IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶
Case No. 50-2009CA040800XXXXMBAG¶
JEFFREY EPSTEIN,¶
Plaintifl/Counter-Defendant,¶
v.¶
SCOTT ROTHSTEIN individually, and J. , individually,¶
Defendants/Counter-Plaintiff.¶
PLAINTIFF/COUNTER-DEFENDANT'S MOTION TINUANCE OF TRIAL AND TO EXTEND PRE-TRIAL DEADLINES HE ALTERNATIVE BIFURCATION 0¶
Plaintiff/Counter-Defendant Jeffrey Eps laintiff) moves under Rule 1.460 of the Florida Rules of Civil Procedure for a bri commencing on December 5, 2017 Plaintiff moves under Rule 1.2 limit the first stage of the mgs to: (i) Plaintiff's case and damages against Defendant Scott Rothstein and (ii) t abs of probable cause element of Defendant/Counter-Plaintiff J. CI n t") malicious prosecution claim. 444a te4P 1continuance of the special set 10-day trial xtend the pre-trial deadlines. In the alternative, orida Rules of Civil Procedure to bifurcate the trial and¶
BACKGROUND¶
AI ugh this case has been pending since December 2009, in May 2014, this Court granted final summary judgment in Plaintiff's favor. Defendant appealed, and the Fourth District¶
I Counsel for Plaintiff has contacted counsel for Defendant, who opposes this Motion.¶
Court of Appeal reversed and remanded in November 2015, with the Mandate issuing in December 2015. The matter was sent to the Florida Supreme Court and, in large part, there were no substantive filings in this case until June 2017, after the Supreme Court declined jurisdiction. Defendant noticed this matter for trial shortly before the Supreme Court's decision and, in July 2017, the Court entered its trial order, special setting a ten-day trial less than five mon hs away.¶
INTRODUCTION¶
The trial should focus on a handful of narrow issues: (1) Plainti es caused by Rothstein's2 criminal conspiracy; (2) whether Defendant can pm intiff never had probable cause — both at the inception of filing suit and thro Vt proceeding -- to allege Defendant's connection to Rothstein's criminal activiti, ) ether the proceeding against Defendant concluded with a bona fide termination ' Si v, (4) whether Defendant can prove that Plaintiff acted with malice; and (5) wheth en t was damaged. "San /614c m¶
c ' d about the relevancy of printed First, Defendant must have chan his or published media about him associating his e • laintiff's because, despite an "irrelevant" objection to an interrogatory served in epte r 2017, Defendant, one month later in October 2017, disclosed a damages ex t focuses on just this type of publication damage. This expert disclosure, chanp¢ Defe dant's position regarding the discovery sought by Plaintiff from "irrelevant" lyly relevant," requires that Plaintiff have an opportunity to obtain answers to the di efendant refused to answer, take the deposition of Defendant's expert, obtain a rebuttal expert, and review the claim that more than nine million people read Plaintiff's allegations against Defendant in more than 100 news articles. Florida courts do not condone, nor does Plaintiff believe Defendant's counsel intended, trial by ambush. A brief continuance allows for Defendant¶
2 The Clerk of this Court entered a default against Rothstein on January 21, 2010.¶
to amend the discovery answers and Plaintiff to conduct the necessary discovery as to the new damages claim.¶
Second, it has become clear that Defendant has no intention of litigating the five simple issues listed above. Instead, he intends to re-litigate each of his clients' cases (and other alleged victims' cases) against Plaintiff; return to his prosecutor days and try a criminal case distracting the jury with inflammatory allegations of sexual misconduct that have nothin with the elements of his malicious prosecution claim. The Court should not allo Is of matters that have been concluded or arc irrelevant within this one. (See ge tiff's Motion in Limine.) If the Court allows Defendant to pursue this trial c s ,i n Plaintiff either needs more time to prepare for trial or the trial should be bifur, 4 'n anner Plaintiff proposes.¶
"Sd PLAINTIFF HEARD THIS CO illkfl, r AND CLEAR Following the Court's clear and un vice at the October 3, 2017, hearing to fortify lead counsel in the preparation defe e of his claim, on October 13, 2017, Plaintiff retained new trial counsel, who a e case on November 1, 2017. Plaintiff also retained a team of lawyers from the Gu r la firm as trial support. None of the things Plaintiff is asking for in this Motion is b ck of manpower. Even using all of these resources, there is still not enough time et ev hing that is needed done before the December 5, 2017, trial date. Important) and his trial counsel will not seek another continuance. We will be ready to try the days.¶
ARGUMENT¶
I. PLAINTIFF NEEDS ADDITIONAL TIME TO PREPARE FOR TRIAL DUE TO EVENTS OUTSIDE OF HIS CONTROL.¶
There are several important tasks that must be addressed before trial. First, Plaintiff needs to identify and hire an expert to address the extent to which Plaintiff's allegations damaged¶
Defendant's reputation and the testimony of Defendant's newly disclosed expert who will be testifying on this subject. Second, counsel need to interview the attorney who filed the initial Complaint on Plaintiff's behalf and review his files. Third, Defendant claims he may call more than 150 witnesses at trial, but only a handful of those witnesses have been deposed, and Plaintiff's counsel need time to ask the Court to have Defendant identify the witnesses who will actually be called at trial so Plaintiff can determine if their depositions are necessary, an nduct the depositions. Fourth, Defendant has, to date, not produced crucial eviden ci to Plaintiff's Motion to Compel and Plaintiff's counsel cannot properly prepare f tr a I the Court rules. For example, Defendant has only disclosed the anticipated tes y 1 of the 159 witnesses t he identified on his Witness List and provided incom ct information (i.e., he only provided physical addresses, not c-mail addresses o 44;:it numbers). In addition, Defendant has not provided relevant and important ti about his damage claim and relevant information about his expert's recent! ova report. As will be explained in Plaintiff's Supplemental Motion to Compel, against Defendant's Fourth direct the path the trial wi ation and the documentation are necessary to defend ounterclaim. Finally, substantive motions, which will eed to be resolved by the Court, but the hearing on those motions is currently set o few days before the trial is to commence. It is difficult for Plaintiff to trial without knowing which case will be tried. Properly p¶
y, a motion for continuance has three requirements: it must be in writing, it must be signed by the movant, and it must state all of the facts that entitle the movant to a continuance. Fla. R. Civ. P. 1.460. See also Fla. R. Jud. Admin. 2.545(e) ("Continuances should be few, good cause should be required, and all requests should be heard and resolved by a judge."). This motion¶
satisfies these requirements and Plaintiff has made this request in good faith. The Court should grant the motion in the interest of justice.¶
a. Exaerts¶
Throughout the pendency of this litigation, Plaintiff has served multiple discovery requests to determine how Defendant's reputation was damaged and how he suffered monetarily. On October 20, 2017, Defendant served his expert's untimely report3 which revealed fendant's expert relies on the same type of documents Defendant early claimed were "' t nt."" Because of this new development, Plaintiff needs to obtain the discovery t objected to as irrelevant, retain a rebuttal expert witness and have the expert¶
Specifically, in interrogatories, Plaintiff asked De ut his use of Plaintiff's name reputation. Defendant responded that the mg e .41 to promote his practice and the evidence Defendst to rely on to prove damage to his Ss , irrelevant":¶
¶
- Please describe in social media outlet, materials, or any o your law fum, o ever advertised, Epstein, and inch and every disse inati Pe to an identify with specificity every log, printed materials, seminar or published media on which you, iation with which you are affiliated has es, or otherwise places the name of Jeffrey detailed description and the date(s) of each ference, advertisement, placement, publication, or promotion, identify the persons or groups of om the same was made, and state the locations where state whether or not the materials used in connection with reference, advertisement, placement, publication, mination, or promotion are in your possession or control, or are
3 Pursuant to the Court's July 20, 2017, Order Specially Setting Jury Trial, the parties were required to disclose 60 days prior to trial (i.e., by October 6, 2017) expert witnesses along with (1) the subject matter about which the expert is expected to testify; (2) the substance of the facts and opinions to which the expert is expected to testify; (3) a summary of the grounds for each opinion; (4) a copy of any written report; and (5) the expert's curriculum vitae. Defendant, however, did not provide his expert's report to Plaintiff until October 20, 2017 — two-weeks after the deadline to do so.¶
still available on line or in print, and identify the persons or website from whom such materials may be obtained.¶
RESPONSE: Objection: The information sought is not relevant, material or reasonably calculated to lead to the discovery of admissible evidence. ...¶
- Please describe with particularity any and all evidence, circumstances and events upon which you rely in asserting that your reputation was damaged as alleged in your Counterclaim, including, without limitation, specifically describing how that damage attributable to Epstein's lawsuit against you.
RESPONSE: The allegations of Epstein's maliciou Complaint are defamatory per se.¶
Plaintiff's Interrogatories dated September 5, 2017, and Defendant's ses dated September 25, 2017, Nos. 34 and 35.¶
Just recently, however, Defendant disclosed thr pert that he is relying on this same type of information that he earlier refused to¶
¶
- The defaming statemen g Mr. J. with the illegal activities o tt Rothstein as a result of Mr. Jeffrey Epstein's la a a nst Mr. have been disseminated to at 1 7 e media or other sites in 104 separate stories or articles 'nod 9,669,542 potential daily visitors since the laws rt w ed to the date that I filed this report, inclusive.
Dr. Bernard J. Jansen, Oc 0, 2017, Report, ¶ 15.¶
Because published necting Defendant to Plaintiff, Plaintiff now needs the discovery Defendant claimeA elevant and also must identify and retain an expert to testify about, among other things, the number of people who may have read articles discussing Plaintiff's allegations tying Defendant to Rothstein's Ponzi scheme, and the impact this may or may not have had on Defendant's reputation. The expert will need time to study and investigate Defendant's responses to the previously objected to discovery (which the Court should order be produced forthwith) and late disclosure and change in position regarding the relevance of printed or Defendant's expert's analysis, perform his own study, draft his own report, and assist Plaintiff's counsel in preparing to take the deposition of Defendant's expert. Plaintiffs expert's deposition will need to be taken as well. All of this cannot be accomplished in a single month.¶
b. Plaintiff's Original Counsel¶
A central focus of this case is what Plaintiff knew at the time the original Co plaint was filed and his legitimate basis for bringing this lawsuit. Plaintiff was represen obert D. Critton, Jr., at the time the original Complaint was filed. Plaintiffs new t" (:) el needs time to review Mr. Critton's files and speak with Mr. Critton to ensure th s case is properly presented to the Court. Unfortunately, Mr. Critton has a hea 'a eland has been unable to devote the time necessary to review his files and refresh 11 If ion before being interviewed. Mr. Critton expects it will be a few weeks before he \n v that time to this matter.¶
Plaintiff's counsel cannot fairly and e Present Plaintiff's case without speaking with Mr. Critton, and the continuance s d be nted. CI Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991) ("[W] ' ted facts reveal that the physical condition of either counsel or client prevents fair uate presentation of a case, failure to grant a continuance is reversible error.").¶
c. With¶
Defe as identified 159 witnesses on his Sixth Amended Witness List, but only a handfi witnesses have been deposed. Plaintiff has moved to exclude the testimony of twenty witnesses and one category of witness that Defendant describes as "witnesses expected to be presented." (Omnibus Motion in Limine at 21-22.) In addition, until the Court determines what case will be tried (i.e., Defendant's malicious prosecution claim or Defendant's "victim" cases), it is premature, a practical impossibility, and a financial burden to both parties to take the¶
depositions of more than a hundred witnesses. The hearing on these trial issues, however, is not set until November 29, 2017 — just a few days before the trial date. If this Court denies Plaintiff's motion to exclude the witnesses—despite their lack of firsthand knowledge concerning the elements of Defendant's malicious prosecution claim and any affirmative defenses Plaintiff may offer—then the Court should order Defendant to identify the witnesses he actually, intends to present at trial and grant a continuance so Plaintiff can take their depositions and dPRe 'ne what, if anything, they know regarding the elements of Defendant's claim. hyeNy ent, Plaintiff's counsel will not have sufficient time from the date of the Court's I to conduct this substantial deposition discovery.¶
d. Pre-Trial Deadlines¶
If the continuance is granted, Plaintiff also tr Sis ort< t'ill9he " current trial deadlines be reset based upon the new trial date, including allow' ts, ies to file amended Exhibit and Witness Lists and to identify experts.¶
II. THE COURT SHOUL ATE THE TRIAL IN THE INTEREST OF EFFICIENCY AND T ZE THE RISK OF PREJUDICE TO PLAINTIFF.¶
Despite these obstacles, tiff could be prepared to proceed to trial as scheduled on December 5, 2017, if th urt bifurcated the proceedings and limited the first stage to: (i) Plaintiff's an ages arising from Rothstein's conspiracy to commit abuse of process and (ii) intiff had probable cause to commence these proceedings against Defendant. This Cou furtherance of convenience or to avoid prejudice[,] may order a separate trial of .. . any separate issue." Fla. R. Civ. P. 1.270(b). "[B]ifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party." Johansen v. Vuocolo, 125 So. 3d 197, 200 (Fla. 4th DCA 2013) (citation and quotation marks omitted).¶
Bifurcation on the terms proposed by Plaintiff is appropriate here. There is substantial overlap between (i) the facts that Plaintiff will present to explain Rothstein's Ponzi scheme and the damages he incurred as a result of it and (ii) the facts known to Plaintiff when he commenced these proceedings against Defendant, i.e., the facts this Court will consider when it determines whether Defendant has proved Plaintiff lacked probable cause. See Alamo Rent-A- ar, Inc. v. Mancini, 632 So. 2d 1352, 1357 (Fla. 1994) (jury decides disputed issues o but court determines whether those facts establish probable cause) (citation omitted) ents, the jury will have to determine the dollar amount of Plaintiff's damages ca events, the jury will have to decide what Plaintiff knew abouttet onzi scheme when he commenced these proceedings so the Court can determ' t h r Plaintiff "had a reasonable belief, based on facts and circumstances known to ' Ss, , validity of his claim." See v. Yurko, 446 So. 2d 1162, 1166 (Fla. 5th DC fming probable cause) (citing v. Sabella, 88 So. 2d 910 (Fla. 1956)). tein. And in all¶
Bifurcating the trial and d g Plaintiff's case and damages against Rothstein and the related issue of what Plaint when he commenced these proceedings will expedite the resolution of Defendant's us prosecution counterclaim, minimize the parties' expenses, and conserve judicial win and the (malici urces. If the Court holds that Plaintiff had probable cause, Defendant cannot over. See v. GCG Beverages, Inc., 502 So. 2d 1217, 1218 (Fla. 1986) ution has six required elements, and the absence of any one of them is fatal) (citation omitted). If that happens, the parties will not have wasted time and money preparing for trial on the other elements of Defendant's counterclaim (expenses that would include the fees associated with deposing Defendant's proposed witnesses, since their testimony would no longer be necessary) and the Court, likewise, will not have devoted time and attention to issues that had no effect on the outcome of the case.¶
Finally, bifurcation avoids unnecessary prejudice to Plaintiff. Defendant obviously, under the guise of establishing the proceeding against Defendant was brought with malice, intends to relitigate every part of his clients' (and other victims') claims against Plaintiff But this evidence is simply not relevant to the narrow issue of whether Plaintiff reasonably believed on public information from the government and investors about Rothstein's PontPonzi Ilegations and news reports that Rothstein had used Defendant's cases against Plain olrelf third parties into investing in non-existent settlements, Defendant's abusive di very, and Defendant's commencement of a 159-count lawsuit in federal court, as er served, when a duplicative case was already pending in state court—that he ha mst Defendant. If the Court allows Defendant to tar Plaintiff with inflammatorya stt' f sexual battery before the jury makes its findings about what Plaintiff knew whe fiS g it against Defendant, it is likely that the jurors will ignore relevant evidence and ' Plaintiff just because they despise him. Bifurcation of the trial avoids this unneces p udice to Plaintiff and a pure legal action to receive a fair trial.¶
CONCLUSION¶
Plain es this Court to grant his motion for a brief 90-day continuance of the parties' trial d extension of the pm-trial deadlines. In the alternative, Plaintiff moves this Court to bifurcate the upcoming trial and limit the first stage of the proceedings to (i) Plaintiffs case and damages against Rothstein and (ii) the absence ofprobable cause element of Defendant's malicious prosecution claim.¶
CERTIFICATE OF SERVICE¶
I certify that the foregoing document has been furnished to the attorneys listed on the Service List below on November 6, 2017, through the Court's e-filing portal pursuant to Florida Rule of Judicial Administration 2.516(b)(1).¶
LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, Florida 33401 (561) 727-3600; (561) 727-3601 [fa]
¶
By. is/ScottJ. Link¶
Scott J. Link (FBN 60299 Kara Berard Rockenbac 5;10 903) Angela M. Many (FEtIt2 Primary: Scott@linkrockliw.com Primary: Ka inkrocklaw.com Primary: Second Seco' inlcrocklaw.com Eservice6idinkrocklaw.com nkrocklaw.com¶
eS eeS I 'Counsel fo r PPlaintiff/Counter-Defendant "s aw ffrey Epstein¶
4 RVICE LIST¶
Jack Scarola Searcy, Denny, Scarola, 2139 Palm Beach es B and West Palm Beac 334 law.com Co-Cot Defendant/Counter-Minty). J. 'wards & Shipley, P.A.¶
Nichole J. Segal Burlington & Rockenbach, P.A. Courthouse Commons, Suite 350 444 West Railroad Avenue West Palm Beach, FL 33401 njsaILAAppellateLaw.com kbt®FLAppellateLaw.com Co-Counseltiendant/Counter-Plaintiff¶
J.¶
| <p>J. [REDACTED], Jaffee, Weissing, [REDACTED], Fistos & Lehrman, P.L. 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, FL 33401 <a href="mailto:staff.efile@pathotojustice.com">staff.efile@pathotojustice.com</a> <i>Co-Counsel for Defendant/Counter-Plaintiff</i> [REDACTED] J. [REDACTED]</p> | <p>Marc S. Nurik Law Offices of Marc S. Nurik One E. Broward Boulevard, Suite 700 Ft. Lauderdale, FL 33301 <a href="mailto:marc@nuriklaw.com">marc@nuriklaw.com</a> <i>Counsel for Defendant Scott Rothstein</i></p> |
|---|---|
| <p>Tonja Haddad Coleman 315 S.E. Seventh Street, Suite 301 Ft. Lauderdale, FL 33301 <a href="mailto:tonja@tonjahaddad.com">tonja@tonjahaddad.com</a> <a href="mailto:efiling@tonjahaddad.com">efiling@tonjahaddad.com</a> <i>Co-Counsel for Plaintiff/Counter-Defendant</i> <i>Jeffrey Epstein</i></p> | <p>Fred Haddad Haddad & Navarro, PLLC 1 Financial Plaza, Suite 2612 Fort Lauderdale, FL 33394 <a href="mailto:dee@haddadandnavarrolaw.com">dee@haddadandnavarrolaw.com</a> <i>Co-Counsel for Plaintiff/Counter-Defendant</i> <i>Jeffrey Epstein</i></p> |
| <p>W. Chester [REDACTED], Jr. W. Chester [REDACTED], Jr. P.A. 250 Australian Avenue S., Suite 1400 West Palm Beach, FL 33401 <a href="mailto:wcblaw@aol.com">wcblaw@aol.com</a> <a href="mailto:wcblawasst@gmail.com">wcblawasst@gmail.com</a> <i>Co-Counsel for Plaintiff/Counter-Defendant</i> <i>Jeffrey Epstein</i></p> | <p>Jack A. Goldberger Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue S., Suite 1400 West Palm Beach, FL 33401 <a href="mailto:jgoldberger@agwpa.com">jgoldberger@agwpa.com</a> <a href="mailto:smahoney@agwpa.com">smahoney@agwpa.com</a> <i>Co-Counsel for Plaintiff/Counter-Defendant</i> <i>Jeffrey Epstein</i></p> |
~~TRIAL CONTINUANCE APPROVED:~~¶
Jeffrey E. Epstein
Plaintiff/Counter-Defendant¶
Dated: November 6, 2017¶
NOTA CERTIFIED COPY¶