIVISION AG CASE NO. 502009CA040800XXXXMB Judge David F.¶

JEFFREY EPSTEIN,¶

Plaintiff/Counter-Defendant,¶

v.¶

SCOTT ROTHSTEIN individually, and J. individually,¶

Defendants/Counter-Plaintiffs.¶

"4 ORDER ON PLAINTIFF JEFFREY EPSTEIN'S MOTION TO COMPEL AND AMEND PROTECTIVE ORDER¶

THIS MATTER came before the Court on Plaintiffleffrey Epstein's Motion to Compel and Amend Protective Order in the above-styled case. This Court having reviewed the Motion, having heard argument of counsel, ra being otherwise fully advised in the premises, it is hereby¶

) ORDERED AND ADJUDGED as follows:, The Motion seeks to Compel a Request to Produce and to modify this Court's prior Protective Order in regard to specific requests of the Defendant MM. In addition, the Motion seeks authority to direct a subpoena to the Bankruptcy Trustee of the former law firm of the Defendants and ROTHSTEIN. The Court finds that the Amended Request for Production and request for subpoena, does request documents which the Court finds are either relevant and/or reasonably calculated to lead to admissible evidence. Therefore, within twenty (20) days of the date of this Order; the Defendant shall produce any non-privileged documents as identified.in Paragraph 13 of EDIWARDS' Motion to Compel and Amend Protective Order. In addition, the Plaintiff EPSTEIN is given authority to issue a subpoena to the Bankruptcy Trustee requesting the identical documents that are non-privileged.¶

Nothing in this Order shall co sti to an waiver or ruling upon any privilege that may apply to said documents and the Defendant and/or others may file an objection -to any such documentation on any privilege grounds and shall file a privilege log specifically identifying such documents.¶

Epstein v. Rothstein and [REDACTED]
Case No. 502009CA040800XXXXXMB/Division AG
Order on Epstein's Motion to Compel and Amend Protective Order
Page 2 of 2¶

DONE AND ORDERED in [REDACTED] at West Palm Beach, Palm Beach County, Florida
this _____ day of April, 2012.¶

SIGNED AND DATED
APR 10 2012
JUDGE DAVID F. CROW¶

HONORABLE DAVID F. [REDACTED]
CIRCUIT JUDGE¶

Copies furnished to:¶

[REDACTED] L. Ackerman, Jr., Esq.
[REDACTED] Burnett, P.A.
901 [REDACTED] Point West
777 South Flagler Drive
West Palm Beach, FL 33401¶

Lilly Ann [REDACTED], Esq.
The L•S Law Firm
Four Seasons Tower, 15^th Floor
1441 Brickell Avenue
Miami, FL 33131¶

Jack Scarola, Esq.
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409¶

Jack A. Goldberger, Esq.
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue, South, Suite 1400
West Palm Beach, FL 33401-5012¶

Marc S. Nurik, Esq.
Law Offices of Marc S. Nurik
One E. Broward Blvd., Suite 700
Fort Lauderdale, FL 33301¶

[REDACTED] J. [REDACTED], Esq.
[REDACTED], Jaffe, Weissing, [REDACTED], Fistos & Lehrman, P.L.
425 North Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301¶

524 South Andrews Avenue
Suite 200 North
Fort Lauderdale, FL 33301¶

954.467.1223 telephone
964.337.3716 facsimile
tonja@tonjahaddadpa.com¶

May 11, 2012¶

Via US and Electronic Mail¶

Jack Scarola, Esq.
Searcy Denney et al.
2139 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409¶

Re: Epstein v. Edwards et al.¶

Dear Mr. Scarola:¶

We are in receipt of your purported responsive documents to Paragraph 13 of our Motion to Compel and have reviewed same. Please note that the request to which you were Court-ordered to respond required you to provide the following:¶

"All e-mails, data, correspondence, and similar documents dated April 1, 2008 through August 1, 2010 by and between [REDACTED] J. [REDACTED], Scott W. Rothstein, Marc Nurik, Cara [REDACTED], Mike Fisten and any one of the following regarding or mentioning Jeffrey Epstein in any way: (a) the U.S. Attorney's Office, (b) the State Attorney's Office, (c) the Federal Bureau of Investigation, (d) Conchita [REDACTED], and (e) any other news employees or reporters." See Paragraph 13 of Motion to Compel.¶

However, you provided little more than multiple copies of correspondence responsive to subparts (d) and (e): As such, please be advised that if we do not receive items responsive to the actual request; to wit: all e-mails, data, correspondence, and similar documents dated April 1, 2008 through August 1, 2010 by and between [REDACTED] J. [REDACTED], Scott W. Rothstein, Marc Nurik, Cara Holmes, Mike Fisten and any one of the following regarding or mentioning Jeffrey Epstein in any way: (a) the U.S. Attorney's Office, (b) the State Attorney's Office, and (c) the Federal Bureau of Investigation on or before Monday, May 14, 2012, we will be left with no choice but to, yet again, file all appropriate motions with the Court and seek any and all sanctions available, including those to which you will be vulnerable for violation of a Court order.¶

Sincerely,
TONJA HADDAD, PA¶

Tonja Haddad Coleman
for the firm¶