IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
Case No. 50-2009CA040800X3OOCMBAG
JEFFREY EPSTEIN,
PlaintifMounter-Defendant,
v.
SCOTT ROTHSTEIN individually, and J. individually,
Defendants/Counter-Plaintiff.
#### PLAINTIFF/COUNTER-DEFENDAN MOTION TO MAKE COURT RE 'cif EPSTEIN'S NFIDENTIAL
S SA
Plaintiff/Counter-Defendant Jeffrey E • pstein"), pursuant to the 156 Judicial Circuit's Administrative Order 2.303-9/W vo e Court to make court records confidential, and in support thereof, states:
- 1. There is a een Epstein and Defendant/Counter-Plaintiff en) 0 the pn eged nature of certain documents that were included on a disc recently obtained Ep m's former counsel, IM
- 2. ' tiNfocently identified exhibits on his Clerk's Trial Exhibit List which included Xm documents from the disc. moved to strike those exhibits both on their untimely disclosure d because he alleged 49 of the exhibits were attorney-client privileged.
- 3. The Court held a hearing on March 8, 2018, at which time Motion to Strike Epstein's Untimely Supplemental Exhibits and to Strike All Exhibits and Any Reference to Documents Containing Privileged Materials Listed on Privilege Log was heard. The
Court struck Epstein's newly disclosed exhibits as untimely but did not make any findings on the privileged nature of the documents. In order for Epstein to preserve his rights concerning the Court's rejection of the ore tenor request for an in camera inspection and striking of Epstein's newly disclosed exhibits, the Court directed Epstein to file under seal the newly disclosed trial exhibits which has claimed are privileged. (3/8/18 Aft. Tr. 62:2-63:1.)
4. At the March 8, 2018, hearing, the Court also stated that the copy of c entitled "Epstein Stamp" obtained from files should be filed
> ... that the one disk containing the documents that are et ht to be introduced at trial to take [sic] to record will rrtiitted to be filed under seal.
(3/8/18 Aft. Tr. 75:16-18.) The Court directed the Link original files (including the original disc). Alf. Tr. 80:8-81:15.) AC:fl ch firm to maintain
5. Because the case was stayed ( Arc ea, 2018, by the Fourth District Court of Appeal, Epstein could not move the s to 1 the disc and exhibits in accordance with Administrative Order 2.303-9/09. 1R however, on March 11, 2018, served a Notice of Service of Court's March 8, 2 8, g Transcripts and Compliance with Court's Rulings, a copy of which is attache ibit A. Simultaneously with the filing of this Motion, Epstein is filing the disc an \*al exhibits under seal in compliance with the Court's rulings at the March 8, 291 mg.
hile on March 12, 2018, nunc pro tunc to March 8, 2018, the Court entered an Agreed Order sealing two docket entries which referenced the contents of documents claimed are attorney-client privileged, the Order did not address the sealing of the disc and the stricken trial exhibits.
7. The Fourth District Court of Appeal's stay has now been lifted in part.
1. Epstein recognizes that Administrative Order 2.303-9/09 provides that a request to seal court records must be made by written motion and that the parties may not submit an agreedupon order. Specifically, the Administrative Order provides:
> I. A request to make court records ... confidential in any type of case must be made by written motion. Parties cannot submit an agreed-upon order. The Motion must be captioned "Motion to Make Court Records Confidential" ... The Motion must identify with particularity the records or hearing to be made confidential and th grounds upon which it is based. ...
> > \*\*\*
3. A public hearing on any motion to seal a court r held as soon as practicable but no sooner than notice is given to the public and the press. ..\_ O ill be ys after
1. A sealing order issued by a court mw st, A specificity the grounds for sealing and the findings peth that justify sealing. ... The order must contain specific findings that the degree, duration, and manner of confidentiality are no broader than necessary to protect the intereOts listed in the Interim Rule ofJudicial Administration 2.420(c)( ). ..:\*
Accordingly, to assure th and stricken trial exhibits that claims are privileged are accepted by the erk der seal and remain under seal, Epstein requests an Order authorizing such filings a ing the Clerk that such filings shall remain under seal until further order of the Col e c B y Ming this Motion, Epstein does not agree with ME privilege assertions. O
This motion is being made in good faith and is supported by a sound factual and legal basis.
# CERTIFICATION
#### CERTIFICATE OF SERVICE
I certify that the foregoing document has been furnished to the attorneys listed on the Service List below on March 21, 2018, through the Court's e-filing portal pursuant to Florida Rule of Judicial Administration 2.516(b)(1).
> LINK & ROCKENBACH, PA 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, Florida 33401 (561) 727-3600; (561) 727-3601 [fax]
By. Is/ Scott J. Link
Scott J. Link (FBN 60299 Kara Berard Rockenbac 44903) Rachel J. Glasser (Fes ) Primary: Scon®lin ockljtw.corn Primary: Karaalinkrocklaw.com Primary: Radlicl(a)linkrocklaw.com Second : Tinaalinkrocklaw.com Seco Tr' linkrocklaw.com servicealinkrocklaw.com
tinsel for Plaintiff/Counter-Defendant Epstein
**SERVICE LIST**
| Jack Scarola
Karen E. Terry
David P. Vitale, Jr.
Searcy, Denny, Scarola, Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
mep@searcylaw.com
jsx@searcylaw.com
dvitale@searcylaw.com
scarolateam@searcylaw.com
terryteam@searcylaw.com
Co-Counsel for Defendant/Counter-Plaintiff
[REDACTED] J. [REDACTED]
| Philip M. Burlington
Nichole J. Segal
Burlington & Rockenbach, P.A.
Courthouse Commons, Suite 350
444 West Railroad Avenue
West Palm Beach, FL 33401
pmb@FLAppellateLaw.com
njs@FLAppellateLaw.com
kbt@FLAppellateLaw.com
Co-Counsel for Defendant/Counter-Plaintiff
[REDACTED] J. [REDACTED]
|
| -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| [REDACTED] J. [REDACTED]
Pottinger LLC
425 N. Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301-3268
brad@epllc.com
Co-Counsel for Defendant/Counter-Plaintiff
[REDACTED] J. [REDACTED]
| Marc S. Nurik
Law Offices of Marc S. Nurik
One E. Bro [REDACTED] Boulevard, Suite 700
Ft. Lauderdale, FL 33301
marc@nuriklaw.com
Counsel for Defendant Scott Rothstein
|
| Jack A. Goldberger
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue S., Suite 1400
West Palm Beach, FL 33401
jgoldberger@agwpa.com
smahoney@agwpa.com
Co-Counsel for Plaintiff/Counter-Defendant
Jeffrey Epstein
| Paul Cassell
383 S. University
Salt Lake City, UT 84112-0730
cassellp@law.utah.edu
Limited Intervenor Co-Counsel for L.M., E.W. and Jane Doe
|
| | Jay Howell
Jay Howell & Associates
644 Cesery Blvd., Suite 250
Jacksonville, FL 32211
jayhowell.com
Limited Intervenor Co-Counsel for L.M., E.W. and Jane Doe
|
# EXHIBIT A
NOT A CERTIFIED COPY
#### IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
Case No. 50-2009CA040800XXXXMBAG
JEFFREY EPSTEIN,
Plaintiff/Counter-Defendant,
v.
SCOTT ROTHSTEIN individually, and J. , individually,
Defendants/Counter-Plaintiff.
CO SA
#### SERVICE OF COURT'S MARCH PLAINTIFF/COUNTER-DE SA ARNINOGTITCE ONFS, CRIPTS AND COMPLIANCE RT'S RULINGS1
Plaintiff/Counter-Defendant Je '....." Epstein ("Epstein") hereby serves the transcripts (morning and afternoon sessions Compliance with the Court's lifted. arch 8, 2018, hearing, and provides his Notice of pstein will file this Notice with the Court once the stay is
# THE COURT'S RULINGS
At th g, the Court made the following rulings:
- s to Intervenors' (E.W., L.M. and Jane Doe) request to temporarily seal the pleadings relating to the e-mails, the Court granted the request and asked for a proposed Order. (Morning Session, 3/8/18 4:16-5:1.)
- The sanitized redacted version of Epstein's Notice of Filing Appendix shall be filed under seal. (Afternoon Session, 3/8/18 75:20-23.)
I Although no written Order has been entered and the proceeding is stayed, Epstein has complied with and will continue to comply with the Court's rulings on the record.
- In order for Epstein to preserve his rights concerning the Court's rejection of the last-minute request for an in-camera inspection and the striking of his newly disclosed exhibits, Epstein shall file under seal the newly disclosed trial exhibits which has claimed are privileged. (Afternoon Session, 3/8/18 62:2-63:1.) These do not include exhibits that were already in the Court file or used in this case. (Afternoon Session, 3/8/18 76:8-21.)
- Link & Rockenbach, PA's copy of the disc entitled "Epstein Bate Stamp" that is the subject of the dispute will be filed under seal. (Afternoon Sessjon, 3/8/18, 75:12-18.)
- Link & Rockenbach, PA to retain boxes, includi e original disc. (Afternoon Session, 3/8/18, 80:8-81:15.)
On Friday, March 9, 2018, at 4:15 p.m. the Fourth District ourt ppeal entered its Order staying the state court action pending its review.
# PLAINTIFF/COUNTER-DEFE OMPLIANCE
Plaintiff/Counter-Defendant Jeffrey Ep u co el, Link & Rockenbach, PA, have complied with the Court's rulings at the Mal 2018, hearing as follows:
- Link & Rockenbach, made any further dissemination of the documents included in the Support of Epstein's Response in Opposition to Seco Admissible Evi nal exhibits or other documents from the disc that ment to Motion in Limine Addressing Siii ea has asse privi claims over.
- On March 8018, Link & Rockenbach, PA notified its client, its co-counsel (Jack rger), its litigation team working on this matter, and its expert, Timothy to destroy all hard copies and electronic versions of the documents ned from the disc and any copies of the discs that they had in their possession. ÷ • n March 6, 2018, Epstein filed his Notice of No Objection to Attorney Paul YY Caccell on Behalf of L.M., E.W. and Jane Doc, or Defendant/Counter-Plaintiff
- J. Moving to Seal Court Records Until the Court Makes a Determination on How the Documents Shall be Treated.
- Link & Rockenbach, PA is assisting counsel to seal the redacted version of D.E. 1242, Epstein's Notice of Filing Redacted Appendix in Support of Response in Opposition to ' Second Supplement to Motion in Limine Addressing Scope of Admissible Evidence, and D.E. 1252, Motion for Court to Declare Relevance and Non-Privileged Nature of Documents and Request for
Additional Limited Discovery, Evidentiary Hearing and Appointment of Special [REDACTED].
- • Link & Rockenbach, PA has destroyed its paper copy of the Redacted Appendix that was filed in the Court file and has deleted the electronic version from its system.
- • Link & Rockenbach, PA, has placed the Unredacted Appendix that was served but not filed in a sealed box that will be maintained in its office, unopened, for appellate purposes.
- • In [REDACTED] March 5, 2018, Motion to Strike Epstein's Untimely Supplemental Exhibits and to Strike All Exhibits and Any Reference to Documents Containing Privileged Matters Listed on [REDACTED] Privilege Log, Edwards alleged the following exhibits identified by Epstein were privileged:
| No. | Ex. No. | [REDACTED] No. | App. No. |
| --- | ------- | -------------- | -------- |
| 1 | 13-1 | 02645 | |
| 2 | 13-4 | 00149 | 35 |
| 3 | 13-5 | 01527 | 3 |
| 4 | 13-6 | 04493-4495 | |
| 5 | 13-7 | 00014 | 36 |
| 6 | 13-11 | 00090 | 37 |
| 7 | 13-13 | 00133 | 68 |
| 8 | 13-15 | 08006 | 31 |
| 9 | 13-17 | 00026 | 70 |
| 10 | 13-19 | 01004 | 71 |
| 11 | 13-25 | 12289 | 33 |
| 12 | 13-30 | 26481 | |
| 13 | 13-34 | 26480 | 60 |
| 14 | 13-35 | 26356 | |
| 15 | 13-36 | 26570 | |
| 16 | 13-44 | 03731-03732 | |
| 17 | 13-45 | 06406-06408 | |
| 18 | 13-46 | 01686 | 48 |
| 19 | 13-47 | 11123-11125 | 50 |
| 20 | 13-49 | 11126-11127 | 32 |
| 21 | 13-52 | 25925 | |
| 22 | 13-53 | 25874 | |
| 23 | 13-56 | 11145 | |
| 24 | 13-60 | 03191-03192 | 4 |
| 25 | 13-66 | 04398-04402 | 2, 34 |
| 26 | 13-67 | 04408-04412 | 1 |
| 27 | 13-86 | 267477 | 11 |
| 28 | 13-88 | 08042-08044 | 16 |
| 29 | 13-89 | 26741-26742 | 13, 15 |
| No. | Ex. No. | No. | App. No. |
| --- | ------- | ----------- | -------- |
| 30 | 13-90 | 08059-08061 | 17 |
| 31 | 13-93 | 26756-26758 | 9 |
| 32 | 13-94 | 08036-08038 | 19 |
| 33 | 13-97 | 26762 | 8 |
| 34 | 13-98 | 01117 | 21 |
| 35 | 13-100 | 08121-08123 | 20 |
| 36 | 13-101 | 26749-26752 | 23 |
| 37 | 13-102 | 08128-08130 | 24 |
| 38 | 13-103 | 08118-08120 | 22 |
| 39 | 13-104 | 08131-08133 | 25 |
| 40 | 13-105 | 08124-08126 | 26 |
| 41 | 13-106 | 08135-08138 | 10 |
| 42 | 13-107 | 27494 | 27 |
| 43 | 13-108 | 26760 | |
| 44 | 13-110 | 25997 | 28 |
| 45 | 13-111 | 25937 | 67 |
| 46 | 13-113 | 26604-26605 | 56 |
| 47 | 13-116 | 07019-07021 | |
- • [REDACTED] also objected to the following additional exhibits as being late disclosed:
| No. | Ex. No. | No. | App. No. |
| --- | ------- | ----------- | -------- |
| 1 | 13-2 | 03037 | 54 |
| 2 | 13-3 | 03036 | 55 |
| 3 | 13-8 | 03998-04000 | 6 |
| 4 | 13-9 | 02231 | |
| 5 | 13-10 | 01300 | |
| 6 | 13-12 | 2906-2908 | |
| 7 | 13-14 | 11237 | |
| 8 | 13-18 | 01464 | |
| 9 | 13-20 | 01403 | |
| 10 | 13-21 | 02684-02685 | 51 |
| 11 | 13-22 | 01475 | |
| 12 | 13-24 | 03694 | 79 |
| 13 | 13-26 | 01166 | 38 |
| 14 | 13-27 | 01258 | 72 |
| 15 | 13-28 | 15113-15114 | |
| 16 | 13-31 | 26394 | |
| 17 | 13-33 | 25922 | |
| 18 | 13-37 | 00992 | |
| 19 | 13-40 | 01423 | 7 |
| 20 | 13-41 | 05071 | |
| 21 | 13-43 | 02043 | 81 |
| No. | Ex. No. | No. | App. No. |
| ------- | ------- | ----------- | ------------- |
| 22 | 13-48 | 02088 | |
| 23 | 13-50 | 11128-11131 | 49 |
| 24 | 13-51 | 08459 | |
| 25 | 13-54 | 08348-08349 | |
| 26 | 13-55 | 08355 | |
| 27 | 13-61 | 27284 | 87 |
| 28 | 13-62 | 26893 | 89 |
| 29 | 13-64 | 01255 | |
| 30 | 13-65 | 26836-26837 | 90,91 |
| 31 | 13-68 | 26807 | 92 |
| 32 | 13-69 | 26808-26809 | |
| | | | 93 AN |
| 33 | 13-70 | 27379 | 94 |
| 34 | 13-71 | 27293 | |
| 35 | 13-72 | 26021 | 63 |
| 36 | 13-73 | 27270 | |
| 37 | 13-74 | 27355 | 97 |
| 38 | 13-75 | 27325 | 100 |
| 39 | 13-77 | 27322 | 101 |
| 40 | 13-78 | 267 | |
| 41 | 13-79 | 2 6 6 | 102, 103, 104 |
| 42 | 13-80 | 8 6089 | 105 |
| 43 | 13-81 | 25 | 52 |
| 44 | 13- | 072 | 108 |
| 45 | | Legamaro | |
| 46 | A- 9 | 27522 | 109 |
| 47 146/ | )3-96 | Legamaro | |
| 4 | 13-99 | 27051-20752 | 112 |
| 49 | 13-109 | 27025 | 111 |
| 50 | 13-112 | 26973 | 84 |
| 1 | 13-114 | 26737 | 57 |
| ) 52 | 13-115 | 26485 | 57 |
| 53 | 13-117 | 27013 | 58 |
- Link & Rockenbach, PA has marked the exhibits identified above and placed them in a sealed envelope for filing with the Court under seal once the stay is lifted in order to preserve Epstein's appellate record. Link & Rockenbach, PA will retain a set of these exhibits in a sealed envelope in the sealed box maintained in its offices for appellate purposes.
- With the exception of those documents it is maintaining in a sealed box for appellate purposes, Link & Rockenbach, PA has destroyed all hard copies of the documents it reproduced from the disc that has identified as privileged.
- Link & Rockenbach, PA has placed its copy of the disc in a sealed envelope, which will be filed under seal with the Court once the stay is lifted.
- Link & Rockenbach, PA has placed original disc in a sealed envelope which will be maintained with its original records at the offices of Link & Rockenbach, PA until further rulings by the Court.
- Link & Rockenbach, PA will maintain control of the further rulings by the Court. oxes until
- Link & Rockenbach, PA has deleted the electronic duplicate e disrc and the electronic version of the exhibits identified above from i r system and Dropbox.
- Link & Rockenbach, PA will work with its IT pens move copies of any documents has claimed as privileged e-mail servers.
# ERTIFI ATE F
I certify that the foregoing document has Service List below on March 11, 2018, via e-m is lifted. shed to the attorneys listed on the ill e served with the Court once the stay
+6s
INX & ROCKENBACH, PA 55 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, Florida 33401 (561) 727-3600; (561) 727-3601 [fax]
By: /s/ Scou J. Link Scott J. Link (FBN 602991) Kara Berard Rockenbach (FBN 44903) Rachel J. Glasser (FBN 577251) Primary: Scott@linkrocklaw.com Primary: Kara®Iinkrocklaw.com Primary: Rachelelinkrocklaw.com Secondary: Tina@linkrocklaw.com Secondary: Troy®Iinkrocklaw.com Secondary: Eservice@linkrocklaw.com
Trial Counsel for Plaintiff/Counter-Defendant Jeffrey Epstein
# SERVICE LIST
| Jack Scarola
Searcy, Denny, Scarola, Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409
mep@searcylaw.com
jsx@searcylaw.com
scarolateam@searcylaw.com
Co-Counsel for Defendant/Counter-Plaintiff
J. [REDACTED]
| Nichole J. Segal
Burlington & Rockenbach, P.A.
Courthouse Commons, Suite 350
444 West Railroad Avenue
West Palm Beach, FL 33401
njs@FLAAppellateLaw.com
kbt@FLAAppellateLaw.com
Co-Counsel for Defendant/Counter-Plaintiff
J. [REDACTED]
|
| -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| J. [REDACTED]
Pottinger LLC
425 N. Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301-3268
brad@epllc.com
staff.efile@pathotojustice.com
Co-Counsel for Defendant/Counter-Plaintiff
J. [REDACTED]
| Marc S. Nurik
Law Offices of Marc S. Nurik
One E. Broward Boulevard, Suite 700
Ft. Lauderdale, FL 33301
marc@nuriklaw.com
Counsel for Defendant Scott Rothstein
|
| Jack A. Goldberger
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue S., Suite 1400
West Palm Beach, FL 33401
jgoldberger@agwpa.com
smahoney@agwpa.com
Co-Counsel for Plaintiff/Counter-Defendant
Jeffrey Epstein
| Paul Cassell
383 S. University
Salt Lake City, UT 84112-0730
cassellp@law.utah.edu
Limited Intervenor Co-Counsel for L.M., E.W.
and Jane Doe
|
| | Jay Howell
Jay Howell & Associates
644 Cesery Blvd., Suite 250
Jacksonville, FL 32211
jayhowell.com
Limited Intervenor Co-Counsel for L.M., E.W.
and Jane Doe
|
# EXHIBIT A
NOT A CERTIFIED COPY
L
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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA
Case No. 502009CA040800XXXXMB
JEFFREY EPSTEIN,
vs.
SCOTT ROTHSTEIN, individually; , individually,
Defendants/Counter-Plaintiffs.
# TRANSCRIPT OF SINGS
( S \\
DATE TAKEN: ay, March 8th, 2018 TIME: a.m. - 12:08 p.m. PLACE N. Dixie Highway, Room 10D est Palm Beach, Florida BEFORE Donald Hafele, Presiding Judge
Aft\\w r
Plaintiff/Counter-Defendant,
This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by:
> Sonja D. Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 (561) 471-2995
#### APPEARANCES:
For Plaintiff/Counter-Defendant:
LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, FL 33401 By KARA BERARD ROCKENBACH, ESQUIRE By SCOTT J. LINK, ESQUIRE
For Defendant/Counter-Plaintiff: SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 By JACK SCAROLA, ESQUIRE By KAREN TERRY, ESQUIRE ,44(:,90 By DAVID P. VITALE JR., ESQU
For Non-Parties L.M., E.W \\ae Doe
> HATCH, JAMES & DO 10 West Broadwa e 400 Salt Lake City. 84 01 By PAUL G. C ESQUIRE
For Jeffrey E
ATTE GOLDBERGER & WEISS, P.A. 2)0 Au ralian Ave. South, Suite 1400 t Palm Beach, FL 33401 CK A. GOLDBERGER, ESQUIRE
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THE COURT: Good morning. Have a seat.
Thank you.
Needless to say the recent barrage, as opposed to flurry, of activity that has transpired is of extreme consternation to the court. It has caused me to have to engage in an inordinate amount of time to the exclusion of other matters that nee my attention. )
Co
While the Court understan gravity of the issues that have tra it is with extreme consternat concern that they have transpire n eve of trial, a trial that has ale d een continued once, matters that ave been avoided had timely acti en taken. And the burden on the Cou o try to get through what would roximately four feet of documents is nsive and onerous. I have done the best hat I can to go through the materials, and I had some assistance, which I appreciate, from one of our staff attorneys, in trying to simply wade through the extensive, complicated, and in many situations, years' old documents, some that go back almost a
decade in terms of their age, and much of which I'm reviewing for the first time.
So it's against that backdrop we will proceed. We will hear the motion filed by Epstein to remove the case from the trial docket relative to Florida Rule of Civil Procedure 1.440 first.
MR. SCAROLA: Good morning, Your H With the Court's permission, believe not, there is one agreed matter ha we would ask the Court to addr
I would like to in to Your Honor University of Utah Cassell, essor Paul former ral Judge Paul Cassell, who will prey t t matter to the court.
: Good morning, Your Honor. Since t s an unopposed motion, it will take 10 seconds to present.
0 I'm here pro hac vice, which I'm not ure the Court is concerned about. We do have a motion to seal the pleading and related emails. It's unopposed. We ask that it be granted. Temporarily sealed until you reach a ruling.
an order in that regard, please.
All right, Ms. Rockenbach.
MS. ROCKENBACH: Thank you. May it please the Court. Good morning.
Your Honor mentioned the barrage that the Court has received. And it's the exact words that I have on the top of my yellow pad to describe the email flurry that h occurred within the last four days, C is have truly made me sick. I co t wait for this hearing to occur b •f the fact that I know this C s not need any more paperwork. ou ed to see the attorneys and u to d the chain of evidence and i was reprehensible that either I or )law partner has been accused of stea1e4V 4 documents. sic That has made me
0 So I look forward to discussing the privileged nature of the documents. And I thank Mr. Cassell for being here today.
> Your Honor, this is Mr. Epstein's motion to remove this case from the trial docket. It was prompted by Mr. • motion to separate the trials, which was
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filed on Friday, I believe, for the first time identifying that the fact that the default that Mr. Epstein has against Mr. Roth was on the original complaint and it no longer applied.
and to Mr. Epstein -- he is absolutely ASA Y Mr. pointed out to this Court Ise correct -- that Mr. Epstein's operative complaint is the Second Amended Comp which there is no default.
What rule 1.440 tells is to look at the time moved -- it's maybe node to set trial. In this case it a otion to set cause rt to do for trial -- case at issue.
Rule 1 4 is one of the most strictly complie h mandatory rules of civil dure, which has been recognized by the th District Court of Appeal, and it's ne of those rare instances when a petition for writ of mandamus is appropriate when it's not complied with.
So we need to look at the pleadings and not try this case twice. This case was not at issue when Mr. filed his
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motion -- for the obvious reason, when he filed his motion to set the case in the above-styled cause of action for trial on May 24th, 2017. There is no dispute.
And Mr. has actually pointed it out, Mr. Epstein did not have a default against Mr. Rothstein.
Contrary to what Mr. I suggestion is, is to cure this issue
( ;: iiRr
THE COURT: Mr. Epstein d default against Mr. Rothste have a
MS. ROCKENBACH: very much. thank you
Contrary to suggested, t e no cure for a defective motion to s cause for trial. You cannot cure i has
? Ic/c11ere 14 . In fact, both sides. I cited Labor eady from the Fourth District Court of Appeal in my motion. And I understand Mr. intends to rely upon it. But this was an authored decision by Judge Melanie May from the Fourth DCA. And that case has great language to guide this Court are some cases that have been
÷
on.
In that case Judge May wrote, "We do not quarrel with those cases or their holdings."
Your Honor, would the Court like a copy of this case to follow?
THE COURT: Sure.
MS. ROCKENBACH: Thank you. approach? Mae'
THE COURT: Yes.
MS. ROCKENBACH: I hav larly highlighted copy for co
A
So in that cas thtourth DCA has said, "We don't re with genuine parts of prior Fou case recognizing the mandatory n u and compliance, strict complia ith Rule 1.440." Judge May "We don't quarrel with Bennett versus inental Chemicals."
However, we point out that none of those cases involve the case that has been pending at issue for years. Those cases were at issue. Meaning, they had a default. They had an answer. They had a final pleading. Twenty days had run. Another 30
4 5 6 7 What Judge May said in this case, the Labor Ready case, there was a last minute technical amendment to the complaint. And waived. AoilAv guess what, they went to trial. It was
8 9 10 11 12 13 That case does not apply. Those f P do not control. What you have befor C Yo r Honor is a -- no waiver, no wa You have an objection that Mr. has pointed out, rightfully case is not at issue.
14 15 16 17 What I file ?tSh\\ he Court immediately, neously with the motion to remove t ase from the docket was a proper on for default against Rothstein.
18 19 20 21 22 c There is no case that supports ' position to this Court about 7\\ evering a case in order to retroactively make it at issue. That doesn't happen in the law.
23 24 25 The law says, in rule 1.440 in the Bennett case and the Gawker case from the Second DCA, says that this Court has to look
days had run. Compliance with rule 1.440, check the box.
4 5 at May 24th -- and that is the salient date that this Court must look at -- because that's when Mr. hastily moved this case and set the above-styled caused of action for trial, May 24th.
6 7 8 9 To be clear, Your Honor, Mr. did not move to sever at that time. This case has been pending for some eight pl years. He has never before tried to sev r.
10 11 12 13 14 He, at that time, on May h, instead of pointing out the lack of and by the way, you need a def moved the case. He didn't ev mo iis counterclaim to set for trial oved the case.
15 16 17 18 19 20 21 22 I;;;I;; e C: r, to evidence Mr. i P ent to try this case globall in claim and counterclaim - is appropriate, because the terclaim arises from the main claim - entered into a joint stipulation indicating that that's how the case is going to be tried.
23 24 25 So it was not Mr. Epstein who caused this last-minute, 11th-hour, II, my gosh, we are not at issue, it was Mr. who
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pointed it out.
I researched it over the weekend. And on the very next business day, as soon as I possibly could, I filed the motion to remove the case from the docket.
I then immediately moved to default. I filiR' have an order for the Court to sign to ent C. ) a default. Served it on Mr. Rothstein' counsel of record, Marc Nurik. And e w 11 then be ready once this Court the default, and presumably eit y notices it for trial in 20 days is then at issue, this Court c set it no less 30 lig 7e days. That is t an atory nature of the rule.
1% I regr 're here, but this is a strict ! ,NOR. iance rule and we have to be at 1.44s.fr,
0 And, Your Honor, the last thing either ide or this Court wants is to try this case twice
THE COURT: Despite the representation, Ms. Rockenbach, that you made in your motion to continue, that Plaintiff and his trial counsel will not seek another continuance.
We will be to ready to try the case in 90\
days --
**MS. ROCKENBACH:** Yes.
**THE COURT:** -- quote, end quote.
**MS. ROCKENBACH:** Yes.
**THE COURT:** Why was that not pointed\
out to me upon a review of the docket,\
presumably a review of the docket, to\
determine whether or not there was, in fact,\
a need to strike the trial notice at that\
time, instead of gearing up, instead of\
spending an inordinate amount of court\
resources, and now taking the position that\
because what in essence was dilatory conduct\
on the part of the Epstein trial counsel\
team, dating back to 2011, now constitutes\
reason for this case to be stricken?
Does that not sound inequitable? Does\
that not sound inappropriate? Does that not\
sound specifically contrary to the quoted\
language that I have just indicated here?
**MS. ROCKENBACH:** The quoted language as\
you indicated, Your Honor, I made knowing\
that there was a default.
1 2 3 that default does not apply to the operative complaint. And I never, ever thought that it did not.
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 part of getting up to speed, your responsibility to chec the pleadings -- and as been cited -- at le of them indicate, the responsibili Airc,,ou ,w/ d have been to file a motion to st t case that. A motion to s i the notice setting trial or the tri der seasonably and timely so we would not have been in this position he first place? THE COURT: Isn't that your responsibility? Isn't that the responsibility -- before you make that statement to this Court and make the Ad representation that in light of the fac C!) that you guys were getting up to spe C'd, hat wo i d ave been equacy of e that has strike
20 21 22 It would seem to me that you are essentially creating the error yourselves by not doing due diligence.
23 24 25 MS. ROCKENBACH: I wish I had seen it. I knew there was a default against Mr. Rothstein, and that he was in federal
Ar
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prison. Never before did Mr. raise this issue that he raised on Friday.
And by the way, Your Honor, the fact that Mr. has raised it, he is using it as an excuse to sever the trial, which does not cure the defect, and is an appropriate manner to try this case in any event.
0 Mr. is the one who poin ed Qut the improper defect, who could 6 raised it much sooner.
Your Honor, I wish een it. I wish I had seen it. nd are ready to try the case, but t no the issue.
Mr. Edw ing raised the defect now, we cou gb through this trial, get a verdicttip,'Mr. Epstein, and I believe we and then Mr. could appeal on defect because he has raised it.
. 6 So there is but one action that the Court can take, and that is --
> THE COURT: If that transpires, then I quit. Then I am resigning my position. Because if I can't trust what was written already here by you, that you -- that
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Mr. Epstein, as the Plaintiff, and his trial counsel, will not seek another continuance, and be will be ready to try the case in 90 days -- quoted language, pledging to this Court that otherwise this case is ready to go -- and now we are faced with this defect after all of the time and expense that has, been made here and spent here, is real C l travesty.
And while I say that tong cheek in terms of my resignation, th' -- it would be astounding to mi Si at was, in fact, the case.
MR. LINK: Shut Honor, may I have permission t next to my partner on this? C
Sure. Of course.
. LINK: Thank you.
O Judge, A÷r ecord is clear. We are not asking for a continuance. The words that we gave you, we are standing by. This is not a motion for a continuance. And the words that my partner told this Court were absolutely true when she said them. They are absolutely true I want to make sure that the
today. This is not us not being ready. This a legal defect that cannot be cured.
And I apologize to the Court for where we are and what we have done. And I'm afraid we are going to spend a lot more time together on this case.
But I want this Court to AOAIC understand that when my law firm says something, mean it. We absolutely do. And we re dot moving for continuance.
But this case cannot g al with this defect, that's jus . But I don't want this Cou to ink for one second that my p er or I would ever mislead you y omething we didn't mean. I have been dosed of enough of that this week.
THE COURT: The point that I'm -- nobody is accusing you.
MR. LINK: Not you, Your Honor. I've been accused of stealing documents and a crime.
THE COURT: I understand.
MR. LINK: And that's the first time in 32 years.
THE COURT: And I appreciate that. I understand everybody's emotions are rather high, based upon the fact that all of this has transpired in such a short amount of time.
But again, at the same time, as I said A before, it seems to me to be highly inequitable -- and I understand your 0 argument is legal in nature -- but h hl inequitable to come before the and suggest that by way of dila duct on the part of the Epstein, eam in not securing the techni speaking about, against an i prison for my know ali that e is a default dk 1 who at we are will remain in est of his life. Who is, to based anecdotally, only based ecdotal evidence, is penniless and has disgorged of any assets that he has and hat his family has, that somehow because of this technicality we're caused to put this case back and not try the case after, again, an inordinate amount of time and expense, which is in essence taxpayer money, of which this Court has been and continues to be a
steward of those expenses and time.
Again, coupled with the fact that it was represented to this Court that there would be no further delays and that the case would be ready to try. That tells me and that represents to me, that counsel has done their due diligence.
Part of the motion said, "We have = the Court loud and clear, now we" - and Rockenbach -- "are on the c e, with support from the Gunster fi we will not allow the same type uct that transpired earlier e Court was critical of, hap ain."
That pl this Court means something t s Court. That means that the doc as been assiduously reviewed, hat everything else, short of gearing or trial on the substantive issues that A÷a re before this forum, have been resolved, rectified, and that certainly we are not going to be reaching back seven years on a technicality to somehow thwart the efforts of the Court in trying to moved forward on behalf of both sides to resolve a case that
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has drawn a significant amount of public interest and that has been pending for --
MR. LINK: Nine years.
THE COURT: Nine years is too simple. Three thousand and thirteen days, as of today.
MR. LINK: Yes, sir.
Your Honor, if I may. Because wha really important to me, more than an in this case, is our reputatio this Court to understand th moving for a continuanc d I want e not
A
THE COURT: ay that was your position, which Nnv here is a frustration
Continpn s are discretionary under the S law have wide discretion. The Rule o k dicial r Administration of this state -- I do my best to follow them. And you ÷ ave probably heard me at 8:45s make this statement, at least if not expressly, impliedly, that the trial courts of this state shall have a firm continuance policy.
> Now, while that may not be popular amongst the bar when the Court enforces that
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rule, it is nonetheless a rule of the Florida Supreme Court, and I do my best to follow the law, despite popularity concerns, of which I have none.
MR. LINK: And we appreciate that, Your Honor .
THE COURT: So --
MR. LINK: Sorry, I thought you we done.
THE COURT: I am not exon- g the movant here, by any means. the first one --
MS. ROCKENBACH: A cTh ovants being
q t ar ICIO THE COUR ' talking about The movant ' 61)ing the case for trial.
or Epste'
NB : Understood.
!4cHE COURT: Because has the responsibility to the Court, to this + ommunity, to the taxpayers, to the public, to my constituency, to assiduously review the docket, to ensure that the notice is being provided in accordance with rule 1.440.
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here. It's just, again, a cumulation of having to go through what we have gone through together. Up to now, what I have tried to maintain, a civil, professional and efficient atmosphere despite the nature of the case, despite pejorative comments that were made earlier, which the Court has S indicated will not be tolerated, and th 1 % has been followed carefully by all C concerned, and I appreciate th y much.
But here we are. I am 7 r with the law. I am familiar ACteh matte statute -- strike that.
I am famili the rule. I am familiar wit (:.P1 mments to the rule. I am familiar i the case law pertaining to the rul
I will allow you time for rebuttal, if e
MS. ROCKENBACH: Thank you, Your Honor.
MR. LINK: Judge, thank you for letting me come up here.
THE COURT: Mr. Scarola, again, I share my frustration with you and the legal team, as well, as far as this •
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conundrum.
It is disappointing that a firm of your stature, an attorney of your stature, of which I have an abiding respect for all of those who are serving their clients in this case, that, again, the docket was not assiduously combed, and we are left here today with the very real possibility of case not being tried as scheduled.
Your response, please.
MR. SCAROLA: Yes, sir Honor, let me first of all poi hat rule 1.440 only permits ar o notice a matter for trial issue.
And at our notice was filed, we were not rty to the case that was pending nst Mr. Rothstein. And quite y, had no concern about that case. It simply not a matter that we cared about, 7\\a nd quite frankly believed, for the reasons that Your Honor has referenced, that it would never really be tried.
> This is a defendant who has absolutely no ability whatsoever to ever respond to a judgment against him.
And our concern with regard to Rothstein arose when we were informed of the witnesses that were intended to be called ostensibly in the case against Mr. Rothstein, which was a damage only claim Alic for a conspiracy to commit abuse of process, a claim, which if it had been defended, would have been thrown out because ther no tort because of the litigation pr vil ge for conspiracy to commit abuse ocess, and there could not possibl any conceivable version of ever be a claim for damages b 41r pstein in connection with
Nonethe . are told that there are here's going to be testimony from Mrs thstein -- excuse me. From stein's victims in that portion of the that Mr. is going to be called •n that portion of case.
And what became apparent to us is, that an effort was going to be made to use the rouse of a claim against Rothstein as to which we would have no standing to object, to insert into the record information that
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facts. So what was going to happen if was going to be a focus on the under allegations -- We are obviously contesting those A(54Ar Isy
THE COURT: Against Ro
MR. SCAROLA: Agai -- is that the same jury must accept thes legations; and then they were going tyt ty d, you g to be told, you can't accept those alleg . And that obviously in and of Itl.f created a need for us to ach the Court and ask that these claims evered.
would never be admissible in the claim of
against Mr. Epstein.
It became a particular concern to us, because once a default is entered, the jury is obliged to assume the truthfulness of the facts that are alleged in the complaint.
We then determined that there was no valid default ever entered against Mr. Rothstein. It didn't happen. And that's not something, again, that was ever a concern to us.
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represent him. I am uncomfortable about the idea of having to be involved in a trial in which I might have to be raising objections that would appear to be objections on behalf of Rothstein to what's going on in that first portion of the case.
So we found out about the procedural defect. Now the issue becomes, does Yo Honor have the ability to address th problems? And the answer to t estion is clearly yes.
of a pe A \$;) counterclaim -- and er s no doubt about the fact that tru s a permissive counterclaim efs s within the sound discretion e Court.
T : The question that I had in reviewing the material, is this r 1 a counterclaim at all, albeit t echnically brought as same, because no longer is a defendant in the matter brought by Epstein?
> The sole defendant, as I understand it, on a one-count issue is Rothstein.
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AdV?ha i rguable, Epstein's claim brought against the only connection that is even is that, in fact, the case had its genesis in the fact that Epstein originally brought the claim against Rothstein, and L.M., and then voluntarily dismissed the case at the eve of summary judgment.
as a counterclaim only because that's the procedural posturing in which it arose.
But, when a voluntary dismissal was taken with regard to all claims against, it's no longer a counterclaim. It's now our claim against Mr. Epstein.
ASA Y
THE COURT: And while it has its O genesis in the original action filed C y) Epstein against Rothstein, Edw- nd L.M., the fact that simply becaus- its genesis there, as I was n to think this through among the of erials that I had to review -- an ere substantial -- is that can it rgued that the only connection ten Rothstein's claim bought against strike that.
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I.e., is there any law that supports the proposition that this would, in fact, be a separate action at this juncture having no technical, even legal connection, between the claim brought by Epstein against AC54r Rothstein for some type of conspiracy issue, and what is now a separate malicious prosecution claim -- albeit having its ( ..)q 1r genesis in the original Epstein acti but having nothing shared at t 7 ncture, either technically or legal -r than a case number?
MR. SCAROLA: nor, I think that our claim ag amended, qu a unquote, counterclaim that is really separate action. We are here to try Aiciame that is flawless ic. stein on a fourth
(But while I understand the Court's oning and agree with it, we don't need ÷to try to technically call this something other than what it was derived from, and that is a counterclaim.
> Because the law is very clear that this Court has the discretion to sever for separate trials a counterclaim. And that's
the second -- excuse me -- that's the Third DCA case that we cited to Your Honor, Turner Construction Company versus ENE Contractors.
And let me hand -- let me hand the other copy of that to Your Honor.
So we can assume without needing to reach the argument as to whether this is o is not still a counterclaim we can a that it is a counterclaim. There is question about the fact that i permissive counterclaim.
And we are in a po n7 whereas the Third District Cour eal observed, it is within a tria e s discretion to sever a perm ounterclaim from the main claim DL tSere is no evidence of prejudi
And I was very pleased to hear Mr. Link Ms. Rockenbach stand before the Court A÷a nd tell you, We are ready for trial. Because that's what they told you. They told you that back -- they told you they would be ready back in December, and they are telling you again, We are ready for trial. We are not asking for a continuance.
We only want to remove a technical defect that might have us try this case twice.
Well, I assure Your Honor, there could not be a clearer example of waiver on our part of any technical difficulty than I am asserting to the Court right now that could A never and will never be the basis for any appellate argument on our part.
0 So, next, the Court goes on to ay, "An appellate court will not inter a ith procedural rulings of a tri unless a party is deprived of ntial right by the procedure em
AS 71 So let's lo t the procedure employed, an District Co Ready v he unanimous f Appeal told us in Labor the Australian Warehouses minium Association. Fourth
THE COURT: And again, the mule of me 'wading through these documents, if you can hand me cases as we go along, I will appreciate it.
MR. SCAROLA: Absolutely.
THE COURT: Thank you.
4 5 6 court speaking through Judge May, as I said, an unanimous opinion joined in by Judge Gunther and Judge . And I am looking at the third page, the last page of this copy, Your Honor, and it's the highlighted language.
7 8 9 10 11 12 13 14 15 "This is not a case where the case ha never been at issue." Nor is this. "T is not a case where the parties did of have sufficient time to prepare." i this. "This is not a case where a prejudiced by the techn' ndments to were talking about adding a p rver damage claim to the complaint. the complaint." Th
16 17 18 19 "In si ons where the parties have receive ual timely notice of the trial, are precluded from arguing prejudice d upon a technical violation."
20 21 22 23 24 25 Here we don't concede that there is any technical violation at all. But even if there were to be, the Fourth DCA says not a basis to disturb a trial court decision when there is no evidence of prejudice. And we are being told no prejudice.
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THE COURT: Speak to me again about the issue where, in a setting such as this, if both matters were to be tried together, the position that your client would be in having to prosecute his claim and in essence try same time. AC:;Av potentially try to defend Rothstein at the
Isy MR. SCAROLA: Yes, sir. I think t that's really clear. The allegation C) against Mr. Rothstein are, eve his later version of the compla' sically identical to the allegat s hat were made against Mr. upon the complaint which a vol 141 ri 1'y dismissal was taken as to Mr. Ed
So the circums is told in a default all of the allegations must be ted as true. And the only issues that e are issues with regard to causation nd damages.
We are contending that there could be -- first of all we are contesting the underlying allegations. The jury is being told accept them with regard to Rothstein. You can't accept them with regard to
4 5 6 7 8 The other problem is, we are contending that there could be no damages incurred by Mr. Epstein as a result of anything that went on with regard to a Ponzi scheme in A(54r which he was not an investor.
9 10 11 12 13 what went on at Rothstein, EticY We are also contending nothing Adler can form the basis fo m because of the litigation privi solute immunity of the lit' ti privilege.
14 15 16 17 18 19 So the defe excuse me -- the plaintiff in versus Rothstein C A' case begins h 'r proof about h case by putting . Epstein was alleged on to have damaged by these absolutely immune vities.
20 21 22 23 24 25 AT?h What do I do at that point? I must stand up every time any of that evidence is being adduced before the jury, and I must object on the basis that this cannot apply to Mr. . I'm in the position of defending Mr. Rothstein, of objecting on the
Epstein, they are contested.
So that's the first problem. One jury being told to assume two different things.
1 2 3 4 5 6 7 causation grounds, of objecting that no injury could have been caused, of objecting on the basis that this is all absolutely privileged information. And from the perspective of the jury, I am now defending this man who is sitting in federal prison for 50 years.
8 9 10 11 12 13 14 And that simply creates extraordin prejudice to my client. It creates confusion on the part of the j nd it is absolutely unnecessary; and under these circumstances pro y precluded because there is no 4ca f against Mr. Rothstein.
15 16 17 18 19 20 So this as discretion to solve the problem u simply sever the permiss ounterclaim or the separate and you allow us to proceed to trial case that Mr. Epstein's lawyers have they are ready to try.
21 22 23 24 Let's do it. Let's go to trial. They said they are ready. The Court has the ability to cure whatever obstacle conceivably exists to trying this case.
25 My client finally deserves the
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opportunity after 3,000 whatever it is days to be exonerated publicly of the terrible charges that were lodged against him and hang out in the air and hang out in the cloud and hang out in the Internet some nine million point six hundred thousand times.
I am pleased to answer any other O questions Your Honor may have. But lea ly AS We would like our day in court, sir. the Court has got discretion to do hat we would like you to do. Just' .nds that you do what we would lijc ouu to do. Thank you, sir.
> THE COURT: you, Mr. Scarola. rr
Mr. Line 2
MR. LINK:/ Yes, sir.
THE COURT: As I mentioned, and I want t 'y S, gi(S e you the opportunity to comment on point.
"A!imh, In trying to think this through and rationally engage in a discussion, quote, technically and practically, I start with a proposition that the last amendment to the complaint that was filed on behalf of Epstein was solely against Rothstein on a
singular count.
MR. LINK: Yes, sir.
THE COURT: Clearly that was done after what was termed in quotation marks that I am using, a counterclaim filed by at a time when was, in fact, a named defendant in that particular action by virtue of Epstein's decision through counsel, presumably, to no longer in lud as a defendant in that n, the terminology and the trappin t would otherwise go along with ing entitled counterclaim would s e, would legally disappear, in of wo ds, had Mr. and counsel C e to file a separate action. )
: Yes, sir.
4 THE r COURT: Had this case gone away in entirety S -- let's say, just for the heck f it, that Epstein decided to completely walk away from the lawsuit in its entirety, just walk away --
MR. LINK: Could have happen.
THE COURT: -- as many do, okay, there was no longer a counterclaim, it is now --
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and has really always been, since the time that Epstein -- strike that.
That was no longer a defendant in the case, a separate action, no longer a counterclaim, technically or practically, A(504A r because there was no pending claim against, at least as late as the second amended or whatever iteration of the 1\$ .1 0 complaint that was filed in Septembe of 2011.
MR. LINK: Yes, sir. a tand Akst that. It's really easy iday Mr. Scarola figured is'k.ft. We have had this case for ni ea s. His client was dismissed in Why didn't he come here in 2012 an Judge, this is no longer a counter, I want my own suit? If he had PAOCS17d --
OTEE COURT: I don't think he needed to that. Why did he have to make a declaration of such, when by operation of law -- again using September 11th, the last iteration of the complaint filed by Epstein against Rothstein only --
÷o
THE COURT: -- there is no longer the trappings, the necessity of a counterclaim. There is no pending claim against by Epstein. It essentially -- it essentially morphs, then or becomes -- better stated - longer applies. It has no application Ad Ar a separate action, because counterclaim no whatsoever. It's a separate action. O
The only thing that it shares n I will give you a chance I apologize. oment.
> MR. LINK: No, you )dA S ,ng great.
THE COURT: Th thing that it no are's is a common case number. Tha Okay. ing -- the only
> MR. LIQ:J That's no longer important.
T ionship There's no longer any
OMR. LINK: Not true. THE COURT: -- Epstein versus Rothstein is separate and apart, and has absolutely no connection at this stage of the game -- now there may be some tangential things that are shared in terms of the nature of the case, and some may even suggest that if they were
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both separately brought that it could constitute a transfer.
MR. LINK: Yes, sir.
THE COURT: Because it involves, at least arguably, the same transaction and occurrences that may have transpired here. It may even suggest the potentiality of consolidation. Though, on further revi it would come before me and there wo argument against it, the likel oo. and I'm just speaking generical Akst not suggesting how I am goin anything that's not it cou e denied because of -- I wrote down h e re Mr. Scarola mentioned it -- confu of issues before the jury and the ntial, the real potential of dice when you inject a convicted felon the notoriety of Mr. Rothstein, who is for the rest of his life, that's made international news, that continues to be shown on CNBC I forget the name of the show that has to do with greed -- and what's happened now with Mr. , in terms of the separate action arguably, A÷sitting in prison le on the Court -- but
1 2 3 4 5 6 7 8 9 that he has brought, albeit, again, having the genesis of the original claim, that has been dropped. But there's nothing that would have prohibited him from bringing a separate action, nothing that would prohibited a long time ago that I S e can think of, because of the fact that the no longer have any interrelationship O legally.
10 11 12 13 14 15 16 Now, again, I will grant factually there may be some . I'm a purely legal standpoint, t s rate action, there is nothing, t I can think of that would necess'fe these two matters to be toget r not suggesting that.
17 18 19 20 21 22 23 24 25 fact that substantial confusion be operable here -- as argued by sel and as written down by the Court, ven before the mention of the word -- and the prejudice that would be done here, may even create a better forum for each of the parties to get their justice that they are seeking, i.e., Mr. Epstein's damages against Rothstein. I am not sure whether causation
becomes an issue or not. I think it's simply a matter of damages, but that Rothstein has the opportunity to defend himself against.
But, on a totally separate no semblance to a counterclaim, has his ASAP' legal theory, and in a case that now bears Isy right to seek justice in a timely fashi well. Why not?
MR. LINK: My turn?
THE COURT: Yes.
MR. LINK: Okay. S4gbanT things to say.
First, Judg ou 'nailed it. In 2012 Mr. Scarola ve come to this Court and said al t things you just said.
What is preventing him from g it now? What's prevening it from ening now? Why can't I follow what I erceive to be, as often is the case, as I mentioned this probably before, the practical nature of a judge like Judge May from the Fourth District of Court of Appeal, taking the bull by horns, as she often does, has the gift of being able to clarify and
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distill often very complex matters, to provide not only legally correct results, but practically correct results, which is why I admire her writing and the way she goes about things.
MR. LINK: As do we, Judge.
THE COURT: Why is it that somehow technicality, which really is -- which in my view, no bearing on the legal CP- o the legalities of the situatio C ther were technically oriented o practically oriented.
But there's no of the fact that this is separate, his really is no longer a cou ji m and hasn't been for ..A the last servo eight years.
Judge, we disagree with I don't think it's that simple, I ly don't. I think we're confusing two ssues, and let me start there.
There is the issue of . It is clearly within this Court's discretion to sever this case. We are not disputing that. We are not saying you should. We thought we were talking about whether the case was at
issue.
But we can talk about and whether it makes sense or not. And this Court needs to understand, no matter what Mr. Scarola wants, Mr. Rothstein is going to be part of this trial, whether we are suing him or we are defending their counterclaim because this case is all about whether can demonstrate that there is a connection between Mr. and Mr. Ro That's what he says caused
We're going at some point in whi 100 percent cert connection. to be at evidence elieve with e can make that
THE CO(i) what? The connection between
l4Sr. Rothstein discussing the Epstein cases nd getting around court scrutiny. LINK: Between Mr. and
THE COURT: didn't you plead when you had the And that's fine. Why it and maintain the claim opportunity to do that? Instead there was a dismissal of the claim against and an abandonment of those
1 2 3 4 5 6 7 8 9 10 11 12 13 claims back years and years ago. And a choice was made to proceed only on a one-count complaint against Rothstein as of September 2011, thereby, as I indicated earlier, losing any trappings, losing any indicia of counterclaim, at least by that S point and likely before that, because ther were several iterations of the complain I!) that were amended, subsequent to the C dropping of from the c m, thereby no longer making it a count It was in name only. It had n significance whatsoever, except
14 15 16 MR. LINK: Your Honor. The legal signif if I can approach, is laid out in u pretrial stipulation.
17 18 19 case law is really clear. When rs enter into a pretrial stipulation, Honor should follow it.
20 21 THE COURT: And I am wholeheartedly in agreement.
22 23 24 Let me stop you there, because, again, you have argued it, and I don't want to make a short trip to that.
4 that slips my memory as far as its name is concern -- spoke eloquently and at length about the sanctity of the pretrial stipulation.
5 6 7 8 9 10 11 12 13 So before I even read it, and what it says here, you quoted from it, that's what I read it. I didn't go back and look at the pretrial stipulation itself, among the (2) just so everybody knows -- among the 1,29 docket entries here. So i anybody to suggest that it don ly by Cic virtue of laxity that I. ' n• review the actual brief.
14 15 16 MR. LINK: (e S \\ here's none of us in this courtro have any doubt about how much time ve put into this case.
17 18 19 ortunately there are probably s filed that you haven't even received filed before we got the notice.
20 21 THE COURT: You got my rather brief response.
22 23 24 MR. LINK: The brevity was hard to miss. We got it. And we filed these before.
25 But the reason this joint pretrial stip
Alit\\ Y
is important, Judge, is you keep saying they are not the counterclaim Plaintiff, and Mr. Scarola and I negotiated this together. We wrote it together, we made changes together. And every part of this pretrial stip and the jury instructions and everything we submitted to the Court sets Acr;r ar this case up to be tried, Epstein again Rothstein, first issue to be cited, ays right in there.
The second issue to be versus Epstein. We've how we're going to try this c ve attached exhibit lists, w ss lists. We do stipulated f c, ur Honor.
So the no part of the pretrial that we red into, long before carola's motion at 5:00 on Friday ng to sever this case, that was ever c ontemplated by the parties.
We entered into an agreement, two lawyers. That's what a stipulation is. We entered into an agreement, Judge, on how we would try this case. Now Mr. Scarola wants to change his mind. This is our contract.
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THE COURT: But it's interesting, because in this pretrial, here is what it says. Quote, case against Rothstein. What, if any, damages were sustained by Epstein and proximally caused by Rothstein?
MR. LINK: Yes, sir.
THE COURT: Parenthetically, continue does not agree with this language for the III (on )hat the issue as stated fails to t ca sation to Rothstein's operation of zi scheme. the quoted provision.
It is that failure to limit the issue hi way as to Rothstein has a potent onfusing the jury in determinin h her Epstein had any probable cause t im damages arising out ofeSe y same circumstances, end of quote.
0 MR. LINK: Which means hat prejudice is gone. That's what he's telling you. He agrees to this issue. He doesn't like the way I framed it. That's the difference. if you limit it,
If I put his language in, which tied it to the Ponzi scheme, he wouldn't have added
1 2 3 that. So all he is saying is, Judge, I agree it's going, but I don't like Link's language.
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That is not him saying I reserve the right to not go forward with this claim.
And when you read through this contract between me and Mr. Scarola, as two officer of the court, and Judge Ciklin's opinio and everybody else's, we are suppose be bound by what we say here.
So that means, yes, yo iscretion to sever cases, you always \\ Severing case, if that's a d the the Court makes, doesn't change t ac Y, that when Mr. Scarola this case, the one we have a pret stip on, Judge, the one you entered rder on, which was the case, was t issue. We don't like it. It is what It's the law.
And one of the differences in what Mr. Scarola say and what the law is, is that every case where there was a waiver or technicality was post jury trial.
The Fourth DCA has said mandamus is appropriate, it requires no prejudice, it
requires you to follow the law.
THE COURT: So what Mr. Link is saying, Mr. Scarola, is that if I grant the motion for, this case is going to go up on a writ or mandamus?
MR. LINK: I don't mean it in a threatening way, Judge.
THE COURT: I don't take it that w
MR. LINK: But that is the trut
THE COURT: McLean Stevens o ce said to, ' , you over my head so many times, i h prints on my scalp."
MR. LINK: the easy fix. We don't need m If you decide to sever the cases atever reason, 20 days from today, carola can notice his case for and you can set it for 30, and we will ere to try the case, and we won't seek a ontinuance.
Al÷c I don't think you should sever them, but that's within your discretion. But you can't fix today what was wrong in May, that's the problem.
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just for record, the case I keep on my bench is Palm Beach Polo holdings, Inc., et. al versus Broward Marine, Inc. I have the original email from the Fourth District Court of Appeal copy. So I don't have a cite for you, but it's from 2015. That's easily accessible if you'd like to read itA ,S
MR. LINK: Thank you.
I know Mr. Scarola said they're exc ted to try the case, believe me, we are really excited to try the c
The evidence that w cintly discovered --
THE COURT: Sn A\\aive the technicality u are so excited about it, then wa he technicality.
MR : I won't do that, Judge.
THE COURT: Well, repeatedly you cate that -- you have indicated today ÷ how excited you are about trying the case.
MR. LINK: I am.
THE COURT: Yet --
MR. LINK: With the best judge in the circuit.
4 5 6 7 8 THE COURT: Another TV show. Quit telling her how beautiful she is, we all know you are lying. You can figure that one k out yourself. But anyway -- that's the husband speaking about.
9 10 (:i... it' 00' MR. LINK: I am excitedly cauti (: us nd I cannot waive the legal right.
11 12 13 14 15 c 4 THE COURT: Well, that' t I'm A s e trying to say about you i ment. The repetitive statemen n the motion is that your client u ncJilling to waive the technical is
16 17 MR. L We don't think it's technic I think that's the difference.
18 I just jump in?
19 20 21 22 23 24 25 OTHE COURT: yper technical under these set of facts. The hyper technicality arises because of what I have already explained in detail. And that is, that this is really not a counterclaim, and hasn't been a counterclaim since Mr. Epstein made his decision to drop It is my respectful view,
MR. LINK: For this case. How's that? So I don't get in trouble with the other judges. Did I save myself there?
Ai
from the case, which only provided the genesis for what was at the time a counterclaim technically. Perhaps even that might be able to be argued because of the fact that it came after the dropping of
as a party to the claim. But certainly, without equivocation, after the second and third and whatever else 0 o7 iterations of the complaint as amend C d a of September of 2011, there was no lance of a counterclaim because he /// w .nger a party defendant in the o de by Epstein against Rothstein o d that's where I'm talking abo a technicality, that despite the s on the part of Epstein C to try the s, as enunciated by Mr. Link repeate
ecc. LINK: Mr. Link's excitement.
0 THE COURT: Well, I presume always that A÷c ounsel is speaking by and for his or her client.
> MR. LINK: I am, Your Honor, but I am personally excited.
> THE COURT: Good. But again, it is without the willingness to waive the hyper
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technicality.
Ms. Rockenbach.
MS. ROCKENBACH: Your Honor, I just wanted to add an appellate point. It sounds like you and I are both mutual fans of Judge Melanie clarity. She authored both of the Fourth DCA's decisions that you are guided by, the genuine parts decision a S C2) well as the Labor Ready decision. submitted to the court, is not h :er technicality in that the ru it's mandatory rule, an May was noting and in the progeny o se that existed before those two de I am referencing the Bennett cas shall, tyls what Judge g and recognizing
h his Court has recognized is that ds could have but did not move to sever case back in 2011 when was ismissed.
THE COURT: Was there a need to do that?
MS. ROCKENBACH: Yes. Absolutely. I was thinking about this. In other instances, I have had counsel come up and
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tried to swap party names and drop, and switch, and -- you can't just do that. You have to actually -- I think there's an administrative order on it. I think you have to go to the court do it.
But in this instance, you absolutely -- Mr. had the onus to come before th4 Court and say a few things. He could h .0P made his case separate. He didn't, (1 e c ose not to. He waited at least sev tars or to come le a motion the at issue as six and a half years, by my on Friday after 5:00 p. to sever the trial an excuse to sev
He didn to sever previously. It was not at sue when he filed his motion on May IrpF 2017. Mr. hat Mr. has presented to this Court And there is no case -- no case that I could -- and I looked -- and there's no case that says, you can cure the mandatory rule or defect of 1.440 by severing a counterclaim or a cause claim.
The last point I would like to make is Mr. Scarola said the rule 1.440 says a
4 5 party. It says, "any party." And that's significant. The reason why it says any party is that rule talks about crossclaims. It talks about counterclaims. It talks about any party.
6 7 8 9 10 11 12 13 14 So any for trial. didn't move ) set his counterclaim for trial. He moved the -- the language is i • otC.ion, and I am sure it's in the C -xtensive docket -- he move to se 's Case, quote, party could have moved to set it And when Mr. moved, he as just Mr. trying unquote, and quote action, quote, u te. tyle cause of
15 16 17 18 19 20 'be made, 441171 So he c y ould have moved to sever at that tim e did not. He waived the right t mely sever the action. And we the Court grant the default against today, unless there is argument to and --
21 22 23 24 25 THE COURT: How does this change, though, your trial preparation if I sever the case today as opposed to I severed it Judge, my predecessor, severed it back in 2011 when it no longer was a
counterclaim, it was a separate action sharing only the same case number?
MS. ROCKENBACH: It changes the ability for to file a ripe 1.440 notice. Because it was not severed, he noticed the entire action for trial when the action wasn't at issue. So severing doesn't cure it.
0 ' THE COURT: Well, I am asking y C u, ell me how, for the record, how it fe is your trial preparation or your p ion at trial? 1 think you nee that on the record.
MR. LINK: Your Honor. It doesn't change our t paration. It changes how we try a ase. There is a significant differe n me being the Plaintiff in the and going first and my burden of proof what Mr. Scarola wants to be is the laintiff.
And he had a choice. He could have filed a separate action, and he would have been the plaintiff.
He chose -- he chose the vehicle. He doesn't like his vehicle today. He decided 4 on Friday he didn't like it. But he chose the vehicle of a counterclaim. That means I go first, he goes second. He hates that idea.
5 6 7 8 So it changes and it's prejudicial if these cases are severed, because they are so intertwined, Your Honor. I can't even thi of a case that's not more intertwined. O
9 10 11 THE COURT: You have the right first if the Rothstein case is efo e this court.
12 13 14 MR. LINK: In that But I have the right to go fir is case because he has the count
15 16 THE CO on't agree with you there. ou have that right?
17 18 Because I am the plaintiff i kSe r case, I go first.
19 20 OTHE COURT: he case against You are the plaintiff in
21 22 23 24 MR. LINK: No. But the first issue we described in the pretrial stip that's going to get tried is my issue against Rothstein, that means I go first.
MR. LINK: I don't go first in the trial.
THE COURT: That's precisely the question I asked and it was not answered correctly.
MR. LINK: Sorry.
THE COURT: That's okay.
I just want to make sure that we a clear that if consideration is given trying both of these cases tha ein would be able to prove his • claim against Rothstein. S
> Yes. MR. LINK:
A(
THE COURT: on the count i -- we are calling it the counterclai the claim brought by against ein clearly, in that particular ac(tcsl, esses first. it relates to issues Mr. Scarola would be bringing his
MR. LINK: Absolutely, Judge. I think I spoke poorly. I appreciate you correcting that.
But the way the pretrial is setup and the way the case is structured, the first case the jury will hear will be my case
1 2 3 against Mr. Rothstein. Then Mr. Scarola will present his case, and we will defend that.
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So one of the things that's in my mind that I can't let go of, is how do we sanitize Rothstein from this case -- that's what Mr. Scarola wants to do -- when his whole claim against is we wrongly filed pleading that connected Mr. Rothstein. That's what Mr. Edw has said has kept him in anxiety eve • e day since December tion to Rothstein. 2009, th
So, they h show that we have probable cause to make that a tion. he ' urden of proof to
se you, Your Honor, when we get gh the evidence, you will see there was ty of reason to make that allegation.
So I don't know how you sanitize Rothstein from this case. So if he's going to be in case, isn't it more efficient to do it once? That's what the pretrial says. Mr. Scarola and I contracted to that.
The issue that really is the
1 2 3 4 5 6 7 8 struggle -- and I get it -- the struggle is, yes, these two cases are intertwined. Is there some machination I can do that would put this case at issue? And the answer is you can't. There's nothing you can do to cure the May defect, Your Honor. That's the problem. I know that's what you would lik to do. I get it.
9 10 11 0 THE COURT: Let's take a five-m nut break. We will be back moment- We will be in recess. Thank y.
12 (A recess was had - 11:24 a.m.)
13 14 THE COURT: did you finish your argument o i sue?
15 16 17 18 MR. L confident I did, but, you know, i and for me to turn down an opportu to say more. But, no, Your I think we said it all.
19 THE COURT: Thank you very much.
20 21 22 23 24 25 Mr. Scarola, the one thing, again - well, not the one thing -- multiple things that went through the Court's mind when I was dealing with this was the question I posed to Mr. Link, and that is, that the pretrial contemplation of the case -- of the
A'itS:14.)
action being tried together. And the anticipated response to my question that trial strategy -- albeit now that we have ironed out the way in which the order of proof will proceed -- could be materially effected, and thus prejudicial to Mr. Epstein's position if the cases are no tried together as noticed.
Your thoughts.
MR. SCAROLA: Yes, sir. C understand what unfair prej •ossibly arises to Mr. Epstein wh jury is instructed that the onsider these cases separately
The onl ej aice would arise if Mr. Epstein ermitted to do what it is now obv r. Epstein plans to do, and is to use his case against Rothstein to improperly influence the j ury with regard to Mr. ' claims against Mr. Epstein.
> The Court recognizes the fact that there is tremendous danger of confusion and prejudice if these two cases are tried together, following the plan that it has now
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become evident Mr. Epstein plans to follow.
What unfair prejudice arises if these two cases are tried separately? The answer to that question is, there can be none. And one of the reasons why there will be none is, the separate case against Mr. Rothstein, I predict, will never be tried.
AkAr
If it is ever tried, it's a one-da trial. It's a jury selection withou opposition; there's a presenta a case without any opposition; the closing argument without any op i. The case is over in a day. t they get, if they get anythi an uncollectible judgment.
THE CO';i:.) What about the pretrial stipulate Judge Ciklin speaks, again, about the sanctity of the pretrial ulation. at
MR. SCAROLA: Yes, sir.
THE COURT: He calls it the attempt is to, quote, avail ourselves of the opportunity to once again stress the tremendous efficacy of The Pretrial Stipulation. He puts each of the words,
1 2 3 4 5 6 7 8 "The Pretrial Stipulation" in capital letters -- strike that. In capitals to start each of those words, and drops a footnote stating, quote, out of respect for and to dignity the use of The Pretrial Stipulation we have intentionally capitalized the name of this important trimgtk efficiency tool, end quote.
9 10 11 12 13 0 , MR. SCAROLA: And Your Honor, h C s n ted the operative language. Your o has noted the reservation thatAL rued in that pretrial stipulati Nt concern for prejudice.
14 15 16 17 18 19 20 21 in in that pretrial stipulation s ¢ports the position that is being ar a on behalf of Mr. Epstein, and tha that we have somehow agreed we are going to delay our right to 1 by jury while we wait -- perhaps A÷f orever -- for the claim against Mr. Rothstein to be placed at issue. So there's
22 23 24 They can't get a default today. There's been no notice. I don't know whether they're ever going to get a default.
25 We become hostage to their decision 1 2 3 about whether they are going to proceed against Mr. Rothstein if Your Honor accepts the argument that they are making.
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 uickly under Now, I have had substantial experience before this Court. And your Honor is not a Judge who has ever been deterred from doing what you consider to be the right thing to do because there's the threat of an app They want to petition for writ f C court believes that the arg hat are being made today have m will know before we finish ou inary screening of the jury on ( T should be none -- whatever concerns Honor has will get resolved very those circumstances.
21 22 23 24 If there has ever been an argument for waiver -- if there has ever been a clear demonstration of no prejudice, this record establishes that.
25 Judge words, "Depending upon the
mandamus, bring it on. And if pellate
The Cou act immediately, knowing that this c s going to proceed to trial. And what concerns Your Honor has -- and
circumstances, the mandatory provisions of rule 1.1440 may be waived."
They have been waived. They agreed that this case was going to be tried without any further delay starting next week. They told Your Honor they would be ready for trial. They told Your Honor they are not asking for a continuance. They told Yo Co Honor they are ready and anxious to ry this case.
There has been a waive technical objection tha exist, but there's no technica tion. There is no technical object'
This is ep fate claim. It has proceeded a a eparate claim. It was noticed trial as a separate claim. is nothing in the pretrial suggests otherwise. stipulation
We have not stipulated with regard to anything having to do with the Rothstein case, because we don't represent Mr. Rothstein. His signature and no signature of counsel of his appears on that pretrial stipulation.
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This pretrial stipulation relates to the trial of what is a separate cause of action by against Scott - excuse me -- against Mr. Epstein.
Judge May, again, "Here the complaint was filed in 2002. The parties had adequate time to prepare for the hearing, and the trial court had provided the parties the requisite 30-day notice. There ambush or violation of the pro du 1 safeguards that Rule 1.440 gned to protect. That's this c
A
There is nothi at very best, a hyper-technical a that is being raised. The fusing to waive it, because the t want this case to ever be tried.
l4SAnd y if Your Honor is concerned about mountain -- the avalanche of paper with hich this court has been assailed, I can assure you that it isn't going to stop if we don't start on Tuesday. It's going to get worse.
÷
The defense, in violation of this Court's order, last week listed 724 new
1 2 3 4 5 6 7 8 9 10 exhibits that they want to use. And they are going to use this hyper technicality to say the pretrial order was invalid because the case was not at issue; a new pretrial order needs to be issued; discovery is not yet closed; we have an opportunity to proceed to take additional discovery; and can amend our exhibit list, and we can O include 724 new exhibits, and more w ich they say they are still findin
11 12 13 14 15 The only way to put an l^ this is to proceed to trial as or informed everyone we would, certain terms, the last time t ase was reluctantly continued by urt.
16 17 18 19 So aga y client has been waiting for nin rs to clear his name from the atory allegations that were made nst him in a maliciously filed lawsuit.
20 21 22 23 24 25 He was accused of heinous crimes, of being associated with one of the most massive Ponzi schemes in history. And the only way he can effectively exonerate himself is by getting his day in court, and he deserves to have that now.
So the solution is very simple. Whether it's a claim or a counterclaim, you have the discretion to sever it. It gets severed. The case is at issue. it goes to trial.
We are ready to proceed, and we ask you for the right to be able -- enforcement of the right to be able to proceed. Thank sir.
THE COURT: Thank you, Mr Thank you, Mr. Link and Ms. well. ola. ach, as
tneSk'aCtc I hand the Court one c apologize. It's cited in my May I approach?
THE CO Sure. MS CH: It is the Bennett Because --
OTHE COURT: I have it. Bennett versus +Continental Chemicals?
MS. ROCKENBACH: Right. And just to respond to Mr. Scarola with regards to --
MR. SCAROLA: I'm sorry, Your Honor, can we put an end to this, because there's a
lot that we need to do?
THE COURT: I thought that she just wanted to mention the case.
MS. ROCKENBACH: I do.
THE COURT: I have it here and I have it highlighted. I have reviewed the highlighted provisions of the case. ASA V
MS. ROCKENBACH: Thank you. It is IS' 0 about the fact that you can't cure t e defect.
MR. SCAROLA: I'm sorr objecting to further argument, Yo and ask that we please move
THE COURT: give you a minute to finish up.
MS. : Thank you, Your Honor.
ett, the party, just like dwards is doing here, suggested to the t to sever in order to fix the rule .440 deficiency, and the appellate court said no you can't do that, and "The procedure for setting actions for trial is simple, but many attorneys are careless about it. They serve a notice for trial prematurely. This requires a motion to
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strike. And there's not excuse for failing to follow the rule." And it goes on about how the rule is not directory, it's mandatory.
So this Bennett case speaks to exactly AQI5Ar what is evolving here in terms of the issue. It doesn't correct the defect. Thank you.
THE COURT: Thank you.
MR. SCAROLA: Does Your Ho or ant a response?
THE COURT: No.
MR. SCAROLA: sir.
MS. ROCKE have a moti fault that we filed simultaneouLy) And I have a proposed order for the Your Honor, we do
THE COURT: Thanks.
0 I don't know if you've looked at the 'Brien versus Florida Birth-Related Neurological Injury Compensation Association, a case which is from the Fourth District, which indicates that it negatively treated the holding -- at least one of the holdings in Bennett versus Continental. And
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it is a Fourth District Court of Appeal case, similar to the reliance by Epstein, principally, on the Gawker versus Bollea case. Bollea, if I recall correctly, is Hulk Hogan from wrestling.
MS. ROCKENBACH: Correct.
THE COURT: But again, this Labor 'lilt case, authored by Judge May that we hav(2)4 been speaking about, declined to extend khe Gawker case to its handling of abor Ready case from the Fourth.
I haven't seen the i case. will give it a real can be as compre I ook, so that I lye as possible.
MS. R 1030? Is that at 942 So.2d
TH\$ URT: It doesn't give me a ion in this. It just says Fourth r rict Court of Appeal. March 18th, 1998 the date of decision. It doesn't give me a cite to report.
But I can look it up real quickly. 710 So.2d 51.
MS. ROCKENBACH: I am reading that case right now, Your Honor.
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THE COURT: By the first blush it doesn't look like it has anything to do with --
MR. LINK: We don't see a reference, Your Honor.
THE COURT: It talks about fundamental error, is really what it goes to.
It cites to the case and its citat is, quote, We have not been as willi some of our sister courts to f fundamental error where an on had been raised by the tria -- strike that -- had been rai d the trial court. The error could been corrected and a new trial wo a been unnecessary.
One o h string of cites cites that Bennett There is no specific cation of that case to this one here.
My ruling is as follows: The Court has n preparation for this hearing carefully weighed the respective positions taken by the parties. And I appreciate the well-written briefs and the well-articulated positions taken as it relates to this issue.
1 2 3 4 5 6 7 8 9 10 11 12 13 District, as far as the Court is concerned, is the Labor Ready Southeast, Inc. versus Australian Warehouses Condominium Association case. But not so much for the Court's position that it's taking as it as a secondary proposition in its ruling A(4Ar relates to waiver, which the Court will use today, but more so the spirit and inten 5 ) the case and the message that Judge (. ay nd her colleagues, in my respectf w sent to the trial courts and the ors, particularly here in th District Court of Appeal jur nal area.
14 15 16 17 18 19 The primary in and what the Court is going to m' e here is that it will sever the c and will try and proceed with th ards versus Epstein matter ncing as scheduled on Tuesday, h 13, 2018.
20 21 22 23 Today being, for the record, and for ease of review, March 8th, 2018. Reference being made to Friday, March 2, 2018. So, again, for ease of review.
24 25 Because, frankly, when I'm reading appellate briefs sometimes from the county
Isy
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court, it makes it so much easier when the trial judge sets forth the dates as opposed to having to go back and try to reconstruct the timeline when the court is making its ruling.
The is based on the fact that there is no legal relationship between the, case against Epstein and the da claim by Epstein against Rothstein s lel on a singular-count-amended compl - again, forgive the lack of specifi to the iteration of the amende p int -- but again, as late as S 117 e and a half years -- and the fact that the Epstein je ff led of 2011 -- six in its capacity, as reasonable lawyers, to have secured the def if it sought same, so as to, in faith, maintain its claim against
I have no recollection whatsoever of anything coming up during the approximate four years that I have presided over this case in division AG of anything whatsoever having to do with Mr. Epstein's prosecution of that one-count complaint against
Rothstein from that September 2011 amended complaint.
Meaning the entire focus of this Court in the multiple hearings that have been held, in the deluge of paper that -- in part the Court brings on itself because of its preference to have the hard copies, as opposed to utilizing modern technology solely the computers. It's much easier me, frankly, and my eyes, phys to have the paper. It's not b necessarily wanting it. ore so because of it's easi o y eyes and causes much less strai eyes than having to rely on just puter copy. I wanted you to know as well.
c ounterclaim, but in this Court's view is rance in this case, whether it one in September of 2011 or even before when the -- what is called the not. It may have been because at the time back in December of 2009 -- if I'm not mistaken is when the claim was brought in against Epstein. That's the approximate time.
So now we're dealing with approximately seven years ago -- seven plus years ago from the time that the action was brought by Mr. against Epstein.
Technically, because there may not have been an order signed by the Court, whatever AS closing documents that are usually and customarily dealt with in closing out a file, may not have been in the court that time, perhaps, technicall constituted a counterclaim. deniably, the trappings, the name gal effect was not a countercl 11, and certainly illik le bore no semblanc a 'counterclaim once Rothstein dr dropped Ed -- I apologize -- and proceed t 4100lely against Rothstein. wards once Epstein
And whether took place or a rate claim would have been brought in ecember of 2009 -- albeit because of the potentiality of the pleadings not being closed, so to speak, as to at that particular time, so it may have been called a counterclaim. But certainly, and without equivocation, once that case shifted -- now
4 5 Mr. Epstein didn't have to shift it. But it was by his own doing. He shifted it, because he no longer had as a defendant in the case. He took that operative step.
6 7 8 9 10 11 12 13 So it was in name only that this continued having the moniker of a counterclaim, but it wasn't one. It ha genesis in Epstein versus Rothstein, rds and L.M. case so as to permit s to bring the claim against Rot But undoubtedly, it no long counterclaim 4' ,, for at least the pa se or eight years.
14 15 16 And in name remove this unquestiona ere a hyper technicality. am not going to m the docket on what is
17 18 19 20 21 22 23 24 25 ÷n ot believe here directed by the Fourth District of Appeal to do so, I will, as always, duously follow their order. But I do -- because the focus of the last eight years has been against Epstein. claim And in reality, in name only, since the dropping of from Epstein's case, his own voluntarily dismissal of, creating a separate
4 5 6 7 8 9 10 11 12 13 14 claim, albeit having its genesis, as all malicious prosecution claims do, in that prior action, there is nothing that has been argued to today to suggest that a separate action has been, could have been, and, in fact, is at issue here. And that has been aware of, juxtaposing the Epstein versu the focus, and the only focus that I am S C. ) Rothstein case here; that being the ly focus has been for the last se eight years; and clearly the four that I have been presiding over 's Case, solely the versus malicious prosecution clai
15 16 17 18 And aga not going to be bound, and I don't k any trial court should be bound b j ye choice of words that may have used to name a given pleading.
19 0 It's a separate claim, and it has been.
20 21 22 23 24 25 4÷A nd clearly and without equivocation has been since, somewhat ironically, what has been brought this matter before the Court is the September 2011 claim that was solely brought by Rothstein I mean, by Epstein against Rothstein.
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It essentially highlights the precise position that is being taken by this Court legally, factually and practically. And that's the best that I can do.
MS. ROCKENBACH: Thank you, Your Honor. AQIcjair I have proposed orders that just simply grant Mr. motion to sever and denying Epstein's motion to remove.
And I also have a default for Honor, along with the motion fo de ault, if you would like to entertain, well.
THE COURT: Any ob.
MR. SCAROLA: represent Mr. Rothstein, Y Ho or But I don't know how that deft be entered without notice to M1 Bbthstein.
He a counsel, who has appeared in case. That is, in that case. I don't whether -- I'm not arguing. I'm e xpressing a concern.
THE COURT: Excuse me. And I apologize for interrupting.
What I was going to say is this. If he has had representation in the case, then he would have to be noticed in order for the
Court to enter a default.
MS. ROCKENBACH: Understood.
THE COURT: And since this is, again, a later iteration of a complaint to which my understanding was -- he did respond in some fashion originally through counsel or not? Or was he defaulted from --
AS 1 MS. ROCKENBACH: Earlier on. I'm by co-counsel early on.
We served it on Mr. Nurik Mr. Rothstein's counsel. T ion I am asking is whether it wa i d for hearing today. It went out st ay.
THE COURT: ouldn't have been an appropriate ce So it would have to be re-noticed Nurik, and we will proceed accordi once what appropriate notice has
iiiiiIIII. ROCKENBACH: Correct.
THE COURT: I just want to make clear, as well, that I have taken into account, by virtue of the ruling that I have made, the contention that somehow trial strategy - and that was at the behest of the court. I don't believe it was argued in the motion.
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virtue of the . But again, in my efforts to try to be as fair as I possibly can to both sides, I raised it to hear from Epstein's counsel what, if any, prejudice would be done by
And again, respectfully, again, in my view, I believe that the response that was the() Court's position here. And, that is th added reason for the Court's s- ce is the fear of the Court, agai rtue of its going through thous pages of documents by now, h in cores of motions and being expose ore, reviewing deposition t cr ts, having the anecdotal knowledge t t he Court has of Mr. Rot s criminal activity, and the that it inues to be, because Attention that remains -- just an example, being a CNBC special that continually runs on American Greed, I believe is the name of the show -- that this biggest Ponzi scheme in the history of state of Florida remains very fresh in the minds of many. provided is, in fact, supportive of is and was, and potentially of the media
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And hence, a second reason, a third reason for is the absolute danger of confusion relative to a jury's consideration of ' cases versus Epstein's case against Rothstein solely.
While facts overlap, the Court can consider and would consider the confusion issues as well as the prejudice, undeni that would be done here if both of these cases were tried together.
Clearly, as I indicate inception of this hearin am not pleased by the events that ur here. No court should be. The s several fold, including th dual who is sitting here, who u I tely is responsible for the executi t that trial order. So I have, degree, blame myself for the execution hat order. And ultimately I bear the r esponsibility of that, and I recognize that.
> But at the same time, as I have mentioned on numerous occasions before groups of lawyers, who have been kind enough to ask me to speak on these types of issues,
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just generally in terms of how we do things here, tips from the bench and the like, we so rely on the bar and exceptional lawyers that we have here in terms of our daily business.
That doesn't exonerate the Court in executing the trial order. But it sheds some light on the busyness of the Court the fact that we are, at the present as you know, responsible in eac the civil divisions of anywhere 1,100 to 1,200 cases to 1,5' to ses in some divisions. The low r is done by ,13 f At e design because o f our judges has agreed to handle th the tobacco litigation A% cases, so t t udge has a reduced caseload, deserve
But it does highlight our expected ance on counsel so that these things on't occur in the future. And it's a good reminder to all concern about how these things can crop up.
But here hyper technicality should not stand in the way of a pending matter of over 3,000 days and nearly nine years.
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And again, I do not want this order to reflect a suggestion that the Court is willing to deviate from the dictates of 1.1440 -- strike that. 1.440. But instead, as I indicated before, the primary impetus here is one of for the reasons that I have tried to state as clearly and concisely as I can, balancing the right strategies and obligations of each p rty s concern, balancing what I perc o be in the best interest of justic concerned, balancing th Mr. Epstein to proc inst Rothstein, recognizing the separate nat of ' claims against Epstein; an t fact - but at the same
4 while facts may overlap, it does xtinguish the proposition that the t has indicated, and, that is, whether everance be done now, six months ago, seven years ago, or eight and a half years ago, from December of 2009, it would have been the appropriate and right thing to do under these particular factual circumstances.
All right, we have bumped up now
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against the lunch hour.
What do you want to handle next?
MR. SCAROLA: The evidentiary issues that have cropped up in past week or so.
MR. LINK: Would Your Honor mind entering the orders first once we agreed to the language? have
THE COURT: That's fine.
Off the record.
(A discussion was held of record.)
Your Honor?
THE COURT: Aga, , n1mmendation to our court reporter, is exceptional and always such ea re to work with. We appreciate r cork.
h s a case that -- from the Fourth ict Court of Appeal that criticizes one r y now former colleagues in terms of the rder saying, "for the reasons stated on the record."
So in an abundance of caution, I think it would be best suited for that portion of transcript to be transcribed. You can do it rush if you need to.
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I am sure Ms. Sonja would be happy to oblige to the best of her ability. And, really, only that portion of it so that - my decision would need to be rushed, I think.
MR. SCAROLA: Attached, for the reasons stated on the record. Attached.
THE COURT: If both sides feel thaCm4.) that's sufficient.
Ms. Rockenbach, is an app v specialist. I defer to her ty.
Mr. Scarola, I kno ve also been involved in numerou whether directly or indi but your name llate decisions. appears on m
ncede to your expertise only the fact that one of our most Again to brin cted and one of our former circuit t judges was criticized for the order in he manner in which it's being presented to me.
÷
MS. ROCEENBACH: You're correct. I am aware of that decision, unfortunately. And I would ask the Court for a break so that our court reporter could type up the -- not
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just the ruling, but we need the entire hearing transcript in order to have a complete record.
So we would ask for a change in court reporters, as reluctant as I am to do that. I know it's my duty to my client and to the Court.
THE COURT: I respect that. And a you will have to deal with Sonja dir
For the record, again, ize for not using her last name. nown each other for many years. A ow she takes no personal qualms it, ecause we have spoken about th fo e. But at the same time, any re the court, I would ask that they e u my lack of formality here.
MR OLA: We have no problem with ing for lunch at this point so that we r arrange a change of court reporters.
The only appeals I remember, Your Honor, are the ones I lost.
THE COURT: Again, thank you for your concerns and your patience as well.
I also recognize and thank Ms. Musgrave for being here.
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We will return back at 1:30, so as to give you all some logistic assistance to try to arrange, as you need to, for the court reporter and transcript purposes.
Keep in mind that we will go to 4:30 today. And also, that I am not available tomorrow. I have several panel commitment for the bench bar tomorrow. And so tha would preclude any further considera do have a full day of hearings well.
MS. ROCKENBACH: Y o Or, before we break, anticipating p tial adverse ruling, I have io to stay the matter, which ately reviewable as well. is the
h ion to stay that I have I did nticipate this court severing the It was only the adverse ruling of he removal of the case from the trial docket. So I would like to revise that motion. But I would make an ore tenus motion to stay this action in order for Mr. Epstein to file the petition for writ of mandamus as to the order denying the motion
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MR. SCAROLA: We would clearly object to a stay, Your Honor. It would effectively be granting the same relief that the defense has been unsuccessful in obtaining.
0 We are confident that Your Hono 's order will withstand appellate . And a petition for writ of mand an expedited proceeding. s e we will hear from the appel rt if they have whats r Yo question the proprietary y ie er that Your Honor has entered. any reason
T : The motion to stay from Court is denied.
OMR. SCAROLA: Your Honor, I expect what ÷e will deal with after lunch are issues that relate to the most recently disclosed documents, including, in particular, emails.
THE WITNESS: That's what I anticipate.
MR. SCAROLA: And I have a timeline, which I provided to opposing counsel. I am
to remove the case from the trial docket and a petition for writ or certiorari as to the order granting Mr. motion to sever.
THE COURT: Mr. Scarola.
1 2 going to hand that to Your Honor in case you want to chew on that over lunch.
3 4 MS. ROCKENBACH: Your Honor, if I may approach.
5 THE COURT: Sure.
6 7 8 9 10 MS. ROCKENBACH: I have one submission to the Court. It was hand-delivered yesterday before we received your judic submissions. But it relates to hi issue. assistant's email about no future
11 12 THE COURT: I can't pr will have time to read u that I
13 MS. ROCKENBACH e 'S Un OFstood.
14 THE COURT: do the best I can.
15 /4" MS. ROCKENBACH: Thank you very much.
16 17 18 THE COUEV Thank you all again for your ex Wer\<4;1 be nt presentations and arguments. in recess until 1:30.
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20 21 A'i tc ...) 4 (The above proceedings were concluded at 12:08 p.m.)
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A
______________________________________________________________________
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#### COURT CERTIFICATE
STATE OF FLORIDA : SS COUNTY OF PALM BEACH )
I, SONJA D. , certify that I was authorized to and did stenographically repor foregoing proceedings and that the transc c true record of my stenographic notes
> Dated this 8th % < CG arch2018. ecy '\ PALM BEACH REPORTING SERVICES, INC. 561-471-2995
MR. SCAROLA: They were added by anew list
filed on March 5th of 2018.
THE COURT: Okay. Just:to put this into perspective, March 5th would have been Monday of this week, today being March 8th, and the trial starting on March 13th, presuming it begins as scheduled.
MR. SCAROLA: Yes, sir. clear that while the 724 wer- listed on a prior exhibit list befor some of those documents were discl sover the past three weeks. So I am sting to your Honor that the first ne w got of an intent to attempt to use th c nts was March 5. The first notice we g ofj intent to attempt to use some of these tcurrents started some three weeks ago as new 7 disclosures were sent to us. Ihksw) want to make it
AR And again, this is from memory, but I think there may have been three separate groups of documents that were sent to us not covering all of the 724. And obviously, your Honor knows from the materials that you have reviewed much attention was focused on documents that we contend and have contended for eight years are privileged documents.
Documents listed on a very specific privilege log.
#### PALM BEACH REPORTING SERVICES, INC. 561-471-2995
And those are 45 of the 724 newly-listed do
And those documents were brought to our t Lion just last week.
So my suggestion to your Hpnor is that we deal
first with the procedural issue because, as I said,
that will narrow issues significantly. And then
there will still remain some substantive issues
with regard specificaily to any attempted use of
privilege als.
Now, 0 Honor heard from both opposing
coun at I have accused them of having stolen
ocuments. I assure your Honor that that's not
t e case. I have not accused them of having stolen
the documents. What I have said in repeated
'4 6 And these documents, if your Honor has had an
communication is that these are stolen documents.
opportunity to look at the timeline, were very
clearly at this point handed over by the bankruptcy
court to for one purpose and one
purpose only; and that was to print them out,
21 stamp them so that they could be turned over for 22 privilege review by theEM Jaffe law firm, 23 including specifically Brad IIIMS
24 THE COURT: Let me stop you there so we can 25 put this in context.
> • • • PALM BEACH REPORTING SERVICES 561-471-2995
> > 8
1 Joe Ackerman, as I r o, was representing 2 Mr. Epstein for some f time, and he was at 3 .'that juncture as Ait with .the firm 4 in some cap y.
5 MR. SCAR : Yes, sir. That's correct.
6 THE COURT: So if I'm understanding this 7 correctly then, the bankruptcy court turned the • . documents over to
11 12 13 THE COURT: So that I understand. I know during a very tumultuous period of time these would be the Rothstein firm's employee.
14 15 MR. SCAROLA: Yes, sir. Let me go through this and give you a quick overview, although all
MR. SCAROLA: Did your Honor want me to get into that now? I'm happy to do that.
2018-3-8 Hearing Transcript - Afternoon Session 16 the details are provided in the timeline that I
17 provided to your Honor.
18 What happened was that almost immediately 19 following the implosion of the Rothstein, 20 Rosenfeldt, Adler firm a trustee was appointe 21 the bankruptcy court to take control of t 22 and that trustee took control of all firm's 23 files and all of the firm's electr is ata, 24 including all of its e-mail ry s. So it is the 25 trustee that had possess 1 of these
> i PALM BEACH 1\$§117 iG SERVICES, 61-471-2995 INC.
\\
1
AS " 2 pstein through counsel, and at this point 3 s the Fowler firm, issued a subpoena in our civil litigation, then pending in front of Judge for the trustee to produce all of the e-mails. Judge Ray, to whom that subpoena was referred, Judge Ray appointed Judge Carney as a 8 special master to make a determination as to what 9 could appropriately be turned over because 10 obviously these were e-mails that related to a wide 11 variety of cases. It was the entire contents of
9
12 the e-mail server of Rothstein, Rosenfeldt, Adler, 13 and it was recognized that those e-mails could 14 contain attorney/client and work product privileged 15 materials. So Judge Carney was appointed a special. 16 IIIIII to make a determination as to what sh 17 and could be turned over and report bac 18 Ray.
19 Judge Carney gets 27,000 e-mai d Judge 20 Carney says, "I don't have alK7Aciation - as to 21 what may be privileged here. We need to come up 22 with a procedure so that I can be advised of what 23 privilege assertions are being raised." So Judge 24 Carney says, "I want what was then the newly-formed 25 law firm that Mr. is working in, I want
> PALM BEACH REPORTING SERVICES, INC. 561-471-2995
> > 10
1 Jaffe, Weissing, , Fistos and Lehrman".--
2 THE COURT: Jaffe, right?
3 MR. SCAROLA: Yes: Jaffe.
4 THE COURT: We can just refer to them as
5
6 MR. SCAROLA: All right. "I want Jaffe
2018-3-8 Hearing Transcript - Afternoon Session 7 to go through these e-mails and prepare a privilege
8 log. Let me know what's privileged here, and then
9 I'll make a determination as to what's going to get 10 turned over."
11 The response from Mr. Edward through me is 12 this is 27,000 e-mails, they want them, th hou d 13 be responsible for printing them and B tes raping 14 them and delivering those printed le!ptes stamped 15 documents to us for our revi nd Judge Ray 16 enters an order.
17 And Judge Ray s s order -- and it's 18 quoted in relev t the bottom of the first 19 page of thi me e -- Judge Ray says the law 20 firm of a kite will print a hard copy of all 21 the s contained on the disks with 22Il.bers added and will provide a set of copied, 23 s tilly peddocuments to the specialMill and an O\vs to happen at that point was they we o Ke over the ministerial task acers of the court of bearing the ex tturn these documents over to 7a Brad for purposes of prep rtn ivilege log.
OURT: For lack of a better metaphor, h, wasn't that a fox in ahenhouse type of situation?
MR. SCAROLA: Well, sir, were these not officers of the court, the answer to that question is yes. These were adversaries who were being given control over these documents, but they were adversaries who had a sworn duty to follow the Court's direction. And we had every reason to
#### PALM BEACH REPORTING SERVICES, INC. 561-471-2995
12
1 believe that this respected law firm and these 2 respected lawyers would do exactly what they were 3 told to do.
4 Now, we know that the disk that contained that 5 information, as has been conceded lestein's 6 counsel, was formatted on De 10 -- excuse 7 me -- December 8th of 201'
8 THE COURT: Wh mean by the disk was 9 formatted?
10 MR. SCAROKA: hat I mean was the documents on 11 that disk were divided into three different 12 categories.
13 THE COURT: And that was December 10?
14 4‹; MR. SCAROLA: December 8th of 2010.
THE COURT: Thank you.
-4 3"7 after being ordered not to retain any copies MR. SCAROLA: So within approximately one week 18 there's a disk that is formatted by 19 which is the disk that is now in the possession of 20 Jeffrey Epstein and Jeffrey Epstein's counsel. And 21 it contains without a doubt those documents that we
2018-3-8 Hearing Transcript - Afternoon Session 22identify on aprivilege log that is generated as a
23consequence of that process. It contains those 24privileged and attorney work product e-mails. And 25that assertion of privilege has never been
> PALM BEACH REPORTING SERVICES, INC. Aq0 561-471-2995 •
1 overruled.
THE COURT: Did the Spedf:14,4gistrate Carney or Judge Ray ever.hold.a hearing to determine the nature of the privilege? Was that ever called up for a hearing?
C: O
7 8 9 0 MR. SCAROLA: What happened, your Honor, is that udge Crbw, when he learned of the circ Chitances of what was going on in bankruptcy communicated to Judge Carney, "This subpoena was issued in my case. While I respect you and the work you are doing, it is my job to decide what is relevant and material in my case and it is my job 13to determine issues of privilege in my case." That 14short circuited the work that was going on in the 15bankruptcy court, and Judge Carney never issued any 16 rulings in that regard.
13
17So it then became a matter over which Judge
was exercising jurisdiction to determine how the subpoena issued in the Circuit Court State Court case, how that subpoena was going to be responded to. So our privilege log goes to Judge 22 Crow.
23And there's some back and forth about whether 24the privilege log is or is not ader tt d there 25is adirection with regard to certain requests for
> PALM BEACH REPORTING SERVICES, INC. 56 4 1:449.95
( Si 1. documents.o e0 vilege log. Specifically, / there i e est Number 13, which asks for 3comm6:Cat ons between Jaffe and the federal 4vernment and communications between Jaffe 5a d any members of the press. And those are \r: t privilege log, and those restrictions have er been lifted.
20 21 22 23 Now, in some of the communica ons that have gone on back and forth you mayEike seen reference to adisclosure to the Ra ack defendants. .".. Excuse me. The Razo a k aintiffs.
24 25 THE COURT: Ng wthe litigation led by Mr. Scherer
4 5 6 . MR. SCAROLA: That is correct. The Conrad Scherer firm was involved in that litigation, and the Conrad Scherer firm was also interested in getting to take alook at whatever relevant e-mails might have been in the hands of the bankruptcy trustee, and then got turned over to us.
7 8 Well, there were direct negotiations in which Iwas a personal participant with the lawyers for
2018-3-8 Hearing Transcript - Afternoon Session So we have a privilege log in place. It
0
ALM CH REPORTING SERVICES, INC. .561-471-2995
15
9Conrad Scherer, and an agreement was reached with 10the lawyers for Conrad Scherer because, as we have 11told every judge before whom we have appeared with 12regard to these matters, we're not attempting 13hide anything. You want to conduct an in-14 15 16 inspection, we want you to conduct an inspection because it will confirm ta re not attempting to hide anything.
17 18 19 20 privilege, you 21 22 23 24protect our work product privilege as well. 25Some of that litigation is still ongoing right now. We will turn over any at you consider appropriate for us to But we have no ability to waive ient's attorney-client clearly con+ formation that originated with clients. And we are in the midst at this point of stilt-pending litigation, and it is important for or, and some of these e-mails
> PALM BEACH REPORTING SERVICES, INC. 561-471-2995
> > 16
1That's the Crime Victims Rights Act case.
2So there is avery legitimate reason for us to 3be concerned about protecting both the work product
4 privilege and the attorney/client privilege, 5 particularly protecting it from Mr. Epstein, and 6 particularly protecting it from Mr. Epstein now 7 that we know there was a clear violation of the 8 federal judge's order with regard to the matte n 9 which these materials were to be handled.
10 Interestingly -- and I don't know e 11 there's any relationship or not ortly 12 after this disk is improperly ned by • 13 , that withdrawing from 14 the case. So they'r And apparently the 15 disk sits there a until a request is made 16 to turn ove o Fowler files.
17 An have been told is 18 init or whatever reason, resists that 19 20 7. 4riest, but Mr. Link and associates go down to Miami, they review files, they get their hands on this disk. There is a significant delay between their appearance in the case and when they finally go to look at the files. Then there's 24 a two-week delay between looking at the 25 files and receiving the disk. And then
> PALM BEACH REPORTING SERVICES, INC. 561-471-2995 •
1 2 there's a two-week delay between receiving the disk and starting to --
3 THE COURT: Excuse me just a minute.
4 5 Bailiff, see what may be transpiring outside, please. Pardon me. Off the record.
6 (Discussion held off the reco
7 THE COURT: Go ahead. I -'old;
8 9 10 11 12 13 14 15 6 MR. SCAROLA: Your Ho r l 7 the overall scheme of things, I do ink that those delays make very much di ce at all. But these are the lawyers wh y ur Honor has noted, announced to the Co r they were going to be ready for trial 0 later, and here it is just weeks befor s case is about to begin that they are reviewing 36 boxes, or over 30 boxes of files. Might have been 31. I think 36 is the number. But boxes of files that never even got reviewed by them.
19 So those are matters of significant concern to 20 us. But the matter of greatest concern is that 21 once it becomes apparent that these are documents 22 that are listed on our privilege log, a privilege 23 that has never been challenged, a privilege that
24 remains in place, and we notify opposing counsel 25 here is our privilege log, here are the numbers,
> PALM BEACH REPORTING SERVICES, INC. 561-471-2995
1 the I'll' numbers of these documents o 2 privilege log, you have an obligat n. ethical 3 obligation, to turnithem over to turn them 4 over now, and to make no ose documents 5 unless and until yo a ourt order that says 6 otherwise. You ell us where did you get 7 them, when you. et them, how did you get them, 8 to who a distributed them? And those are 9 ques ionsi at we still don't have answered.
• :s 10 1,I4,10"What we get from the other side is, "Well, 11 they could have come from here, they could have come from there, maybe they came from someplace else, we don't know." And if they don't know where they came from and that source is clearly a proper 15 source, they have the burden in overcoming this 16 privilege assertion to prove a waiver if they 17 contend any waiver existed.
18 It wasn't with regard to Conrad Scherer
10 11 12 4 And then they contacted us back again and 5 said, "We're trying to OCR all of these documents 6 hat they are searchable, and we can't do that with the watermark on them. Can you please provide us with another copy without a watermark?" And we did that; again, trusting these officers of the court to abide by their agreement. And we have every reason to believe that Conrad Scherer did. They were not the source.
13 14 The obvious source, based now upon what we have been able to piece together, is very clearly
2018-3-8 Hearing Transcript - Afternoon Session 19 because when those documents were turned over to
20 Conrad Scherer -- and we have the letters that 21 confirm the written agreement with every detail of 22 that agreement in place -- those were turned over 23 as part of a common interest privilege with an 24 express representation it was attorneys' eyes only, 25 with an express representation they wV turned
> PALM BEACH REPORTING SE INC. 561-471-2
1 over to no one. 2 to Conrad Sche Tlith c y were originally turned over they got turned over 3 with a confidentiality watermark on every document.
19
15 IIIIII White's improper retention of this material 16 after they had been expressly ordered by the 17 federal court not to retain any of it.
18 Now, every representation I have made to the 19 Court, everything that is included on this timeline 20 can be established through documents that pinpoint 21 the dates and the identity of the individuals 22 involved and the character of every disclosure that 23 was made and every disclosure that was withheld. 24 It has taken a substantial effort to put all of . 25 this together again. We have been working on this
> PALM BEACH REPORTING SERVICES, INC. 561-471-2995 •
1 .many, many hours. But the subject of 2 appropriate sanctions is a subject for another day 0 except to this extent: We need to know who has +8 material. We need to know if there's some intent access, who has had access to this confidential 6 7 8 to call a witness who may have been given access to this confidential material. We need to know all of the lawyers involved.
9 And Mr. Cassell is going to address from the
20
2018-3-8 Hearing Transcript - Afternoon Session 10 perspective of the clients the concern that they
11 have about being informed as to how their 12 confidences have been breached. So with your 13 Honor's permission, I would like him to have an 14 opportunity to address the Court briefly on that 15 topic.
16 THE COURT: What I'd like to do, 7khough, is 17 allow defense counsel to be able to speak to the 18 threshold Binger analysis dealing with the late 19 disclosure, because if Mr. Scarola is right and 20 that is that these exhibits were listed for the 21 first time in March, which would have been three 22 days ago, apd discussed perhaps within the last few 23 weeks, ttlep we would have essentially a Binger 24 issue to analyze. So Miss Rockenbach, go ahead and 25 proceed in that respect, please.
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MS. ROCKENBACH: Thank you, your Honor. I am 2 certain that this courtroom is a place where we are 3 searching for truth and not hiding evidence, 4 whether it is evidence that causes conclusion by 5 this Court that there is no case to be tried. And
6 for the first time after four days of -- and we use 7 that word --
8 SCAROLA: Excuse me. I'm sorry. If this 9 is one of the privileged e-mails, and I assume it 10 probably is, your Honor has entered an order 11 sealing these documents, and the press is present. 12 It is being displayed prominently i violation of 13 ethical obligations to relinquish .p ssession of 14 these documents.
15 16 in open court, why 17 18 document, makin THE COURT: All r illSt. y lieu of publication y u just hand me the hat counsel also has the copy or is referenced with the correct Bates stamp.
19 20 21 MS. ROCKENBACH: This is the stamp e-mail 04408; an e-mail from to Cassell, October 17, 2009.
22 THE COURT: Okay. Is this an extra copy?
MR. SCAROLA: Do we have an extra copy; please? There are literally thousands of e-mails 25 we're dealing with.
> PALM BEACH REPORTING SERVICES, INC. • 561-471-2995
1 MR. LINK: It's in the appendix that we've 2 provided you.
3 THE COURT: I'm familiar with it from reading 4 the materials myself and I could probably put my 5 hands on it.
6 MR. LINK: It's in the appendix, yoq nor 7 Appendix 1.
( .4.4)
8 MR. VITALE: 'MEM C
. II TERRY: 04408.
,1 10 MS. ROCKENBACH: Th 'S1at Thank you.
11 THE COURT: An t, too. I can get my 12 hands on it pre I think.
13 MR. C L: four Honor, if I could just be 14 heard j dtsbr fly.
15 COURT: Go ahead and introduce yourself to 16 ur new court reporter.
17 MR. CASSELL: Paul Cassell on behalf of three 44(S v victims, LM, EW and Jane Doe.
0 We'd like the record to be clear that we're '4 243 joining in the objection to any public disclosure 21 or reference to these documents.
22 THE COURT: Well, reference and public 23 disclosure are two different things, Mr. Cassell.
24 MR. CASSELL: I'm sorry. Any disclosure of
2018-3-8 Hearing Transcript - Afternoon Session 25 the contents or the substance of these documents.
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23
6 7 • 8 my hands on -- THE COURT: All right. Thank you for that clarification. So let me go ahead and try and put
1 THE COURT: Outside of the Court's reviet49
2 Are you objecting to my review?
3 MR. CASSELL: No. We're not w 4 privileges, but we don't want there\`o_bie any 5 public reference to the contents.
9 MS. ROCKENBACH: Your Honor, I can give you 10 the copy that Terry noted was 04408. I don't need 11 it.
12. E COURT: Okay, that's fine.
13 ^ MS. ROCKENBACH: The purpose of me putting this particular piece of evidence, which I've been asked on multiple occasions by Mr. Scarola to 16 destroy by the barrage of e-mails over the past 17 four days, I'm handing it to the Court as evidence 18 of no Binger surprise. It can't be Binger surprise 19 by Mr. if he is authoring an e-mail with 20 regard to this very action that's pending before
21 this Court about five to six weeks before 22 Mr. Epstein sued him. So that can't be a surprise 23 to Mr. Edwards. It actually makes this case 24 incredibly stronger for the issue of probable 25 cause.
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1 But more importantl onor, it's about 2 the truth. It's abo tt uth and the fact that 3 over the past \ PALM BEACH REPORTING SERVICES, INC. 561-471-2995:
> > 27
1 These e-mails, your Honor, go to the very 2 heart of this malicious prosecution case and Page 31
3 whether it can proceed.
4 But returning to Mr. Chinaris, he had three 5 opinions after reviewing the relevant documents, 6 speaking to both Mr. Link and myself, based on he 7 escalating accusations over the course of 8 days. And his three opinions are refl 9 paragraphs 29, 30 and 31.
10 Mr. Link and Miss Rockenb• h h acted in an 11 ethically proper manner. 12 two, the documents in were not 13 14 Mr. Link and M one. Number inadvertently prov\* nor wrongfully obtained by 4Stoc venbach
15 16 17 18 19 MR. is golcg i rega the ethical propriety of opposing el's conduct, I object to this affidavit as hearsay and I want to be able to cross-examine any i. ethics expert who is of the opinion that retaining \$ it privileged documents known to be privileged listed 22 on a privilege log when there is no knowledge as to 23 the source of those documents and a court order 24 exists saying you're not allowed to have them, I 25 want to cross-examine that expert. Excuse me. Your Honor, if this rn into an evidentiary hearing with
4 conduct the proceedings in a way that 5 1. THE COURT: Well, the objection is sustained 2 in the sense that I really do want to, as I indicated earlier, continue to as best as an S known integrity of not only the attprney~s ere e 6 before us but also the historyRll has been 7 pervasive in the 15th Jud i cuit. So I don't 8 want this to dissolv ethical discussion as 9 to whether or committed some type of 10 ethical vio on. hat's really not my focus 11 today. t t focus is better suited for others 12 perh a#76 different time and even perhaps in a 13 1 fferent forum.
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14 :'414I Really what has to be attempted to be divined today is some type of representation by counsel for Mr. Epstein as to what the source of these 17 documents were.
18 MS. ROCKENBACH: Yes, your Honor.
19 THE COURT: Why were they preserved, how were 20 they preserved, for what reason were they 21 preserved, did that preservation violate or come
2018-3-8 Hearing Transcript - Afternoon Session 22 close to violating an order of the bankruptcy
23 court, has the privilege been waived? And then we 24 get back again to the Binger analysis.
25 I did a quick word search, and the Fifth
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29
1 District provides us with some rec t direction and 2 assistance and talks about e of surprise.
3 And it says, quote, "T o o ng party also 4 earlier attempted o lu e the surprise testimony
5 by an unsucces mo on in limine. Furthermore,
6 prejudice ontext of Binger refers to the
7 surpr ct of the objecting party and is not
8 depe en upon the adverse nature of the
9 mony." So that's where we are also going to be 10 focusing today.
But I don't want to get into a discussion as to present counsel's ethical responsibilities
13 unless we have to as it relates to the origin of
14 how, if counsel is aware, these documents inclusive
15 of the e-mails, and particularly as it relates to
16 the 724 allegedly new exhibits being added formally
17 for the first time on March 5th, just three days
18 ago, and certainly outside of the Court's pretrial 19 order in terms of timeliness, whether they 20 constitute prejudice. So let's try to focus there, 21 if we could.
22 And I understand, just so the record is 23 doing this for a long time both as a tr 24 and as a judge, I understand how fe 25 hurt, I understand how people can to e timbrage at be
> PALM BEACH REPORTING SERVICES, INC. 561 7 =Iips
1 , .certain thi SS.: said.
. I.
2 Th of being an experienced trial 3 judg if nothing else,'.is developing a thick skin. t imes I'll hear people say something and use my name and they don't even know I'm standing there.
30
MR. LINK: That wasn't me, was it, Judge?
THE COURT: No. And I understand that there are going to be instances where people are going to 9 think that I'm the best in the world and the 10 absolute worst in the universe. I've come to that 11 rationale pretty quickly. It took some time, but 12 it was fairly quickly. But I do understand. I
2018-3-8 Hearing Transcript - Afternoon Session 13 don't want anyone to think that I'm not
14 compassionate to the extent that I recognize that
15 there have been accusations hurled here which may
16 be minimally considered offensive and accusatory.
17 But let's move beyond that for now and let's get to
18 some of the issues that I discussed earlier that we
19 can focus on relating to decisions that I'll have
20 to make concerning the potential atibility of
21 this evidence.
22 MS. ROCKENBACH: The p your Honor. I
23 appreciate that.
24
25
AsAStsit, And we N 5 .. shed the chain of custody
I I through the ida t of Tina from our
AORINvoir
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office. So it is clear we did not improperly obtain them, nor were they inadvertently disclosed to us.
THE COURT: Tina is your paralegal?
5 MS. ROCKENBACH: Who obtained the three boxes, 6 the three boxes from which contained 7 that CD which is at issue.
8 THE COURT: I think the disconnect we're
31
9having here today is not so much the fact that 10Miss received the boxes or somebody got 11 notice that the boxes were there
12MS. ROCKENBACH: It was an issue.
13THE COURT: -- and that somebody did wh . , 14did. And there may have been an issue 15 16Those are things that can be dealt later on. 17And again, it may be adiffer fprum than 18 even dealing with here to voluntarily turning I'm
19But what I'd k to know is how • 20 got the docume 21 or not th onl do we to know that, whether ntation was obtained or retained 22in amann 11at either was in violation of Judge 23 24 Ray's order or walked acertain tightrope that '1 could be construed as aconstructive violation of that order. And if we know that, then it would go
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1a long way in me trying to make adetermination as 2 it relates to Binger and its progeny.
3 MS. ROCKENBACH: Thank you.
24 always been a general category, as Mr. Scarola
2018-3-8 Hearing Transcript - Afternoon Session
4THE COURT: So that's really where we need to 5 focus.
6 Ihave no problem and I don't think
7 Mr. Scarola has any problem in terms of the fact
8 that you all did your homework; albeit, fromikik
9position, late in the game, and secured t era
10 information from The c
11question, though, is why did Fowle Whi ehave
12these documents, why were th tinued to be
13held, and was it in viol her expressly or
14constructively as i to Judge Ray's order?
15MS. ROCKENX ank you, your Honor.
16Mr. Link ha ucbid this issue and will address
17 that.
18K: So, Judge, let me see if I can
19 acouple of things.
r fY C 20First, these exhibits that we're talking about
\I was not going to allow general catchall types of exhiftidentification, I required that each and exhibit be specifically listed. And we've gone through myriad exhibits in our quest to determine whether or not, for example, the Fifth Amendment privilege is going to be recognized and other issues having to do with admissibility. And that was generally followed, to my recollection, because I dealt with many specifically identifiable exhibits. So yes, I agree that that was something that the Court had a specific interest in and has
24always taken the position that all cards are going 25to be on the table in atimely fashion so that,
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1 number one, first and 2 are on the table, the 3may come to fruition, foremost once a ards law favors s the ent, and it and ha often than not 4resulted in an amicable to a case. And eadequately prepared as importantly, bot 6 so that, as I 7 one is undu 8 before 7urp S1H. 814Csed by rnear the nthis Pollard case, no something that comes beginning of trial.
Ahliftc
Ac10;" 34
9MR. I1UK: Yes, sir. 10at. So that is why we did
11The second thing Iwant to point out to the \15THE COURT: Well, if you're not complaining 16 about it --
17MR. LINK: The reason I want to explain is 18because in our pretrial stip I'm of the mindset
2018-3-8 Hearing Transcript - Afternoon Session when we reach agreement, we have an agreement. And in our agreement, your court order says no additional exhibits unless the parties agree. In the pretrial stip Mr. Scarola and I agreed we reserved our right to add additional exhibits. o in compliance with the pretrial stip and t Courts' order requiring us to identify 've
10 THE COURT: That metaphor, I'm not sure I understand clear as mud.
11 12 13 14 MR. LINK: It's not clear. That's the point. It's not clear, frankly. So it is not as simple and clear as Mr. Scarola says. And I want to show you why.
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been doing that,•s . !.%
THE COURT
AR: Awe- are not in violation of the Cour dot Mr. Scarola and I again agreed to
So let's talk about because it is as clear as mud. It is not as clear as Mr. Scarola . . says. Here is why. If you look at his --
I can't. We have looked for every piece of communication, correspondence, we've gone through their boxes three times trying to answer th question. We have reached out to lawy 17 18 19 20
MM. 0 They have no memory So we, ( L ) 21 22 like Mr. Scarola --
# 2018-3-8 Hearing Transcript - Afternoon Session
15 I honestly cannot tell you, I can't, where the 16 disk came from that end up in la file.
23 THE COURT: Excuse me 24 actively practicing? . Ackerman still
25 MR. LINK: H .Ss 4 e And we reached out to
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C;
1 e Ackerman. Mr. Ackerman. Sorry. We reached 2 , o.t to Mr. Ackerman.
Here is why it's confusing. And I think this A4P is really important to understand what happened.
When the trustee took over the files, there 6 was an understanding by Mr. and his firm 7 that there would be about 5,000 e-mails, and they 8 agreed to do a -- go through them and do a 9 privilege log. What's missing from Mr. Scarola's
36
10 timeline is that in November 2010 informed 11 the bankruptcy court that the trustee had produced 12 74,000, 74,000 pages of documents on two compact disks. Not one. On two. 13
So then what happened, because of the vol Mr. and his firm goes in and says, dge 14 15 16 17 18 we need more time. We did not know we g to get 74,000 pieces of paper and wE neeJd time to go through them."
19 20 THE COURT: I may ha fPyou. The 74,000 pages were self-gene 1 d 6m the Rothstein firm?
21 22 NO ASs., MR. LINK. A delivered to Mr. Edwa by the trustee
23 24 25 i • .! TH And Mr. , you're sugg indicated that they need more time to iew the e-mails or whatever documents --
7 V
PALM BEACH REPORTING SERVICES, INC. 561-471-2995
MR. LINK: Correct.
2 THE COURT: -- they may have encompassed, and 3 to raise objections; and that forum was the 4 bankruptcy court.
5 MR. LINK: All this started in the bankruptcy
37
6 court.
7 So when Mr. Scarola says there was one disk 8 produced by the trustee with 27,000 e-mails on it, 9 that's not true. There are two disks and theres 10 74,000 e-mails. That's what Mr. 11 represented to the Court. I haven't seen these 12 disks, but that's what Mr. represented.
13 So what happens after tha s there is a 14 complicated negotiation be 15 firm and Mr. a, e of the Jaffe 16 firm, about how, ar going to take these 17 documents, whi e of 18 stamped, n y wanted a hard copy to review so 19 they ou n e a privilege log, but they didn't 20 want p,pay for it. The trustee didn't want to pay 21 stamped, not
22 Mr. Epstein volunteered with the special
-- actually, -- but
Mr. Epstein's counsel volunteered that they would 25 use their machine to print out, print out from the
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15 12 They print t QuE Hard copy documents. 13 One to the tee, one to •• 14 magistr magitaylets two disks: one with 25,000 images 16 "j .t p.. and one with -- I can't tell you how many 17 images because the special look at it." Jaffe. The a copy, and so you will see the says, "I didn't
# 2018-3-8 Hearing Transcript - Afternoon Session
disk that had no stamps on them, documents, 2 and Mr. MR agreed to that.
3 So they print the documents out -- long before 4 our time, Judge -- they print the documents out, a 5 set is given back to the trustee, and a set is 6 given tont Jaffe. The machine that s 7 according to the magistrate and all 8 communications, doesn't retain any ag So we 9 10 start with two disks. To IliViore complicated, there was three. One had em. But let's go 11 with two disks and 7 ages.
20 I think -- this is Scott Link guessing -- I want to be clear about this -- I think the disk 21 that ends up at was the special 22 disk. And here is why I think that: A, 23 it was in a file that said Special 24 none of which makes sense to me until we put this
16 THE COURT: And that disk, I presume, that you're alluding to did have numbers on them. I'm talking about the individual documents.
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1 says to him, "You, special a, review se 2 documents." Just like he said here, h t ten The tr il s' cold. 3 times, "We have nothing to hide. Ce i e what 4 should be turned over." 5 can't find a letter or c on from the 6 special that sa ooked. Here they 7 are." But I know e disk that was sent to 8 NM= t4ppy Xad no IIIII stamp.
9 When at the judge's order from Judge 10 Ray carola pointed out, it says IIIIII Whit t print a hard copy of all the documents 12 fined on the disk with numbers added. 11 13 That's how they were going to do it.
17 MR. LINK: Yes, sir. They're all 18 stamped. So they were not the disks 19 provided -- again, I can't say they're not. I'm 20 not testifying. This is Scott Link's forensic
21 review.
22THE COURT: But again, Mr. Link,
23respectfully -- and I appreciate you're trying to 24put together and piece together something that 25transpired seven years ago -- the problem sti
4
PALM BEACH REPORTING SERVICES, 561-471-2995 ,
1 remains the same. eclsn't really
2 matter to this Court f at it was, who
3 formatted it orciirty t was supposed to be
4 intended. sur, here may be cases even after
5this Woi4ey SJe that we'll be talking about.
6tomo length at the bar conference, but that
40
7use stands for the proposition globally of the
84e4c attorney/client privilege to something so
sanctity in that particular case of the
rudimentary as whether or not an attorney referred
aclient to a given doctor for treatment. And the
12Supreme Court has clearly stated that information
13is privileged and will not be divulged.
14MR. LINK: Yes, sir. I was just trying to
15answer your question about the disk.
16THE COURT: Okay. So the point that I'm
trying to make is when I'm saying it really doesn't matter, all of those other details, what matters to the Court is, again, Judge Ray's order relative to the sanctity of those documents, for lack of better term, the protection of those docu sa all costs, and that shal h the threat of sanctions retain any of IC )documents.
24It says here, "Should i etenmined that 25or Epstein" t only does it go
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1 .2 3ds to Mr. Epstein's legal representatives, from this Court's interpretation. to F . rh e but it goes to Epstein -- and cons tively, if not explicitly, by this order
MR. LINK: Yes, sir.
THE COURT: "Should it be determined that
or Epstein retained images or copies of the subject documents on its computer or otherwise, the Court retains jurisdiction to award sanctions in favor of, Brad or his client," end quote.
'Somme
41
MR. LINK: And I agree with that. The bankruptcy court reserved that. What I'm suggesting to the Court is I don't think it's as clear as Mr. Scarola said. And he may go to Judge Ray and Judge Ray will have a hearing. Base what we've looked at, I don't believe i ' clear that that's what they did because i ble, based upon what I've read --
20 THE COURT: That = 1/il1 kt) did?
21 MR. LINK: Yes.
X/41-Sir 22 THE COURT: 23that -- so that I'm understanding correctly -- Sq are you suggesting to me
24 25 MR. LINK: Yes, sir. I'm not here representing Fowler
3 4 5 6 THE COURT: I understand. But you're here representing Mr. Epstein, who by virtue of this order that is being highlighted in part on the ELMO, that did what it was supposed to do pursuant to that order, returned everything that it was supposed to return, but through some
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2018-3-8 Hearing Transcript - Afternoon Session happenstance had the disk containing the very
information that was the source of Judge Ray's order and somehow, therefore, should be exonerated by virtue of the fact that because we really don't know how may have gotten it, bu assuming did what it should do e, miraculously this disk turns up in Fo e's files and hence we should essentia y ignore the dictates of the order?
MR. LINK: No, sir. the Court. Let me g''' S 7you understand what's on this disk. sink I've confused
The 27 pa son this disk, we've only looked 0 of them, okay? Of those 5,000, I will represent to you -- and you can look at t-- (S )e attached -- were communications between an 4 v Idon't believe any -- and I know none that attorney and a client.
Iasked Mr. Cassell and I asked Mr. Scarola to
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identify by number if there are any attorney/client communications and we would
3 segregate them. The response I got, every page is 4 an attorney/client communication. So that's one.
5 THE COURT: But that's not what this order 6 says, Mr. Link. The order doesn't say anything about privileged documents.
MR. LINK: Judge, I understand tha
THE COURT: The order says that- hite will not retain any copies of the d uments contained on the disk prov .jt nor shall any images or copies of sai is be retained in the memory of Fowl s copies. And we already went t h fie sanctions. 9 10 11 12 13 14
15 16 discoC don't know as we sit here that the 17 18 22 23 24 MR. But we don't know -- here is the disk we located there wasn't handed to them by Special Carney after Mr. Scarola gave him the job and said look at it and give them whatever you think is okay because the majority of the documents we've looked at have to deal with scheduling and sporting events and going out drinking and all kinds of things. It is not a group of documents that are on the privilege log.
25 Here is the second thing we learned --
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THE COURT: And is that going to serve as the conduit to attempt to admit these documents into evidence in the face of the order that I have just read?
MR. LINK: Your Honor, I see Mt,rder. What I'm trying to get across -- Q ing a lousy job.
THE COURT: No, you'
MR. LINK: can't tell you.
THE COURT: r to get to the point that I'm really --
MR L . I don't think that we can conclude toda this disk is aresult of their violating is order. This disk could have been as a result the special looking at it and saying, "I 'ae37(118":2 don't see communications between attorney/client, I based on giving it to Razorback, issue injection, believe there's been awaiver of the work product all of these issues have been raised."
THE COURT: So now you're suggesting that former Judge Carney, to my knowledge avery well - respected jurist who presided in the Circuit Court
13 14 15 When these issues came up, we asked to please give us the original boxes. We got the original boxes and found the disk in a folder that says J. Carney printing on it. That's it. That's all that's on this folder.
16 17 There's no watermarks, there's no confidentiality agreement, there's no stamps on the
2018-3-8 Hearing Transcript - Afternoon Session 22 in Broward County, to my knowledge, and has done
23 senior work here in the 15th Judicial Circuit 24 somehow engaged in some type of ex parte 25 communications with
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1 MR. LINK: Judge, I can't becalke -Lie looked. 2 I have searched. I'm not saying that at all. All 3 I can piece together is that Mr. Scarola asked 4 Special Carney to do that.
5 This disk, when we got -- we put a sticker on 6 it. We wgn looked at boxes and put stickers 7 on things the disk said Epstein stamp. Had 8 no idea what was on it. Looked like something we 9 d put a sticker on. It came in, the disk, and 0 we started looking at it.
documents. They are stamped and there's a disk in there. So what I'm suggesting is if we're trying to figure out whether violated the order, I don't think it's as clear as Mr. Scarola says.
Now, I wasn't there. I can't tel they did, Judge. But I do know th 5. of the documents that are on this disk an t are on
> CS ) PALM BEACH REPORTING SERVICES, INC. 56;'471=2995
their privi ( Slo -S/ have been used in this litigat n have been used. They have prod ced e. They're exhibits that Mr. • IKLsked Xijilege log. There's over a hundred of them. about and answered that are on this
A; O So this disk is not adisk of their privileged documents. It's a disk of 27,500 documents. And what's the most important part of this is Judge never held an in-camera. Nobody judicially has looked at these. And that's where we need to be.
I don't think any of this matters. What
13 matters is we have the records, they're relevant, 14 this Court should determine they're relevant, see 15 if there's a privilege and see if that privilege 16 has been waived. That should be the process.
17 THE COURT: On Thursday afternoon, which i 18 going to be taken up by additional argumen her 19 Friday I'm a committed member to the B, as 20 is encouraged not only by the 15th iclya Circuit 21 and Fourth District Court of p but also by our 22 local Bar Association, of y of you are 23 prominent members he know that commitment 24 must be taken s and I do take it 25 seriously, ti the riday I'm booked up with
> ALM1 ACH REPORTING SERVICES, INC. 561-471-2995
5 MR. LINK: Yes, sir.
6 7 8 THE COURT: That's a big endeavor. That is an endeavor that is beyond this Court's ability physically and from a time perspective. So I'm not
47
hearings on other matters of the 14- to 15 hundred files that I'm carrying in this division, of which this is but one, with the trial to commence on the morning of Tuesday, the 13th of March.
9 going to do that.
10 11 12 :Milli. They don't want to. MR. LINK: Your Honor, I know that you don't have the time. I have offered them aspecial
13 THE COURT: It's just too late.
14MR. LINK: But Judge, the truth i 15 late. too
16 THE COURT: Please don't inter pece.
17 MR. LINK: I apologize for that.
18 19 20 21 THE COURT: Protocol dictates the orderly administration of justice and, correspondingly, the orderly preparation for trial. That preparation - and you'll'be surprised when it comes to larger • 22cases like this -- not only applies to counsel and 23their team of attorneys that the respective side 24Ire, but it also applies to the singular ?S e 25individual who is responsible for this orderly
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1 presentation.
2I often refer to a case that I printed 3directly from the Fourth District Court of Appeal,
4 R3 Tobacco Company versus Calloway, and it
5 talks about the trial judge's ultimate responsibility. There it was to ensure appropriate 7 attorney behavior, but it talks also about court 8 exercising its control of the litigation of the, 9 trial, of important pretrial hearings like re 10 having here today, and talks about th 11 , especially true in lengthy high-sta es.c ses and 12 goes on to speak about what a T should and 13 should not tolerate when to interruptions 14 and other matters th necessarily befit the 15 presentation of dIIWi# excellent counsel.
16 But wh wa rying to communicate while we 17 were sp k er each other is that this is the 18 very courts have spoken to the issue of 19 4lely and reasonableness and preparation.
20 I can't speak to the . , matter in which this case has been prepared by counsel for Mr. Epstein over the last 3,000 and some odd days. I can, however, 23 speak to what is before me now. Why someone before 24 you and Miss Rockenbach got involved in this 25 case -- because I saw Mr. Ackerman's name in this
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1 matter in the four years that I've been presiding 2 over this case -- I saw his involvement, I saw what 3 he attempted to do. His timing was critical -- 4 whether his work was or wasn't is not for 5 say, but certainly his time in which h elf i 6 representing Mr. Epstein would hay itical 7 .to any successor counsel's invo veal in this 8 case.
9 10 decision-making thk here in the civil circuit 11 courtroom I had 12 significa at of experience in a relatively 13 quic t f time. It was baptism by fire, I 14 thin would call it. But I had opportunities 15 t into the courtroom long before others did 16 w o had the same experience level. Whether that was good or bad, the results speak for themselves. But I did have that opportunity. And to learn a 19 great deal, not so much from those who I work with, 20 but even more those who I work against, so to 21 speak; my opposing counsel. The wealth of 22 knowledge that I gained from how they did their Thankfully, for es of most of the experience, and I gained a 23 work was astounding and something that I cherish
24even to this day. But what it taught me more than 25anything was that preparation is critical, whether
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1.' the case is a \$10,000 .whiplash case or 2a \$10 million class action suit. s
And the very essence of being brought to my attention today, wests are made for 5 6 commencemen aspecial to review thousan cuments several days before the in-camera inspection adime that's essentially two to three busRe d s prior to the of trial for the first time, despite alcitrance from, their -- somebody 1 reviewing their files apparently for the first time mere weeks before the case is going to court, those types of things have to be held -- I was going to say in high regard, but what was meant by. what I'm saying is preparation in getting to these materials, there was nothing that I knew of despite again what appears to be brief recalcitrance on the part of to turn over the materials
2018-3-8 Hearing Transcript - Afternoon Session 19themselves, this could have been done six months
20 21 22 23 24 ago, a year ago, two years ago, three years ago, four years ago, five years ago, six years ago, and it should have been done then. To bring these types of matters before the Court at this particular time is, in my view, inappropri . It v
25 Now, if this was newly-discovere ce
3. 2 3 4 5 6 10 11 12 13 14 that was not in UN: C(ds of Mr. Epstein's lawyers since 2009, whenever this all came to fruition, then I wo 'd have to take adifferent approath. BjIt the very nature of the documents l that we're talking about -- again, rightly or ly held -- were in fact held by INS Epstein's counsel, at an incredible crucial time in this process; and that being in and around 2010, when the Rothstein firm imploded, when these e-mails were apparently confiscated, when somebody made the decision that instead of paying for the copy costs, they be handed over to . And if I have abit of an incredulous tone to that statement, it's probably purposeful.
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15 But the fact remains, Mr. Link, that these 16 materials were in the hands of Epstein's attorneys 17 from the inception of the issue itself. And to now 18 come to the Court with not five pages of documents 19 to look at, but 27,000, or whatever that number 20 is -- it escapes me because of its shear mass -- is 21 impossible and is not going to be countenanced 22 here.
23 And I understand what you're going to tell me 24 because I've gotten a flavor for some of these 25 documents that have been provided.
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1 MR. LINK: Yes, sir.
X s 2 THE COURT: And that is that they are y ..detrimental to the position taken by Mr. and that they are helpful to the position taken by Mr. Epstein.
6 The issue, though, is one of whether the 7 protocol and the orderly administration of justice 8 is going to be forsaken notwithstanding also the 9 aspect of privilege and the sanctity of privileged
2018-3-8 Hearing Transcript - Afternoon Session 10 communications, whether all of those considerations
11 12 13 14 one, am not going to sacrifice protocol over h t 15 may or may not be, number one, privilege' d i 16 not privileged, certainly late disclo 17 documentation of a massive nature. are going to be thrown out when balanced against material that has been in the hands of Mr. Epstein's lawyers from day one. And I, for
18 Should the amount of d ation be a 19 determinative factor in s analysis in this 20 context, based upon 3'':Nrs of compound 21 experience, bench and bar, and a little bit more 22 now than half on the bench, I do not believe that 23 24 25 the orderly administration countenanced and should be disruptive. of justice should be disruptive. Should be
2 3 4 5 And what I meant by that, should the destruction of the orderly administration of justice be countenanced? And the answer to that question, in my respectful view, is no. Because if I do it once, then I'm setting a precedent, even
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though I know trial courts traditionally don't do that, according to case law. And forgive me for my choice of words, but as someone who is asenior member now of the bench -- not asenior judge, but message to my colleagues that I'm not d believe is the appropriate thing. asenior member of the bench -- that sends a4'.,
MR. LINK: May I respond, ur udr?
THE COURT: Sure.
MR. LINK: First I'want to apologize. I did not mean to interrupt the Court when you were speaking.
THE COURT: Not at all. Go ahead.
. LINK: Second, we're not talking about 27, ges, we're talking about 49 exhibits. e are only 49 exhibits that we are asking the Court to look at. So that it is not 27,000 pages.
Third, I think most importantly I absolutely agree your Honor has a difficult, difficult weighing decision to make between staying on course
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and what I think is more important than any of
this, which is getting to the truth. And I believe
in my heart, your Honor, the reason I'm so
passionate about this and the reason I apologize
for interrupting you is if this courtroom is
looking for the truth, then those 49 docu sh ye
got to come into court. They have go i
front of the jury.
C.) THE COURT: But they'r oming in here,
and I would hope elsewhe 's going to be at
the sacrifice not oC s the orderly
administration jiftt e, but also in derogation
of afedera nkr tcy court's order or any court
of reco i risdiction's order that would have
the eces ysupervisionary control of agiven
se, but also at the potential extermination or
ecsv erogation of a privilege. And for all of those
taking these things into consideration just a few
reasons is why I am extremely reluctant to start
days prior to trial.
Again, if this was something that came into
play that was being hidden by the other side, and
I'm talking now generically, and your side
discovered that information at the 11th hour, this
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55 .1 that's one of the things I want to emphasize 2 this record. But that's not the case. 3 As I mentioned• and this is time 4 5 possession of Mr. Epstein fro inception of I'll say it -- these documents have een in the 6 this case as we know i didn't move. And 7 the problems that ent in this analysis, of 8 which this Cou does not have the time to • 9 address ppj thial, are all of those reasons • 10 that st described to you: The disruption derly administration of justice, the sanct nature of the privilege, and of even .• more importance is what I said I wouldn't repeat; and that is, that at all times material to the 16 17 the abject untimeliness of the request for the 18 Court now to take these matters into consideration, 19 where they are well beyond when exhibits that were 20 known or should have been known were not listed. analysis, from the inception Epstein lawyers had this material. And, obviously, the timeliness, or
21 22 23 MR. LINK: Your Honor, may I have one more shot, please? I know you have been very patient with me.
24 25 THE COURT: If it's going to be any differ nt than what you've told me. If it's going to
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1same, we've already esta e and it's amatter 2 of record, and I ruling accordingly.
3MR. LINK; 4i s, siW. I understand that. I'll 4 be very qui
5Yo 'about whether there was any hiding 6of t ese uments. And one thing Iwant the Court 7 IIIIV see is this: These are -- Mr. Scarola didn't 8want me to put that up on the screen, so I'll hand ec it to you.
° If you look at the privilege log which they filed, which Judge IIII found inadequate -- and I don't believe there was another privilege log filed, so I don't think there's aprivilege log -- but that's another day, another issue -- but if you look at the privilege log and the e-mails that it
16 relates to, tell me if a lawyer looking at that 17 18 19 20 21 would be able to tell the real content of the e-mails that Mr. was writing. Because I think you have an obligation to disclose in a way that allows a lawyer to make a determination of) Ahm, whether it's privileged or not.
22 23 24 25 i THE COURT: Mr. Link, you're maki S p nt for me. Mr. Ackerman, h se c materials ever since day one. n't know how much more I can make this k' r.
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1 ,the analysis would be completely 2 diff t if it was shown to me that somehow, some he Searcy, .Denney firm, Mr. 7 8 9 trying to drive home and emphasize. Is not only 10 the issue of timeliness, not only the issue of the 11 privilege has not been tested, but first and, Jaffe -- I was going to say Ron Rothstein, but I don't want to get him confused with the wellrespected coach and former coach of the Heat -- Scott Rothstein was sitting on this stuff. That's not what happened here. That's the point that I'm
57
12foremost is the fact that tig Epstein's 13own lawyers, have been sitting on this from day one 14for seven, eight years.
15MR. LINK: But we don't know -- the point 16trying to make, I don't know that they loo 17 it.
18THE COURT: That's not my probltM.
19 20 said, "Don't look." MR. LINK: Maybe Carney gave if them and
21 THE COURT: That's not my problem. If
22Mr. Epstein has a case against his attorneys, he 23 can deal with those claims to his satisfaction.
24 25 I'm not here.to determine whether or not someone did or did not commit malpractice.
3 4 5 6 THE COURT: I'm here only to deal with this issue that is before me; and that is, whether a wholesale late disclosure of significant exhibits that have been in the possession of Epstein's attorneys, from day one and, thus, as a
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MR. LINK: I understand that, Judge.
58
2018-3-8 Hearing Transcript - Afternoon Session 7 matter of continuum in Epstein's possession, his
8 possession is constructive to the possession of the 9 attorneys that 10 attorneys that 11 2010, and that 12 13 understood is beyond me, as not onl ya a represented him, that string of have been representing him since Alk if nobody got around to looking la documents -- and how that c be 14 attorney but also now a seasoned juke until you 15 and Miss Rockenbach took it u on rselves and 16 your paralegal to do it ie t to problem. And 17 that's all I'll say h. ilbject.
18 19 20 21 22 23 I have mad g. It is a several- • pronged rulings An for the reasons that I've stated reason why I am not going to enga me type of a last-minute evaluation of uments that could have been evaluated from 2010 Va 1I\* theway to March of 2018.
But nobody ever took it upon themselves to even look at those documents in
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1 file. How that could be the case, who knows? But 2 I'm not finding fault with anything you or
3 Miss Rockenbach or Miss MIEdid. That's not 4 the issue. You've done your job.
5 MR. LINK: I understand. Your Honor, may I 6 have one minute to confer with appellate counsel to 7 make sure there's nothing I need to do to presefte 8 this?
9 THE COURT: Absolutely. 10 brief recess. Let's 'just take a
11 (Thereupon, a short r e s taken.)
13 THE COURT: ht. Thank you again. \\ 14 Please have a e . elcome back.
12
15 MR. Your Honor, I want to hopefully 16 tie ypNa oose ends on the matter that has just 17 been on.
18 Am I correct in understanding that the 9 defendant is prohibited from making any use of the 724 late-disclosed exhibits?
THE COURT: Yes.
22 MR. SCAROLA: Next, sir, we would request the 23 defendant be required to relinquish possession of 24 all copies of the privileged documents to the Court 25 under seal. They have expressed some concern
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1 stating that we have asked them to destroy them. 2 We want them turned over to the Court under seat 3 They should no longer have possession of t41:4 , 4 until such time as somebody rules that a e 5 entitled to have possession.
6 And I want to make one b t omment about 7 that, if I could can.
8 Your Honor know v r 11 that IME 9 is a very large .that keeps meticulous time 10 records with regar 11 12 o the services render. And the concept that it is reco struct through those time records 13 74.ved, when it was received, when it was reviewed, what happened with it, who was informed that they impossible to what was of what was happening with it quite frankly is absolutely inconceivable to me; that a law firm of 17 that size, keeping records the way it did, cannot 18 reconstruct what went on with regard to this 19 information.
20 THE COURT: And that's a good point. What I 21 was going to point out earlier and I failed to do
2018-3-8 Hearing Transcript - Afternoon Session 22 that, and I appreciate the reminder, is that I
23 would have expected certainly in deference to the 24 fact that Mr. Epstein was a client of Fall. 25 that someone from Mwould have had the
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1 ability to weigh in somehow as to tlies4critical 2 issues.
3 4 5 6 7 8 9 10 13 14 having served Perhaps I'm being a bit naive when I say that capacity as counsel, it's an obligat expl reco Mr. .Epstein in their espectful belief that they owed r. Epstein, if not this Court, to d why they had access and kept these their possession in light of that court and in light of this ongoing litigation. And as a matter of respect to Mr. Epstein and his ongoing legal team, to have made some type of affirmative steps to have dealt with this issue head on because of the apparent implications of same.
15 So I again want to make clear that I'm finding 16 absolutely no fault with Mr. Link, Miss Rockenbach, 17 Miss or anyone else from the Link and Page 72
63.
18 19 20 21 22 Rockenbach firm in terms of what they did, albeit in the manner in which they had to do it and the timing, unfortunately, of the matter from their perspective in having to do it, but that takes nothing away from what the Court has already 23remarked upon concerning the fact that Fowler 24in the representation of Mr. pd €t n,ifad 25these records from the inception is of the
# 2018-3-8 Hearing Transcript - Afternoon Session
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1 reasons for < Co. s;ruling.
2 MR.J Your Honor, may we include in 3the direction that opposing counsel is 4 uired to relinquish possession of all copies of 7t e 4Iirprivileged documents to the Court under seal?
62
THE COURT: Well, the only thing that obviously.has to be taken into consideration is the appellate rights of Mr. Epstein and how they're 9going to preserve those rights in light of the fact 10that the Court has rejected the last minute request 11for in-camera inspection for the reasons that I've 12already stated at length on the record.
13MR. SCAROLA: Which is why I've suggested that
14 15 16 17reasonable and necessary to examine those 18documents, the appellate court will have 19opportunity to do that. they be relinquished to the Court under seal, your Honor. They can be given an exhibit number. To the extent that the appellate court finds it
20THE COURT: So you're suggest tp file with 21 22 the Clerk of Court under sea issue? documents at
23 MR. SCAROLA: that's correct.
24 A: b THE COURT etter stated.
25 Do you elS/ objection?
5 multiple occasions that backup in the preparation
6 for this case was being provided by the Gunster law
7 firm, and we would like acertification from them
8 as well that no copies have been retained.
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MS. ROCKENBACH: No objection, your Honor.
THE COURT: So stipulated.
MR. SCAROLA: Your Honor will recall that
opposing counsel has also informed the Court on
MR. LINK: They don't have any, Judge.
THE COURT: Okay. That's fine. If Mr. Link and Miss Rockenbach are representing that to the Court, I'm satisfied with that representation.
MR. SCAROLA: And I accept that represen as well, your Honor, but what we would believe we are entitled to is alis persons to whom the privileged documents ha en disseminated. And I'm par concerned in, . this regard; that the tetilhpny of any witness might be influence bflheir improper exposure to privileged docS s. YSo we ask that a complete list of a 7 persons to whom those documents have been d35 mated or the contents of the documents that disseminated be provided to us.
And I know that Mr. Cassell has some concerns in that regard as well that he would like to
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address with the Court. So if he may have an opportunity to speak to the Court in this regard --
THE COURT: That's fine.
4Mr. Link, if you want to comment on that?
5MR. LINK: Yeah. I think I can solve that 6problem very easily, your Honor.
The documents were within my law firm, and my client. That's it. They haven't been shown o any third parties. There's not athird-party nes for me to put on the stand. And you Zed we can't use them. We won't use them
12MR. SCAROLA: Does that ;R o de Mr. Epstein?
13THE COURT: Does wh c Ile Mr. Epstein?
MR. SCAROLA; stein been provided with copies of these privi uments? ants or the contents of
17MR L just said my client. My law firm 18and t. And I can say legal counsel, 19 ll . Goldberger. So that's it.
20 MR. SCAROLA: That may require some further relief that we can address at another time.
4? we believe that sanctionable conduct has occurred, And so that the record is clear, your Honor, 24and we are reserving the right at alater time -- 25but it's not something that needs to be addressed
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2 now -- but we're reserving the right to address the issue of appropriate sanctions at a later time.
3 THE.COURT: Thank you.
4 Mr. Cassell?
5 6 MR. CASSELL: Thank you, your Honor 1 Cassell, and I'm here this afternoo 7 understand it's getting late in the ay, I'll be 8 very brief, representing t ims; LM, EW and • .9 Jane Doe. Just one houit irig matter.
We have filed unopposed. ion to intervene, which is
12 THE he only thing I need is an order. 13 Every hi e was provided but the proposed • 14 orde if it's unopposed, then phrase it as 15 :1A'and I'll be glad to execute it.
6 MR. CASSELL: Thank you, your Honor.
Just so the record is clear, on July 19, 2010, seven and a half years ago, LM said these very 19 documents are privileged, and on February 23, 2011,
20 EW and Jane Doe through counsel said these 21 documents are privileged. So the Epstein entity 22 that is Mr. Epstein and his array of lawyers were 23 on notice at that time that every one of these 45
24 documents was privileged.
25 And then what happened on Friday night, March
1 2 3 4 5 6 7 8 9 10 11 2nd, was that Mr. Link put into the t file summaries of the e-mails, quo ng rom them directly, and we believe tha improper. indeed, we've heard today4) k represent Court all we wanted course they wan Sr ing more. They wanted to put those i e p. lic knew th e t would be out of the bag, publ city uld ensue, and other damage to my ients -camera review, court file because they could occur. And so I'm here this And to the but of afternoon to raise what I think are time of the privileged materials by Mr. Epstein. When I use the term "Mr. Epstein," I'll be referring to this essence concerns about the release of those 14 15 entity.
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4 /14 6
16 Let's be clear. There is no doubt from sworn 17 testimony in front of the Court that on January 10, 18 2018 agents of this law firm picked up a disk from
19 the law firm, and the law 20firm, as you know from the ELMO, had been directed 21some six or seven years earlier not to retain any 22 23 copies of these documents. So there should be no dispute about the circumstances right now.
2018-3-8 Transcript - Afternoon Session
24At that time Mr. Link's law firm, Mr. Epstein, 25were in possession of documents that F
1. 2 court order. 3 documents 4 5 accuri:::141 was in possession at were in violation of a iS6 ca la has used the term "stolen hink that, frankly, describes nature of the documents, although who ief was, of course, remains to be • mined.
10 11 12 13 14 So the question in front of you right now is what to do about this. Well, we know one thing. We know there's been absolutely no waiver of attorney/client privilege. How do we know that? Well, your Honor knows the Florida law very well. To be awaiver of attorney/client privilege is something that is disfavored. There has to be a clear, intentional waiver of the privilege. And
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15 16 17 18 19 20 how do we know there's not been aclear, intentional waiver of the privilege? Just use Mr. Link's word. Things are clear as mud. Well, if something is clear as mud, there cannot be a intentional waiver. So there's no waiver o attorney/client privilege.
21 I know the hour is late.
22 23 24 THE COURT: You don't have to 1) rushed. I want to make sure that you>re d and that your clients are heard.
25 MR. CASSELL: k you, your Honor. We
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1 1 is I that because what we've heard shockingly 2t 7i44r safternoon is -- let me -- I know we need to be do( (5 1%Se careful with language let's just say an accused abuser, Mr. Epstein, the man accused of abusing my 5 three clients, we are told has seen these very I 6privileged documents. We're told Mr. Goldberger 7has seen them. We're told, of course, Mr. Link and 8his law firm has seen them. And of course this 9very large law firm, the law firm, has
2018-3-8 Hearing Transcript - Afternoon Session 10 seen them as well. And so the question is what do
11 we do?
12. 13 And we're mindful in the fact you're about to embark on what's likely to be a very time-consuming 14 trial. So I would like to impose six remedies t1Rat 15 we would ask you to execute today; none of h, 16 want to emphasize, will require consume the 17 Court's time other than signing the prop sed order 18 that we will provide for you.
19 The first is -- Mr. as already asked 20 for this and I belie ed this, but I want 21 the record to be .A hi y clients are asking that 22 you preclud y usY of the privileged exhibits 23 either direct indirectly or derivatively during 24 the upcoming trial because if someone relies on 25 this information, for example, in asking a question
(c
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to Mr. or asking a question to any of the 2 witnesses that Mr. is presenting, that 3 could implicitly reveal privileged information.
4 THE COURT: We have all done this, so don't 5 feel like you're alone. Are you talking about Mr.
6 Epstein?
7 MR. CASSELL: I'm sorry. If Mr. Epstein's 8 attorneys do that, that's the concern.
9 So, for example, if they're formulating an 10 questions to Mr. , they shouldn't be to A 11 use any privileged information because ' 12 worried that that could implicitly 13 privileged communications.
14 Secondly, we would li in counsel -- and 15 that's a broad term th i -- I've probably 16 17 18 19 law firm, ant them all to canvass their 20 records canvass their e-mails, canvass their 21 22 lost track of the i Alc. ilic re law firms, but Mr. Link's law ( Am, tli e law firm, I believe t several others, Mr. Goldberger's ow and tell us if they -- how did this happen? ow did this happen?
THE COURT: You're talking about how did the firm garner these records?
MR. CASSELL: Correct.
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21 14 MR : That would be our request. But 4 r . 15 they be a broad -- you phrased it fishing 16 rption. eSv 17 expedition -- to retrieve what's happened here. But at the minimum we would ask your Honor then to 20 We would phrase it a retrieval direct Epstein attorneys who were previously before this Court, Fowler, to examine the circumstances here.
2018-3-8 Hearing Transcript - Afternoon Session
1 . THE COURT: Well, I'm not sure that any of 2 their servers are going to shed light on that.
3 MR. CASSELL: Well, it may be, for example --
4 THE COURT: I don't want to go on a fishing 5 expedition, as you can appreciate. I don't wa to 6 exacerbate the problem; meaning, I don't w o 7 unnecessarily delve into myriad e-mail to 8. gain knowledge that is likely resid ng a the 9 =1firm in some fore o ashion, whether 10 it be current or former or otherwise. So 11 I am not going to go extent at this 12 juncture without proof or basic proof for 13 going in th
22 23 24 You noted that you thought there might have been an obligation for them to address the Court head on. I'm here telling you that the victims
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1 address the victims head on. How did this
2 3 4 5 6 7 THE COURT: And understandable. confining the obligation of i those entities that I mentioned. It M as ( hhole entities that came to the Court's dally. I don't want this record to s s asn't taking into account the concer s the victims.
8 9 10 11 12 13 tcv MR. CASSE Ce tainly, your Honor, I wasn't suggestin d this, of course, is my first oppor-Unn ) you have always referred to building a re -- this is my opportunity to build a d as well. So we want to know how these materials were obtained.
The third thing we want to know is who were the materials distributed to? Mr. Scarola has made 16 that request II behalf of his clients. I'm making 17 that request on behalf of my clients.
18 We're told that Mr. Goldberger has seen it,
19 we're told Mr. Epstein has seen it. We want to 20 know who else has seen it. And this, frankly, may
21 require looking at e-mails, looking at servers and 22 that sort of thing.
23 I think the record should be clear that in a 24 routine case, you might say, "Well, that's going, to 25 be too expensive." Your Honor is aware this
S e
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"e1 72 1 a routine case because I understand that two of the 2 finest and largest law firms here in,Florida are 3 4 5 accompl h rches that would be involved to 6 see e materials got anywhere. currently repres ihg .Mr. Epstein, so they certainly h the S/ 1esources to search -- to 4i:meea
7 The fourth thing is we want an order directing . Epstein not to reveal the contents of this information to anyone. We are told that • Mr. Epstein has seen the information, so he should be singled out specifically for an order.
12 13 14 Fifth -- I think this has already been recovered. All copies of the documents are to be turned over under seal to the Court.
15 Sixth, we want our temporary sealing order,
2018-3-8 Hearing Transcript - Afternoon Session 16 which we will provide later today, to be converted
17 into a permanent sealing order. Mr. Link filed in
18 the public court file, we believe highly
19 improperly, information that he was on notice was
20 privileged. And he said today he wanted an
21 in-camera review. Well, you do not get an
22 in-camera review when you put those very documents,
23 or at least summaries of those verleiments, into
24 the public court file.
25 We want the Friday ing, the notice of
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"S ale' 1 reda t ials, to be placed under permanent 2 seal.
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3 And then the last request is just a
housekeeping request. We're obviously scrambling
to sort out the implications of all this. I'm sure
I have missed some points that need to be made.
Due to the late filing of this document, due to the
8 public filing of the document improperly, we would
9 like leave to be able to file a supplemental
10 application for additional remedies after the trial
11 concludes and after we have received information
12 about how the documents were obtained and who they 13 went to.
14 And so those are the requests that I make on 15 behalf of my two clients.
16 THE COURT: All right.
17 Mr. Link?
18 MR. LINK: Yes, sir. Thank yoCip
19 THE COURT: Thank you.
20 21 clear about where we go th tuments from. We 22 got them from Fowlet e, your Honor. I don't 23 think that's a 4b terll"anymore. MR. LINK: I'm not su can be more
24 25 I've represented to the Court who I have shared-the papers with. The Court has ruled that
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we're going to take the disks that we have and put it under seal. We'll destroy all the other copies.
3 That's what Mr. Scarola asked for and that's what 4 we said we would do.
5 As to the filing, I never said all I wanted 6 was an in-camera inspection. What I said was
7 Mr. Scarola said he would like one and I said
8 great, let's have one.
9 Most important is this: The documents that we
10 filed -- and there was some miscommunication with
11 Mr. Cassell -- I want to make sure the record
12 clear -- we did two things: We filed re
13 documents. We redacted all of the na 4441:: , LM
14 and Jane Doe, as this Court has in truc ed. So
15 their initials were wiped ou . Cassell called
16 me and said, "I'm lookin cument and I see
17 their initials." looking at is we
18 served the coun d and delivered to the
19 Court -- di t p it in the public file -- the
20 unredac do nts so we would all know what was
21 in t
22 THE COURT: By the court, you mean
MR. LINK: To you. To the judge.
THE COURT: -- to myself.
MR. LINK: Yes, sir.
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1 THE COURT: Not as far as the court file is
2 concerned.
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3MR. LINK: ;The court file only contains the 4redacted version. We have double checked that. I 5asked Mr. Cassell to tell me if I missed a 6redaction. Could it happen? Yes, it could happen. 7We haven't found one. If there was one that 8 9 10 redacted, we'd be glad to redact it. B only thing that was filed in the clerk f redacted version.
11 Thank you, Judge.
12 THE COURT: All ri ank you.
13' Much of which - rmuch of the relief that 14has been reque ha essentially been taken care 15of I bell v firough the Court's prior order; that 16is, that ne disk containing the documents that 17are being sought to be introduced at trial to take 18cord will be permitted to be filed under seal. 19The sanitized redacted versions of those records 22 23 also ordering to be sealed in an abundance of caution just in case there may be some error, not intentional, on the part of counsel who filed those records.
24 25 Mr. Epstein will be barred from referring to any of those records as it relates to the documents
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1 that were 2 other source 3 that were the 4 5 6 gathered from Inallor from any that would have included those 0 c rds eitc;: . subject of Judge Ray's ord ' o tilin it's to preclude anything coming in t ug e back door which wouldn't be allowe'ompugh the front.
7 Mr. Link, did you wa.3o, mment on this?
8 9 10 11 MR. LINK: Yes. 1 ed to remind the Court we have over aIll4 v s S el that disk t I are lready in the court file. We've u d thq imein depositions. So I'm hibits that were listed on 12 wondIrina those aren't excluded.
13THE COURT: Right. I'm not talking about 147t ose. 44v I'm talking about the ones that have been e lS v derived from and that have been sought "a C1. 3/7 whatever this number is, or the 45 that have been to be introduced as part of the 748 or 724, or 18claimed as privileged and have not been ruled upon 19and will not be ruled upon prior to trial because 20of the reasons that I have explained in detail 21 earlier.
22 MR. LINK: Thank you, Judge.
23 THE COURT: Mr. Cassell, did i leave out
24 anything else?
25 MR. CASSELL: Yes. We want to know how the
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1 • 2 documents, and then we want where they 3 went. Epstein entities came into possessi .d the
4 THE COURT: B a of the court ruling, I 5 don't find that be front burner issue at this 6 time. P1 a t confuse anyone here. The 7 ce to front burner as opposed to 8 bein ssue of importance. Front burner simply 9 that in preparation for a trial that is actually a mere two to three business days away, if you count tomorrow, which I don't really count as a court business day because of my obligations to the 13 Bench Bar Conference, I won't have the opportunity 14 to really delve into that prior to trial.
O 77
15 And as Mr. Scarola pointed out, I believe, 16 earlier, that can be done at another time. So I am 17 certainly not going to forget that it needs to be
18 done. But it will be ordered that it be done post 19 trial.
20 Any other remedies that are sought as you go 21 along -- I understand the relative late nature of 22 these revelations; hence, you are not precluded 23 from filing a supplemental motion.
24 I also note that you have requested attorney's 25 fees and costs related to this endeavor, and I'm
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reserving o ?at SisSI9well.
2 MR L: But related to that is the 3 dist . The cat is now wandering out of the 4 ago so time is of the essence.
78
5 THE COURT: Right. And again, I think that in ec + b an abundance of caution, and I understand your concerns, but what the attorneys here recognize - and Mr. Epstein is also under this order -- is that 9 no further dissemination is going to be made. 10 think that goes without saying as far as the 11 attorneys are concerned. I've known each of them 12 seated at counsel table for many years, as I have
2018-3-8 Hearing Transcript - Afternoon Session 13 known Mr. Scarola and Miss Terry, Mr. Burlington,
14 and I think they recognize that when this Court 15 makes a statement, that it is abundantly clear that 16 it will be enforced to the letter. I have no doubt 17 in my mind that they will all be respectful of the 18 court order of non-dissemination of any of those 19 documents hence forth.
20 And Mr. Link has already represented to the 21 Court that other than Mr. Eps in and his 22 co-counsel, that there ha e no eyes laid upon 23 these documents. Herlef, iifaccepting that 24 25 representation, :ihse X s o arola has accepted those representati du g the hearing as well.
4147me
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\\ZIP' MR. CASSELL: We haven't heard, of course, from Will, the Court direct them to make similar representations?
THE COURT: I believe that I have sufficient 5 authority to do that under these relatively 6 peculiar circumstances. My jurisdiction, though, 7 is somewhat limited because they have withdrawn 8 from the case.
79
9 As a general blanket order I would simply say 10 that all attorneys who have or are representing Mr. 11 Epstein shall be subject to this order of 12 confidentiality, of sealing and of non-13 dissemination of any such information that i 14 contemplated in any of the documents th- part 15 of the umbrella order of Judge Ray.(-A•A at would 16 include all of the exhibits that wi4poce about 17 today and that have been f' as a matter of 18 record.
et\\ 19 MR. CASSELL: Couid t ey also be directed to 20 make a representation as to who they have 21 distributed the documents to?
22 THE COURT: Mr. Link has already -- are you 23 talkiQg about IIIIII
24 R. CASSELL:
25 CY THE COURT: I don't think that I have that
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1 ability.
2 3 then? I believe that you do have -- all right. MR. CASSELL: Could I be heard on that issue
80
2018-3-8 Hearing Transcript - Afternoon Session 4 We'll deal with that later then, your Honor.
5 MR. LINK: Can I make a suggestion, your 6 Honor, that might be helpful?
7 THE COURT: Sure.
8 MR. LINK: We now have, I think, 34 or 36 9 boxes they delivered; I believe all the bo he 10 have. The disk, the original disk, we • it. 11 I don't know for sure, but I doubt hat ere's 12 another disk that they made aid kopt. If the Court 13 will instruct as part of..aif.gr€r that we 14 maintain the boxes, 15 them back, then 'IS"v ake possession of the 16 boxes. owler MB wanted
17 If you are telling me that you 18 utho ty from Mr. Epstein to retain those 19 tpQZes and Mr. Epstein is essentially giving you Ac 20 carte blanche, you and Miss Rockenbach and Mr. Goldberger jointly, the authority to make any 1. decisions necessary to protect his interests, that 23 motion would be granted.
24 MR. LINK: I'm standing here with this puzzled 25 look because I'm not sure what that means, frankly.
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1 All I was trying to do is say I will preserve the 2 documents, the original files, because I don't 3 think there's another set of files somewhere. 4 In had asked me to return them on 5 went through them, and if the Court ca uct me 6 to hold the boxes, then I will do .
7 THE COURT: I don't have ro ledwith making 8 that instruction, so I'll jat that. You're 9 speaking on behalf of r nt, Mr. Epstein, as 10 well as your own w rm, and Mr. Goldberger, I 11 take it, as so have no problem making -- in 12 entering oder since you're current counsel 13 for ~l tin
14 INK: Thank you, Judge. I think that 15 make custody easier.
16 MR. SCAROLA: Your Honor, there are two additional matters that I would hope can be disposed of in advance of the start of trial.
19 THE COURT: Sure.
20 MR. SCAROLA: One is Mr. Epstein's motion to 21 strike Dr. Jansen, and the second is issues with 22 regard to adverse inference. I think that both of 23 those matters have been fully briefed.
24 Mr. Burlington is here to present argument in 25 response to the motion regarding Dr. Jansen.
> PALM BEACH REPORTING SERVICES, INC. 561-471-2995 .
1 I suggest -- your Honor has told 2 finishing at 4:30 today -- that 'we 3 minutes, seveniand a half min er side, to each 4 of those matters.
5 THE COURT: All '1\$Ss Off the record. 6 (Discussion Sise the record.)
7 MR. LI Yo Honor, we have a motion to 8 strike e 9 hibits that they disclosed late 9 afte he off. I think if we're going to do a 10 se and a gander, the Court should rule those 11 7 e hibits are stricken.
THE COURT: Well, I have to -- I want to review that motion again since my concentration has 14 been on the sequencing that I mentioned before. 15 I'll be glad to deal with it prior to trial.
16 MR. LINK: I'm comfortable with your Honor 17 ruling on the papers if Mr. Scarola is.
18 THE COURT: Well, I'd rather, since it's
endeavor, but I think it's.better to have you heard in number, I'd rather have argument on the subject, to be perfectly with you. I appreciate your willingness to entrust the Court with that 23 on the record.
2018-3-8 Hearing Transcript - Afternoon Session 19something of the magnitude of trial exhibits and 79
25All right. Mr. Burlington, whic d you
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2MR. BURLI our Honor, it's his motion.
3MR. SCAROLA: The motion to strike Dr. Jansen.
4- THE' COURT: All right.
MR, BURLINGTON: Unless you want me to argue sides, your Honor.
\\YY10 MR. LINK: Which one are we on?
11 MS. TERRY: Jansen.
12 MR. LINK: Jansen. Okay.
13 14 Good afternoon, your Honor. See if I can start over today.
from MR. SCAROLA: Adverse interest, your Honor, the assertion of the Fifth Amendment.
THE COURT: What's the other motion?
15 THE COURT: You have done fine.
16 MR. LINK: I don't remember winning one yet, 17 so maybe this one. I have hopes.
18 Your Honor, this is our motion to strike 19 Dr. Jansen. And I know the Court has read the 20 paper, so I'm going to be very brief about this.
21 We have struggled since coming his 22 Court in December with what this ca because I 23 keep saying to the Court th 9dwards wants to 24 try a defamation action s to clear his 25 name, he wants def a h- ype damages, and the
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1 urt keeps rebuking me properly and saying, no, ec 2 t is is a malicious prosecution action. We're not going to try a defamation action.
0 Their expert that they want to put on the 14÷ 5 stand for damages has no opinion, your Honor, as to 6 damages. Not one. He can't talk about any damage 7 suffered by Mr. , if any. His sole opinion 8 is that he was given defamatory statements by 9 counsel, defamatory statements, and told to do a
2018-3-8 Hearing Transcript - Afternoon Session 10 search to see how many times the defamatory
11 statements hit a web page or how many people 12 touched the web page with the defamatory statement 13 on it.
14 15 16 17 18 19 20 it make any differe 21 of Mr. a feci not do business with him, 22 did they fir i.r So, for example, there's a newspaper article that says Rothstein and MS and tha a azine or that newspaper has 3,000 people th t the newspaper. He says there are 3,0011C. tell you if one of the 3,000 e read the article, what they thoug the article, did He can't hey change their view
23 He a ;gelthas no economic damages, so how 24 doe a jury to hear about nine million web 25 -hits when you can't point to a single person -- I
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said, "Tell me one person, one person, Or. Jansen, 2 that you know read one of these articles." He
3 said, "I can't. I have no idea."
4 The other thing that was important is he said, 5 "I just use an average of data. I can't tell you
25 22 The suggestion that he cannot give opinions on damages ignores the nature of the damages for which case law is clear, which includes reputational damages, shame and humiliation. They have
# 2018-3-8 Hearing Transcript - Afternoon Session
6 exactly because they accumulated over months." He 7 can't even tell us how many times this article was 8 actually touched. All he can tell you is if I go 9 to the Palm Beach Shiny Sheet website, on an 10 average month 3,000 people look at it. So h 11 that help the jury from a damages expert mine 12 whether the filing of this maliciou ec ion 13 action caused Mr. S any damag
14 Thank you, Judge.
15 THE COURT: All ri nk you.
Mr. Burlingtoi 16
MR. BURLY 'm Phil Burlington, here on 17 18 behalf of wards.
19 20 ques rmination comes down to four First, is the expert qualified? That's 21 being challenged.
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1 acknowledged shame and humiliation as an element of 2 damage. We've citied on page 6 of our response 3 five Florida cases. Two of them, Florida Supreme 4 Court cases, make it very clear reputational 5 6 damages are a valid element of a malicious prosecution case.
7 So how do you monetize -- how do 8 monetize the damage that has been uffe ed by my 9 client? We've citied cases, here are cases we 10 rely on from outside the u tion, but it's 11 clear from the many ases we cite this all 12 arises from the nXaw, and malicious 13 prosecution des ibed many times as an ancient 14 cause o a t ,, so it's 15 comm'lap So reliance on foreign jurisdictions 16 17 k s not h Florida law. all developed by the unusual, especially when it's consistent
But the clearest discussion is in a case called Browning, which says that in reputational 14. 43 damages, which are particularly hard to prove, and 21 there's no case that I've ever read where in a 22 malicious prosecution case a plaintiff was put to 23 the burden of bringing in an individual who said, 24 "I didn't send my case to this lawyer because I
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1 would require,. of course, months of trial to 2 people in. But that's not our burden.
3 THE COURT: Right.. And we're 'Looking at a 4 defamation case from the standpoint ublication, 5 where publication is reallyi, it. So that's not what is being terms of the 7 expert testimony, nderstand it.
8 MR. BURLI : tell, we're seeking to prove 9 the dissemiltttiopr as we would in a defamation 10 case.
11 ,COURT: Well, dissemination and recognized 12 tknowledged publications are two different 13 things is what I'm trying to say. I'm essentially agreeing with you, I think, in the sense that there's no need to prove publication.
16 When I say "publication," I'm talking about 17 the consumption of that information by another 18 party and that party's -- and the effect on that 19 listener, or the effect on the person who agreed 20 with that material. You're speaking only to the
21 issue of dissemination.
22 MR. BURLINGTON: The Browning case says that 23 the two primary factors in determining reputational 24 damages are the gravity of the false allegations -- 25 and here we have a young, talented trial lawyer Who
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1 is being accused not onl o 71fous crimes, but 2 heinous crimes invol rmining the judicial 3 system. And th and factor noted in 4 Browning, a t' ited in other cases, is the 5 degree p ,ure of the false allegations.
6 And e cited multiple cases in my brief that 7 ay. that when courts have evaluated the 8 essiveness of a malicious prosecution award, one 44Se of the critical considerations is the degree of exposure of the false allegations. And this is how we are doing it in the Internet age. 11
12 If we were 30, 40 years ago and this was done 13 and let's say it was only exposed in this area of 14 the country, Palm Beach County, Broward, Miami, we 15 would come in with the newspaper's circulation to
2018-3-8 Hearing Transcript - Afternoon Session 16 give the jury some idea of the exposure. That
17 doesn't really have much probative value in the 18 Internet age. 'I •
19 And Dr. Jansen is undisputedly qualified, 20 probably more than anybody, to do this, and he 21 explained how conservative his analysis wa d 22 he's not going to tell the jury that t 23 million six hundred hits means that million 24 six hundred 25 V thousand people r is story and now S ' believed that Brad Edward S iminal, and so
8 9 10 11 trial will be all about. 2 And one of the factors here is a very well-3 ized principle of.the Bigelow case, which is a U.S. Supreme Court case, that says that one of the fundamental principles of justice is that if a defendant engages in wrongful conduct that creates uncertainty as to damages, that falls on them. You can't put the plaintiff to what is an essentially impossible burden, assuming we prove our cause of action. And that, of course, is an issue that this
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1 forth and !so on.
12 But they're trying to say really you can never 13 prove reputational damages without bringing in Joe 14 Six Pack off the street and inquiring of him how 15 much of a grudge he's holding against Brad 16 17 because of false allegations. That is simply. not the standard. A';,
18 19 20 21 Is it helpful to the jury? W ; I, ie jury is not going to understand the com le 14.14) of dissemination of information e Internet, and this witness is specifich pbalified to do that.
22 23 24 So when we go\\ gh the analysis is he qualified, is iss e relevant, is it helpful to the jury, vatjsfy those three.
25 Then we come to reasons to exclude. And the
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only reason I saw raised in their motion for • excluding it was vague references to confusion. 3 And I don't see how there could be confusion, given 4 the clear parameters of what Dr. Jansen testified 5 to were his directions, his methodology. There was 6 terminology that he has to explain to the jury, but
90
2018-3-8 Hearing Transcript - Afternoon Session 7 all experts do that in complex situations. The
8 jury here would not be capable of making an 9 analysis of the degree of dissemination on the 10 Internet as a matter of their common sense.
11 THE COURT: I didn't read the motion as 12 suggesting a prior Daubert analysis being required.
MR. BURLINGTON: I'm sorry? 13
THE COURT: I didn't read the c, oo filed by 14 15 Mr. Link to talk about his se a Frye or 16 Daubert analysis.
17 MR. BURLINGTON: That's my reading 18 as well, your Ho
19 Now, th wa a little preamble, as there has 20 been on iRotions'here, about how this is all 21 abou a.d motion action, and we've cited in our 22 sponse the term "defamation" is a general term in /. • .. • I 23 t e English language, and we've cited Miriam ec i Webster, which is about as IIIII bread as you can 0 get on a definition.
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1 The fact that that term is used not only in 2 describing certain parts of the task that was Page 107
3 assigned to Dr. Jansen or in our argument regarding 4 the nature of the damages, it's because that term 5 properly applies to false statements of fact that 6 accuse a person of criminal conduct, of being 7 insane, being untrustworthy and so forth. 8 not in any way a suggestion that we are 9 defamation action.
10 The reputational damages 11 recognized by the Florida Court. They have 12 been recognized as one o intangible damages 13 for which a jury h b given broad discretion. 14 On the other h t have to be given 15 parameters. n this context, the two primary 16 ones ak r utational damages are the gravity of 17 the allegations and the degree of exposure. 18 hat is exactly what this expert is qualified 19 ^ to testify about. And there's been no suggestion as to what confusion there would be. And so, therefore, we believe we have satisfied the 22 standard, and it's your discretion regarding the 23 admission of his testimony. are Ly
24 And to strike a witness entirely is the most 25 extreme remedy that could be sought in this
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1 context, and we submit it is not appropriate and 2 the motion should be denied.
3 THE COURT: All right,, thank you.
4 Mr. Link, you have a few minutes u .
5 MR. LINK: Very briefly, Judge
6 I think a little bit of the confusion on the 7 damages is there's really fSndards. The 8 standard for damages cious prosecution 9 based on lack of,DraYable cause in a criminal 10 action has p se images. They're assumed, 11 12 because o ody makes an allegations that you are cr al in the criminal court and they have u arrested, then your reputation and your IP\* c aracter are immediately impugned.
This is civil. In civil it requires damages proximately caused. And it's not a Frye analysis, 17 it's not a Daubert analysis, it's a basic does this 18 help the jury and is it a 403 issue, which is if I 19 get on the stand and I say there were nine million 20 hits when in fact all he did was search for 21 defamatory terms given to him by counsel without
2018-3-8 Hearing Transcript - Afternoon Session 22 taking into consideration was it Mr. I who
23 spoke to the press, did he do a press release, when 24 did these when were the -- when did the 25 dissemination take place, did anybody read them,
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1 did it make any difference?
2 One of the things Mr. rd has told us is 3 he has no economic dam s 7 s law firm has made 4 substantially mor, r himself personally, 5 since Mr. Epst sue him than from before.
6 So t the jury nine million hits sounds 7 like on1 lion people are reading this. I 8 beli at prejudice outweighs any, any value it 9 t have, any relevance in this action, because 10 he needs to show damages proximately caused and not just put someone on the stand to talk about hits.
Thank you, Judge.
13 THE COURT: Okay. I was writing as we were 14 speaking and certainly was anticipating 15 Mr. Burlington to state the well-known legal action 16 that a request to strike a witness is a drastic and 17 extreme measure reserved only in rare
18 circumstances, especially where here we're dealing 19 with an expert which is otherwise qualified to 20 testify to what he's going to testify. And there 21 being no Daubert or Frye analysis necessary, the 22 Court would deny the motion.
23 I would point out that many of the that 24 were raised by Mr. Link both in his tion 25 and orally certainly can be effecti dealt with
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1 on cross-exa ati S . But the core aspect of the 2 Court's n oday is that reputational damages 3 and or humiliation are difficult to 4 ilemonstrate to a jury, and the manner in which the S plaintiff chooses to go about presenting that testimony, in this Court's view, is reasonable in 4? that motion is respectfully denied. part to Dr. Jansen's proposed testimony. So again,
94
9 The next issue.
10 MR. LINK: Judge, I think that's 0 for 5.
11 THE COURT: I don't keep score. Never have 12 and never will. I know you say it in gest, and I
2018-3-8 Hearing Transcript - Afternoon Session 13 allowed it the last time without a mention, but
14 repeating it is inappropriate.
15 16 MR. LINK: Judge, I'm sorry. It was not meant to be inappropriate.
17 MR. SCAROLA: Your Honor, the next issue '\\ 18 before the Court relates to the plaintiff 19 entitlement to an adverse inference i 20 arising out of each of those circu stan es where 21 Jeffrey Epstein has asserted ifth Amendment 22 right to remain silent. ary objection to 23 the entitlement to a tion really related to 24 the content of t s ction.
' 25 And I e h ed your Honor the adverse
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i ference instruction based on Fifth Amendment assertions that we are requesting of the Court, which I suggest to your Honor is in direct conformity with the United States Supreme Court's 5 opinion in Baxter versus Palmigiano and also 6 conforms with the clarification in the case of 7 Coquina Investments versus Rothstein. 8 Interestingly, a matter related to the Ponzi
9 scheme.
10 And those two cases together stand for the . • • 11 basic principle that you may not base civil 12 liability solely upon the assertion of a 13 Amendment privilege. But if a defendant conf 14 with evidence against him in the context • civil 15 case refuses to answer questions th levant 16 and material to that civil case, th • awing an 17 adverse inference based upo Fifth Amendment • 19 That's exactly wha 4( 1;i!i Ci struction e 18 assertion is not requir permitted. says.
20 Your Honor'\\weDi aware of the broad array of 21 22 23 questions Mr. Epstein has refused to provide, and it is of particular significance that those refusals occurred in the ext of efforts to obtain discovery on the claim at Mr. Epstein himself asserted.
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1 He filed a lawsuit intending not to provide 2 any discovery with respect to the claims that he 3 made and, carrying through on that intention,
#### 2018-3-8 Hearing Transcript - Afternoon Session 4 refusing to provide any discovery on those claims
5 that he made. Under those circumstances, an 6 adverse inference instruction is particularly 7 appropriate.
8 I might also point out to the Court that, ere 10 y e e. Separ prt from 11 Amendment concerns, if someone is onf nted with 13 this case not only a rig 14 speak up in response accusations and they 15 fail to say an at accounts to an admission 16 by silence.el Aps is a basic principle of law relating to a : io b sil nc ate and a a i^jc r, accusations under circumstan ere t obligation to they have in
9 12
17 So base on those two very fundamental 18 principles, 'the U.S. Supreme Court recognition, the 19 ifthlmendment protections do not apply in the 20 dc ntext of civil litigation based upon the basic principle of admissions against silence, admission of a party opponent by silence.
23 We ask the Court approve this proposed 24 instruction and permit us to comment upon 25 Mr. Epstein's assertion of the Fifth Amendment 1 2 3 privilege in the context of this civil litigation in each context in which those assertions were . made.
4 5 6 9 10 11 So it relates to his assertion of the F Amendment privilege with regard to the e s of the claim that he brought against Br Ei ards, it relates to his assertion of Fift ndment privilege with regard to al ons relating to his economic circumstan s, t elates to his assertion of the F dment privilege in every context in whig4e h asserted that privilege.
12 Thank
13 : Thank you.
14 .15 carola, the reference to Florida standard nstruction 301.11, am I going to find this there?
MR. SCAROLA: What you're going to find there, your Honor, is a spoliation instruction. And what 19 we've done is we have adopted the spoliation 20 instruction, which is the closest standard in 21 jury -- closest standard jury instruction to these 22 circumstances. That'is not an adverse inference 23 instruction based upon Fifth Amendment. No such
24 standard jury instruction exists.
25 THE COURT: Well, I didn't think so. And
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1 thank you for that clarification.
2 I'm surprised that there real ah n t more 3 cases that deal with this instPl ion in a civil 4 context. And no Florida at you're aware of?
6 MR. SCAROL • q na is a Florida case, your 7 Honor.
8 TH •• Well, it's a Federal District 9 Cour cas not a Florida appellate court case, ie hick would be binding on this Court.
11 All right. Counsel for Mr. Epstein?
MR. GOLDBERGER: Now I get to stand.
Good afternoon. Jack Goldberger on behalf of 14 Mr. Epstein.
15 Your Honor, as a general statement of the law, 16 Mr. Scarola is correct.
17 THE COURT: Let me tell you where I have some 18 issues, Mr. Goldberger, with this. And Mr. Scarola
2018-3-8 Hearing Transcript - Afternoon Session 19 can speak to it as well, now that I understand its 20 origination.
21 The first sentence I don't really have a 22 problem with. The second sentence is where I have 23 a problem. It says, quote, However, the protection o 24 that applies in a criminal proceeding does not 25 apply in a civil lawsuit when a person •pon
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A4(%. 1 the Fifth.Amendment, retuses to answer questions 2 when evidence is offered against him which is 3 relevant to the.case, end quote. I don't think 4 that's an accurate' statement of the protection 5 mechanism.
> 6 MR. GOLDBERGER: I bracketed that myself, your Honor, in the instructions Mr. Scarola gave me. And my concern may be a little different than the Court.
10 Whether that's accurate or not, I don't want 11 this jury to be thinking well, the right against 12 self-incrimination applies in a criminal case and, 13 therefore, he's guilty of everything that they're 14 trying to get an adverse inference on. There
T.
#### 2018-3-8 Hearing Transcript - Afternoon Session
15 simply is not a connect there. I don't know why we 16 need to mention anything about a criminal case in 17 this jury instruction other than Mr. Epstein under 18 the United States Constitution cannot be compel ed 19 to provide evidence against himself in a cri 20 proceeding, period.
21 And then, you know, and the guilt j0 crime 22 may not be inferred from the exercise of the Fifth 23 Amendment right to remain silent, that's confusing, 24 your Honor, and it's just going to inject criminal 25 issues into this civil trial, and I think it's just
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2 And 0 then the second sentence, your Honor, + 5 criminal proceeding does not apply in a civil address, However, the protection that applies in a 6 lawsuit when a person, based on the Fifth 7 Amendment, refuses to answer questions. And I know 8 where the Court is heading because that requires a 9 balancing test at this point.
2018-3-8 Hearing Transcript - Afternoon Session 10 JudgellIII, by the way, your Honor, back in
11 November of 2013 addressed this very issue in an 12 order that he entered. And I'll quote from it.
13 This is Order on Counter-plaintiff IIIIIII
14 Motion to Determine Status of Punitive Damage 15 Discovery and Applicability of Adverse Inf ce. 16 And in that order, your Honor, your pr dec s 17 judge, Judge IIII, stated, "The co ter PTai_ntiff,
18 19 20. 21 deferred until t 22 23 24 " -- I'm sorry counter-plaintiff r u for jury instructions adverse 'S e ty: instruction is i's: f trial. And at the time of trial, u spe~4Fic analysis of the specific questio swers, including those propounded in d the Court will determine whether an 25 adverse inference instruction will or will not be
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given."
2 So I think what Judge meant in 2013 is 3 that you can't determine what the instruction is 4 going to be until such time as you hear the 5 question, and then you must first do a 403
6 analysis.
7 8 9 10 11 12 Well, first you must determine whether it's relevant, then you have to do a 403 analysis, then you have to decide whether under that 403 analy is and respecting the sanctity of an invocation he Fifth Amendment privilege, whether an a inference instruction is appropria
13 14 point to have a blanket in n to give to this 15 jury every time -- bas o e ry time Mr. Epstein 16 invokes his Fifth men privilege I do not 17 believe is a c ct atement of the law. And I 18 would ask t urt to follow Judge order, 19 where 'm going to do it on a 20 ques y-question basis. So for Mr. Scarola to simply liiV u at this
21 THE COURT: Well, a couple things. One is, 22 again, presuming, without knowing, what was going through Judge mind at the time, but I would think that the likely contemplation was that by the time this case got to trial, whether it was in
# 2018-3-8 Hearing Transcript - Afternoon Session
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#### 2018-3-8 Hearing Transcript - Afternoon Session 1 2014, '15 and now '18, Mr. Epstein's criminal
2 issues would have been behind him and that there 3 was not at that particular juncture a need to rule 4 on something that was probably potentially, at 5 best, speculative. However, the time is now, soicto 6 speak, because we've gone through in painstaking 7 detail most of those questions that the Court 8 deemed relevant and that Mr. Epstein invoked his 9 Fifth Amendment privilege and fthesefore, the Court 10 would find that an advers tion would be 11 appropriate.
12 The languag find fault with, 13 particularly th econd sentence, will have to 14 be iron e' t 15 to b pal le dealt with in a way that's going to the Court.
16 17 ii?itryou certainly have the right, and it is a m tter of law in the civil context, that if you seek to have an instruction provided to the jury on this issue, it must be filed to preserve error.
Now, of course, if it was -- if it's deemed to 21 be erroneous to give an instruction at all, then 22 that requirement would be obviated. However, if 23 you are seeking an order with the Court's stated 24 intent that one will be given -- because as far as
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1 my rulings relative to the Fifth Amendment ilnk, 2 that I've already reviewed -- I'll be 3 review a proposed instruction that our 4 team prepared.
So at this time -- ag going to give 6 the instruction. An i tr t n The instruction 7 is still up in the amain erms of the wording.
8 I'm comfo le th actually the first 9 sentence, mfortable with the second 10 paragr 's the second sentence in the first 11 para that will need to be changed. 12 ,1 14R. SCAROLA: May I suggest a language change, 13 your Honor, because I think I understand - although your Honor has not articulated the concern, I think in rereading that second sentence, 16 I understand how it could be of concern. The Fifth 17 Amendment --
18 THE COURT: The concern potentially is the 19 blanket statement that protection that applies in a 20 criminal proceeding does not apply in a civil
21 lawsuit.
22 MR. SCAROLA: Yes, sir. I understand that.
23 What I suggest for consideration by the Court and 24 opposing counsel, instead of the instruction 25 reading, "However, the protection that appli
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1 criminal proceeding does t per," it should 2 read, "However, the t n against drawing an 3 adverse inferenc t 'pplies in a criminal 4 proceeding d no pply in a civil lawsuit," 5 et ceter 's the part that does not apply.
6 ou t11 have your Fifth Amendment 7 otection; however, you don't have protection a ainst an adverse inference. That's what I intended to say. It's not said as clearly as it 11 should be, so I suggest that the language read, "However, the prohibition against drawing an 12 adverse inference that applies in a criminal 13 proceeding does not apply in a civil lawsuit," 14 et cetera.
15 MR. GOLDBERGER: Your Honor, I accept what Mr.
16 Scarola is trying to clarify, but I also accept
17 your invitation to come up with our own instruction 18 at this point.
19 MR. SCAROLA: I just want to be sure our 20 proposal is on the table. And that's what it is.
21 THE COURT: However, the prohibition against 22 23 the word "protection" and substitute "prohibition 24 against drawing an adverse ice. drawing an adverse inference -- so we' I eliminate
25 MR. SCAROLA: Yes, I believe is an
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1 absol exact statement of the law.
2 OURT: All right. I certainly can live 3 h that more so than I could letting that sentence stand as it was.
But again, your invitation remains. I'll be ,÷6 glad to take into consideration any proposed 7 instruction that you provide me, Mr. Goldberger, 8 and your team.
9 But again, I'm ruling that adverse instruction 10 is abundantly necessary, without question. And, 11 therefore, one will be given.
12 But again, I will invite you to prepare one 13 for the Court's consideration.
14 MR. GOLDBERGER: Thanks, Judge. That's 15 obviously subject to relevancy. Obviously.
J ", •
16 THE COURT: I'll put on the record for you -So • 17 that there's no equivocation, I understand that 18 your blanket objection is to giving ,an 'adverse 19 instruction at all. That is recognized, and it's 20 overruled.
21 However, as I said a bstitute, my 22 understanding of t t be is it will be 23 necessary now th th Court has ruled, unless you 24 25 simply want to stand on your blanket objection, that an alternative instruction must be given for
3 4 So at this time -- again, I'm going to give the instruction. An instruction. The instruction is still up in the air in terms of the wording.
6 I'm comfortable with actually the first
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the Court to consider so as to preserve further your objection.
2018-3-8 Hearing Transcript - Afternoon Session 7 sentence, I'm comfortable with the second
8 paragraph. It's the second sentence in the first 9 paragraph that will need to be changed.
10 MR. SCAROLA: May I suggest a language change, 11 your Honor, because I think I understand -- 12 although your Honor has not articulated t 13 concern, I think in rereading that se e ence, 14 I understand how it could be of co cern The Fifth 15 Amendment --
16 THE COURT: The con r p8tentially is the 17 blanket statement th t"p t tion that applies in a 18 criminal procee o not apply in a civil 19 lawsuit.
20 MR : Yes, sir. I understand that. 21 Wha I su st for consideration by the Court and 22 o posing counsel, instead of the instruction 23 p, r ding, "However, the protection that applies in a criminal proceeding does not apply," it should read, "However, the prohibition against drawing an
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1 adverse inference that applies in a criminal 2 proceeding does not apply in a civil lawsuit,"
3 .et cetera. That's the part that does not apply.
4 • You still have your Fifth Amendment
5 protection; however, you don't have protection
6 against an adverse inference. That's what I
8 should be, so I suggest that the language r
intended to say. It's not said as clearly asAt
\\il --
9 "However, the prohibition against dr
10 adverse inference that applies in a i 3na1
11 proceeding does not apply ig 1 lawsuit,"
12 et cetera.
13 MR. GOLDBERGE r Flonor, I accept what Mr.
14 Scarola is try arify, but I also accept
15 your invite come up with our own instruction
16 at this point.
17 MR. SCAROLA: I just want to be sure our
18 hr~Dbosal is on the table. And that's what it is.
19 THE COURT: However, the prohibition against
drawing an adverse inference -- so we'll eliminate
• the word "protection" and substitute "prohibition
. . 22 against drawing an adverse inference."
23 MR. SCAROLA: Yes, sir, which I believe is an
24 absolutely exact statement of the law.
25 THE COURT: All right. I certainly can live
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1 with that more so than I could letting that 2 sentence stand as it was.
3 But again, your invitation remains. b 4 glad to take into consideration any p 5 instruction that you provide me, M!. Goy. erger, 6 and your team.
7 But again, I'm ruli tjla dverse instruction 8 is abundantly necess out question. And, 9 therefore, one w e 3ven.
10 But aga I 11 invite you to prepare one 11 for the consideration.
12 OLA: Your Honor, we thank you very 13 uch or your generous allotment of time today. 14 L ok forward to seeing you on Tuesday.
ec THE COURT: It's my pleasure.
453 your written and oral presentations. I appreciate Again, you all have done a superb job in both 18 the excellent argument. As I've mentioned in the 19 past, if I had the pleasure of dealing with 20 attorneys of all of your caliber each and every 21 day, I wouldn't have the headaches that I do
2018-3-8 Hearing Transcript - Afternoon Session 22 physically and figuratively.
23 MR. SCAROLA: Your Honor, for planning 24 purposes, are we going to be conducting an initial 25 screening on Tuesday, having jurors fill out the
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1 questionnaire and then returning fo dire on 2 3 4 5 the underlying circumstances of this case. Wednesday? The initial screening ' would think - • 'would include hardship challenges and also questions with regard to anyone's familiarity with
6 THE COURT: That's something that we're going 7 to hays, discuss, and I guess the best time to do 8 it i Take a little bit more time.
9 10 more minutes? Ic"411;14 adam court reporter, are you okay with a few
- 12 13 14 the venire panels. I'm going to have a hundred. THE COURT: My thinking is that likely it will be necessary to preliminarily individually question
15 MR. SCAROLA: Yes, sir.
16 THE COURT: I know that will be time 17 consuming, but based upon the Dippolito case, and
THE REPORTER: Sure.
18 19 20 21 22 23 24 25 this having some parallels as far as the publicity aspects are concerned and the nature of the allegations and admissions that we're dealing with here, that it's incumbent upon the Court to individually question each of the initial venire members as to their knowledge of the individuals involved in this case. Those are preliminarily. :
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1 MR. S LA: ay I make a suggestion?
2 TH Sure. Whoever is going to 3 pri rily duct voir dire, why don't you come up to the podium so I can hear from you and you don't ave to jump up and down.
MR. SCAROLA: We've proposed a juror questionnaire and I think that we're probably close in terms of the content of that juror 9 questionnaire.
10 THE COURT: I haven't seen it.
11 MR. SCAROLA: If we're not there already, 12 we're close in terms of the contents of that
2018-3-8 Hearing Transcript - Afternoon Session 13 questionnaire.
14 THE COURT: I haven't seen it yet, so that's a 15 bit of a disadvantage for me because this is 16 something that goes unmentioned, but certainly it 17 is my philosophy in most of the cases that I handle 18 and all of the cases when I'm dealing with 19 exceptionally competent lawyers, once voir dire is '\\•., 22 s terin e g this trial, and N t ' to cometent, p 23 experienced attorneys comes to over, there's little that the jury hears from me. tra, You are the ones who are goingy e essentially 24 stipulations.
20
21
25 And the urt as reiterated that in a recent
•
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interim order relinquishing jurisdiction on an unrelated case -- a case that goes back to 1995, actually -- and emphasize in that interim order the significance of counsel's stipulation. And so I'm here to make determinations of law, rule, where 6 necessary, but the conduct of the trial is going to 7 largely depend upon lead counsel.
8 So if you guys formulate a questionnaire of a Page 131
/cexpress 16 knowledge with regard to Epstein Rothiteip, which I think are the two broad 16 MR. SCAROLA: Well, my sugges ni)your Honor, 17 is that once the group is assembled, the Court deal 18 with hardship issues in whichever way your Honor 19 ordinarily deals with hardship issues. Anyone who 20 is not asserting a hardship for which they are 21 seeking to be excused and anyone who does not 22 23 24 Ibegories that we need to address. or
#### 2018-3-8 Hearing Transcript - Afternoon Session
9 preliminary manner that you can agree on, you got 10 it. I'm more than willing to accede to that. And 11 if that is sufficient in your view to satisfy the 12 issue of pretrial publicity, knowledge of the 13 circumstances, knowledge of any the partici 14 things of that nature that are critical 15 analysis, then that's satisfactory
THE COURT: I'm not as concerned with
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1 Rothstein particularly now as I am, as I was -- I 2 really -- I've never really been concerned with 3 Rothstein.
4 MR. SCAROLA: From my perspective, we can
5 limit it to any knowledge with regard to Epstein.
6 And I would think this is the defense's primary 7 concern as well.
8 9 million hits, apparently. THE COURT: Or Mr. There's nine A fte;
10 MR. SCAROLA: Well, that's true. n 11 those names should be made known t the ors. 12 13 14 Anyone has who recognizes those n nd anyone who hardship n questioned. remains tOA. % e n Vidually
15 with regard hers, they are given 16 questionnair ey are asked to fill out those 17 question and then they are excused for the 18 bala day. If someone survives individual 19 questioning, they're given a copy of the 20 i^ questionnaire, they fill that out, and they're excused for the balance of the day.
THE COURT: All right. So let me stop you there so I'm understanding. The questionnaire that 24 you're proposing would be after the initial issues 25 regarding knowledge of any of the participants in
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1 this case?
2 MR. LINK: That's what I envisioned, your 3 Honor. And I think Rothstein, Epstein all have to 4 be part of that dialogue.
5 MR. SCAROLA: I don't have a problJLher 6 way.
7 THE COURT: That's fine. we'll have 8 the opportunity to questio urther. If they 9 say they have heard of c 7 thstein, we will be 10 able to drill down er into that inquiry.
11 MR. SCARO sir. Anyone who has not 12 heard of a ose three people and does not 13 have s p fills out the questionnaire, leaves 14 with ns uctions to return the following morning. 15 body else is subject to individual voir dire.
16 THE COURT: I'm thinking about it the other Ae8 to come at the initial point of whether or not any 19 of these people have any knowledge of the 20 protagonists here. way, and I'm thinking the individual voir dire has
21 MR. SCAROLA: Well, it would. The only people 22 who are excused are those who have no hardship 23 concern to raise and don't know any of the three
24 people.
25 THE COURT: But the knowledge of the people
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1 has to come first.
2 MR. LINK: It does, your Honor eve the 3 sequence correct.
4 THE COURT: Because 5 non-issue. dship becomes a
6 MR. SCAROLA: fine.
7 THE COU • y? It's the degree of their 8 knowled y, that will have to be dealt with 9 firs ey have knowledge of a nature that 10 esults n an immediate cause challenge, then we no 11 1 nger have to get into any of the other issues.
\<4(S v MR. SCAROLA: But does your Honor envision two separate individual voir dires?
-4 :4 THE COURT: No. 777
> 15 MR. SCAROLA: So you would want to identify 16 everybody who has knowledge and everybody who is 17 claiming a hardship.
18 THE COURT: Has knowledge of a
2018-3-8 Hearing Transcript - Afternoon Session 19 disqualification nature. And if the grammar is
20 incorrect, forgive me for the late hour.
21 So, yes, it would be only those who would 22 be -- who would have knowledge that would subject 23 them to disqualification.
24 MR. SCAROLA: Yes, sir.
25 THE COURT: After that, I see no DE cause
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4 ) 1 I have done it bef d have had remarkable 2 results using Ch Judge Gerber's, then Judge 3 Gerber her Circuit Court, his voir dire 4 colloq rdship. It's excellent. And it is 5 one at 'ye had very, very good success 6 izing. And I have done it in a group. And the oup setting is actually better.
115
MR. SCAROLA: I agree that needs to be done in the group.
10 The bottom line is that those who survive the 11 initial screening process either because the 12 screening process is not necessary for them or they 13 have come in, been individually questioned and they 14 still qualify, those people all fill out a juror
15 questionnaire before they leave for the day and 16 they're instructed after filling out the 17 questionnaire to return the following morning.
18 THE COURT: What are you envisioning -- what 19 are you both envisioning on this questionnaire?
20 MR. SCAROLA: All of the basic information 21 that takes a long time to gather on di idual 22 basis that we won't need to gather dually; 23 demographic information, magi l s#atus, job 24 history --
f• 25 THE COURT: So youth lth kit would be better ;•
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1 /434 ith 100 -- let's use 80 as a round. number -- 80 2 ecs people it would be better -- and, Mr. Link, I 0 r .want your thoughts on the subject, too.
A÷ ; THE COURT: It would be better to give them 6 the questionnaire, have them fill it out in our 7 presence and then dismiss them for the day so that 8 you all could evaluate this information, as opposed 9 to going through the standard questionnaire that I
MR. LINK: Yes, sir.
10 have here, which is one we all use with demographic 11 12 13 14 15 16 C40t\_\_ 17 will you be a fair juror in the ca' information, the name, place of domicile, occupation, marital status, spouse's occupation, adult child occupation, prior jury service, parties to any pending or past law suits, similar criminal, knowing anyone in the courtroom -- we'll basically take that out of the equation -- and can you and
18 MR. SCAROLA: Yes. We i e all that 19 information. We request tional 20 information as well. h 1 out the 21 questionnaires, u tionnaires are gathered, 22 multiple cop' s a made, the Court has one, each 23 side ha a c or more, if they choose to order 24 them and then have a chance to look at them 25 overn t and come back the following day and focus
2 our voir dire on those questions that need to be asked.
3 4 5 THE COURT: I'd like to reserve my right to ask the fairness question, so I don't want that included in the questionnaire.
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6 MR. SCAROLA: That's fine.
7 8 9 10 MR. GOLDBERGER: Just procedurally, your Honor, I just did this in a case recently in this circuit, is close to what we did. and the procedure requested by Mr. Scarola
11 12 13 14 15 After the individual got through, th survived the cut, they then filled o C questionnaire, actually down in the r assembly room. They collected the q aires for us, they gave us the copies t, and we came back 16 the next day, and pretty well.
17 THE COURT' y. So that will be fine. So 18 what we'll uesday is the 100 people that 19 will b ed -- we'll be doing jury selection 20 in 1 36 report there at 9:30 on Tuesday 21 g -- we will go ahead and individually speak 22 to the jurors outside the presence of the remainder. I don't want to do it with the noise. As I said, that would be headache producing 25 within minutes.
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1 MR. SCAROLA: Easiest is just go into the jury 2 room.
3 4 THE COURT: I think that's the best way to do it.
5 6 7 8 9 10 11 12 13 14 15 And you'll individually question each of the panel after I have introduced everyone, qqr I've" had the opportunity to make them as c9 bte as possible and to explain what we're doing nd why - not why we're doing it, becau don't want to AVI hint at anything -- some r nize the name right off the bat -- t t cate to them that we have agreed that ,- question each of you individually a to find out only preliminary informa erning the matter at hand, and leav ty much at that.
16 17 then we'll go over with them if they have \\2 4/3"..knowledge of Mr. , Mr. Epstein or the Rothstein matter. And I think that's the better way to do it.
21 22 23 24 Obviously, the reason for my doing it, even though it has not come under attack or objection, is because I don't want the entire 100 people to be tainted by one person spouting something that may be of the nature that could arise here. So to
2018-3-8 Hearing Transcript - Afternoon Session 25 avoid that operation -- and, you know, it should be
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1 pointed out and always keep in mind the cost 2 summon people to jury service is extraordin ly 3 high, and so we don't want to waste yers' 4 money in that respect as well.
5 All right. So again, o thank and 6 commend each of you for p sentations today, 7 all that participat h directly or indirectly 8 in the present, 11 of your materials. 9 Thank you t•t •urtroom 10 our st tt ney, who's been assisting me. And I 11 wish ujll a pleasant evening. personnel, thank you to
12 13 away. I ROCKENBACH: Your Honor, you almost got just have a proposed order on the motion to stay that your Honor denied earlier, if I can approach. I gave a copy to Mr. Scarola just a 16 moment ago.
17 THE COURT: Yes. What you can do tomorrow on 18 the substantive motions -- I'll be at the Bench Bar 19 Conference and you have my permission to track me 20 down. Our schedules are posted, so you'll know
21 where I'll be. But I'll be doing the civil 22 presentations during the afternoon. There's two of 23 them. So I'll be able to be reached there.
24 MR. SCAROLA: Thank you very much, your Honor.
25 THE COURT: Thank you again. Have a gr
1 rest of the week. Thank you-again to our courtroom 2 personnel. We'll be ess.
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3 (Thereupon 4 concluded.) 5. .m., the hearing was
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3 THE STA,GrOFTLORIDA, UNTY OF PALM BEACH.
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I, Elaine V. Registered Professional Reporter, State of Flor!!!large, do hereby certify that I was authorized to and did report the above hearing at the time and place herein stated, and that it is a true and correct transcription of my stenotype notes taken during said hearing.
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I further certify that I am not attorney or 9 counsel of any of the parties, nor am I a relative or employee of any attorney or counsel of party connected 10 with the action, nor am I financially interested in the action.
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12 The foregoing certification of this transcript\
13 does not apply to any reproduction of the same by any\
means unless under the direct control and/or direction\
of the certifying reporter.
14 IN WITNESS WHEREOF, I have hereunto set my\
15 hand this 9th day of March, 2018.
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17 Elaine V. [REDACTED]\
18 Notary Public in and for the State of Florida\
My Commission Expires 03/27/21\
My Commission #GG 72248
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