IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA¶
CASE NO.: 502009CA040800XXXXMBAO¶
JEFFREY EPSTEIN,¶
Plaintiff,¶
vs.¶
SCOTT ROTHSTEIN individually, J. individually, and L.M., individually,¶
Defendant,¶
RESPONSE IN OPPOSITION TO PLAINTIFF/C C )-DEFENDANT JEFFREY EPSTEIN'S SUPPLEMENTAL MOTI PEL DISCOVERY¶
Counter-Plaintiff J. (" "), by and through undersigned counsel and pursuant to Rule 1.380 of the Flori a ivil Procedure, hereby moves this Court to enter an order denying Plaintiff/C endant Jeffrey Epstein's Supplemental Motion to Compel Discovery, and in sup rt th states as follows:¶
INTRODUCTION¶
Since the F *da S reme Court's mandate was issued on June 9, 2017, the Court has repeatedly counsel that this eight-year-old case is to be prepared in anticipation for trial. In u y 20, 2017, the Court entered its Order Specially Setting Trial, which special set this cau, number one, for a 10-day jury trial beginning on December 5, 2017.i The Court has since made itself available for numerous hearings on discovery issues and any outstanding motions that counsel chose to set for hearing.¶
The Court has since reset this cause for a 10 day jury trial beginning March 13, 2018, solely to allow the Court additional time to resolve outstanding motions in advance of the trial. See Order dated November 14, 2017.¶
During this time, Jeffrey Epstein ("Epstein") has been represented by six (6) separate law firms. These attorneys have, pursuant to their judgment on how this case should be prepared for trial, conducted discovery and engaged in extensive motion practice before the Court. By way of example, on September 25, 2017, Epstein filed his Motion to Compel Discovery Re onses from which concerned various discovery requests from 2012. At the tit ste filed his Motion to Compel regarding the 2012 discovery, he chose not to challenge- E- a s' Answers to ----- Interrogatories dated July 12, 2017, which had served on Autvt1), 2017, approximately six weeks earlier.¶
Epstein also chose not to set his Motion to Corn discovery for hearing. Epstein further declined to challenge Answers to too ries dated September 5, 2017, which were served on October 5, 2017 (two months, al). As part of counsel's litigation strategy, the last weeks preceding trial on other matters, rig of depositions, the filing of a Motion for Temporary ntinue the trial in this case indefinitely, and the filing of a Epstein instead elected to focus his ti such as the repeated scheduling Stay of Proceeding, which see spurious Motion for Sanc gainst and undersigned counsel which has no possible bearing on the tri he pending claim.¶
O case as in counsel for Epstein. In addition, Epstein has hired a "team of lawyers from the Gunster law firm as trial support."2 As is readily apparent from the numerous motions that have been filed since then, including Epstein's eve-of-trial Motion to Amend Answer and Affirmative Defenses to the Fourth Amended Counterclaim, Epstein's new trial counsel would like to drastically change 1, 2017, the law firm of Link & Rockenbach entered an appearance in this¶
2 Epstein's Motion to Continue filed November 6, 2017, at page 3.¶
the scope and tenor of this case. In essence, the actions of Epstein's trial counsel reflect either a complete misunderstanding of the fundamental nature of this malicious prosecution case or a conscious effort to attempt to transform this case into an entirely different lawsuit. But that is not the way it works when experienced litigators are hired on the eve of trial. I tead, these experienced litigators are required to accept the case preparation that was per n\ the four prior law firms that have been defending Epstein against MB malici, ution claim.¶
This brief recitation of the procedural history since the Flori Sup eme Court's mandate is important because, throughout the Supplemental Moti Compel Discovery, Epstein repeatedly claims that he "has been, and continues t iced in this counterclaim by refusal to comply with his discovery ." See, e.g, Epstein's Supplemental Motion to Compel Discovery at page 4. pr ice, however, is entirely self-inflicted by Epstein and is insufficient to overco s' proper objections to the discovery at issue. Accordingly, the Court should C e Discovery. eve-of-trial Supplemental Motion to Compel¶
MEMORANDUM OF LAW¶
Epstein's lemental Motion to Compel Discovery concerns the following discovery responses by tdwards: (1)M' Answers to Interrogatories dated July 12, 2017, filed on August 2017; (2) Answers to Interrogatories dated September 5, 2017, filed on October 5, 2017; and (3) Response to Request for Production dated September 5, 2017, filed on October 5, 2017. The Supplemental Motion also seeks to compel to answer and respond to Epstein's Expert Witness Interrogatories and Request for Production, which were served on October 13, 2017. The response date for those discovery requests, however, was¶
November 20, 2017, making it unclear as to what exactly Epstein's premature motion asked the Court to rule on. has since served formal responses to that discovery.¶
N,N ill address each discovery response in turn.¶
a. Answers to Interrogatories dated July 12, 2017, filed on Augus 11, 2017¶
On August 1 I, 2017, served his Answers to Interrogatories d u 12, 2017, in which he asserted valid objections to various interrogatories propound rds. Three (3 months later, Epstein now challenges the following objections, all of hiclyare proper.¶
Interrogatory 1: As to every individual iden Witnesses, and each category/group of wj provide with particularity the following: n your List of Trial sled thereon, please
¶
The proper name, address, telepho electronic email address or3 other means of contact for each
¶
In response, provided the rleniljtpd contact address for each witness for which had a contact address. E in insists that also provide the telephone number and e-mail address fo each ness. That, however, is not what Epstein asked for in Interrogatory #1, which es a ast of potential contact information and uses the term "or" to permit to se m the options provided.¶
2: As to every individual identified on your List of Trial es, and each category/group of witnesses listed thereon, please ide with particularity the following:
¶
Each contested factual issue expected to be addressed by the witness, including identifying with particularity as to which elements of your claim for Malicious Prosecution this witness' testimony is applicable.
¶
Unless otherwise stated, all emphasis is supplied by M.¶
In response, described the issues that each witness expected to be presented at trial would testify to, and specifically identified the element(s) of malicious prosecution claim that each witnesses' testimony would relate to. See Exhibit `B' to Epstein's Supplemental Motion to Compel Discovery. If Epstein wanted to determine the detailed subst ce of each witness' knowledge relative to these disclosures, he has for years had the o n t ubpoena witnesses for deposition who have been identified on successive witne years. This information has certainly been available long before the November discovery deadline. Since almost every one of the witnesses at issue were listed r Witness Lists filed in this case, dating back years, Epstein has had ample oppo t ubpoena these individuals for deposition, and his decision not to do so canno ted by challenging valid objections to interrogatories.¶
Interrogatory 3: As to Witnesses, and eacl provide with panic* individual identified on your List of Trial group of witnesses listed thereon, please e following:
¶
A detailed descr of the testimony expected to be presented at trial by the witne s to each contested factual issue or element of your claim against Ep
¶
In responSe, wards described the issues that each witness expected to be presented at trial would \ 4 , and specifically identified the element(s) of malicious prosecution claim tilt7t witness' testimony would relate to. See Exhibit 'B' to Epstein's Supplemental Motion to Compel Discovery. Any additional information can only be derived from live deposition testimony, which Epstein chose not to take. Moreover, to ask to provide a more detailed description of the substance of expected witness testimony would necessarily be asking counsel to disclose his work product and mental impressions as to the specific questions he intends¶
to ask, and as such, what facts and information counsel considers to be important to the case. Such disclosures are protected by the work-product privilege. See Motor Co. v. 997 So. 2d 1148, 1153 (Fla. 3d DCA 2008) (holding that opinion work product privilege extends to attorney's selection of facts and information the attorney considers important to the c ); see also, General Motors Corp. v.=, 837 So. 2d 1010, 1032 (Fla. DCA 2002 ( fin opinion work product as "the attorney's mental impressions, conclusions, opin r theories" and stating that such is protected from disclosure); State v. Rabin, 495 S 262 (Fla. 3d DCA 1986) (stating that opinion work product, i.e., the "attorney al impressions, conclusions, opinions, or theories concerning his client's case," is "absd1 fy4o nearly absolutely privileged").¶
Interrogatory 4: As to every individual idenid your List of Trial Witnesses, and each category/group of witness listul thereon, please provide with particularity the following:¶
A description of the Trial Exh umber of each exhibit expected to be introduced into evidence by s.¶
response star of August 11, 2017 (the date these Answers were filed) it was unknown as to w ' exhibits would be introduced through which witnesses. Epstein's complaint that this is n the eve of trial" is therefore severely misplaced. Although we are Il milir now on the ev o 'se ery cutoff, these Answers were filed over the summer, months before the prior D nal date. Moreover, this interrogatory is clearly seeking the mental impressions of counsel, and what exhibits counsel believes are appropriate to be introduced through each individual witness is protected by the work-product privilege. See Northup v. Acken, 865 So. 2d 1267, 1270 (Ha. 2004) (stating that personal view of attorney as to how and when to present evidence and knowledge of which witness will give certain testimony is attorney work product) (citing Surf Drugs. Inc. v. Vermette, 236 108, 112 (Fla. 1970)).¶
Interrogatory 5: As to every individual identified on your List of Trial Witnesses, and each category/group of witnesses listed thereon, please provide with particularity the following:
¶
A description of the Trial Exhibit List number of each exhibit introduced through other means about which the witness is expected to testify, together with a description of the witness' expected testimony regarding ch exhibit.
¶
Similar to Interrogatory #4 above, M' Answer stated that, bacI IS August, it was unknown as to which witness would testify regarding which exhibit n, any such trial strategy is properly protected by the work-product privilege. See id.¶
In conclusion, M . Answers to Interrogatories 12, 2017, which were served more than 3 months ago on August 11, 2017, are pro in's untimely and unsupportable Supplemental Motion to Compel should be de '¶
b. Answers to Interroga es d September 5, 2017, filed on October 5, 2017¶
Epstein's attempt to compel on the prior-filed damages interrogatories reveals a gross misunderstanding of Ed alicious prosecution claim that will be tried to a jury beginning on December t th. erEpstein apparently wants to take discovery to establish that the individual cases th wa s filed against Epstein on behalf of the minor children who Epstein had systema ra d and abused, benefited and enriched as an attorney. That, howev ter relevant nor material in this case.¶
Ins d, the jury will be asked to determine whether the underlying case that Epstein filed si aha, (wherein Epstein alleged, without a shred of evidence, that fabricated sexual molestation claims as a knowing participant in a billion-dollar Ponzi scheme and was guilty of all sorts of nefarious criminal conduct), damaged as described in the Fourth Amended Counterclaim. Epstein's underlying claims in this case alleged that "fabricated" and¶
"ginned up" his clients' sexual abuse cases in order to intentionally further Scott Rothstein's Ponzi scheme, in which was a knowing participant. Therefore, the only damage discovery that is relevant to this litigation is discovery relating to the impact of the false allegations that Epstein made against in this case.¶
Perhaps the most glaring example of Epstein's misdirection is demon challenge to Interrogatory #34: ad awaihEpstein's¶
Interrogatory 34: Please describe in detail and iderif; l with specificity every social medial outlet, website, blog [etc.] . . . or :ry_46ther printed or published media on which you, your law firm has ever advertised. referenced, or otherwise placed the name of
¶
Essentially, Interrogatory #34 sought to dete ether involvement in the separate sex abuse cases ag however, that is not what this case is abo er separate sexual abuse cases against ter of no import, as been damaged as a result of thote casesllnstead, had advertised his tein to promote practice. Again, publicized his involvement in the is not alleging that he has is alleging that he has been damaged as a result of the underlying malicious claim against him, which was brought by Jeffrey Epstein without probable c (Be in an attempt to extort and pressure the young victims to dismiss or severely m se their civil sexual abuse cases against Epstein. If this numbered interro s only seeking relevant discovery related to how often has publicized e underlying claims against him in this case on his website or through other published materials, then the answer is simply "never."¶
Epstein also suggests that "[w]hile claims he has suffered financial loss, he refuses to provide any information about any purported loss during the time in question." See¶
Epstein's Supplemental Motion to Compel Discovery at p. 9, ¶ 234. This statement is simply untrue. As part of his damage claim, contends that he suffered "the loss of value of ] time required to be diverted from [his] professional responsibilities." has already provided time records, which provide a detailed breakdown of exactly ho 4 much 03 time lost as a result of Epstein's baseless and malicious lawsuit. The j 11 resented with this evidence and will be asked to assign a value on Edwar t • e, with the understanding that could have used that time to not only p ctice aw, but also to spend time with his family and young children, pursue hobbies, or ber of other activities. Thus, the suggestion that has refused to provide any 'n related to this portion of his damage claim is simply untrue.¶
Epstein also challenges "S"Cl Sierrogatory I #32:¶
unliquidated, be en Epstein's assertion that, on the eve-of-trial, he still "seeks to understand what is claiming in this case" is without merit. Epstein sued MEI, without probable cause, and alleged that was a criminal co-conspirator who was a knowing participant in the largest Ponzi 1S er is Ily responsive and informs Epstein that the damages in this case are II be instructed that there is no exact measure for such damages and will the responsibility of hearing the evidence and returning an appropriate verdict.¶
Interrogatory 32: Ple financial loss, inclu described in your in detail, quantify and explain the ount that you contend to have suffered as ended Counterclaim, to wit:¶
[listing Edward Countercl • age claims as detailed in the Fourth Amended¶
This line of reasoning is also used to challenge MP answer to Interrogatory #36, which concerned IIME damage claim for loss of time spent defending against Epstein's malicious and baseless lawsuit.¶
scheme in the history of the state of Florida. Epstein claimed that was abusing the legal system by pursuing "fabricated" and "ginned up" sexual abuse claims against Epstein in order to advance this criminal enterprise. The damage from these salacious allegations, particularly to IM reputation, have been specifically pled in every counterclaim for malicio rosecution dating back to 2011.¶
- c. Response to Request for Production dated Septe, 017 filed on October 5, 2017.
Epstein next takes issue with M' response to Reg or Production dated September 5, 2017, which was filed on October 5, 2017.¶
Request #1: A copy of all documents any and all information requested ' providing responses to, Plain Interrogatories to Defendant/ to Damages, served conte o, or reference or include, ou referred to in any way in er-Defendant Jeffi.i Epstein's ntiff J. Relating y herewith.
¶
answer properlyAZ attorney-work product privilege. Clearly, Epstein cannot ask counsel t Went' )all documents that "relate to . . . any and all information requested in, or referred 1 'n 40,, any way" in response to Epstein's damage interrogatories. Such a request on its face s the ental impressions of counsel as to what counsel believes to be related to the answe ue. n fact, the case cited by Epstein in his Supplemental Motion to Compel Discov e I Corp. v. Palms 2100 Ocean Blvd, Ltd., 924 So. 2d 887 (Fla. 4th DCA 2006), actually cu against Epstein's argument. Specifically, the Grinnell Corp. Court stated in pertinent part as follows:¶
We quash that portion of the trial court's order directed at the response to request for production requiring that Grinnell (1) "label the documents [already produced] and support them as a broad general view," and (2) identify the pages of deposition testimony that supported various affirmative defenses. Florida Rule of Civil Procedure 1.350(b) requires that a response under the rule only produce items "as (emphasis added). Grinnell Corp. v. Palms 2100 Ocean Blvd, Ltd., 924 So. 2d 887, 895 (Fla. 4th DCA3006) S¶
adv. Epstein Case No. 502009CA040800XXXXMBAG Response in Opposition to Epstein's Supplemental Motion to Compel Discovery¶
they are kept in the usual course of business or ... identify them to correspond with the categories in the request." Going beyond what is required in the rule, the order compels Grinnell to label and classify depositions already taken and documents already produced, as they pertain to issues in the case. It was this type of order in Gardner that the supreme court disapproved in North up.
¶
Just as an attorney cannot be required to label and classify docume, e y produced to specific issues in a case, neither can counsel be required to etertlrine which documents he believes relate to Epstein's damages interrogatories, whi arty the mental workings of counsel that go well beyond what is required under t e fact that Epstein also seeks to disclose documents that h ring the interrogatories also seeks to invade the work-product privilege. In to Power and Light, 632 So. 2d 696, 697-99 (Fla. 3d DCA 1994), the court held that attorney's selection of certain documents would reveal the attorney's mental imp s r garding the relative importance of such documents and their significance as a collectio t information was protected from disclosure under the work product privilege. Similar, the identification of documents counsel believes relate to the damages irllerltRatories and to which documents counsel referred in preparing answers to such inte necessarily would reveal counsel's mental impressions regarding the relevance nd importance of such documents. Such information clearly constitutes protected opinion work product. See also Proskauerl. LLP v. Boca Airport Inc., 987 So. 2d 116 (Fla. 4'h DCA 2008) (holding that where discovery ordered would disclose to an opponent which documents counsel believed were most relevant in preparing witness for deposition, such information was protected by work product privilege).¶
Finally, Epstein challenges M' objections to Requests #2-10. For brevity, refers the Court to pages 13-16 of Epstein's Supplemental Motion to Compel Production, which list the requests at issue.¶
Request #2 seeks the personal financial information of M, which is co itutionally protected, see art. I, § 23, Fla. Const., and is wholly unrelated to the damage a jssue. See also Bd. of Trustees of Internal Improvement Trust Fund v. Educational es, 99 So. 3d 450, 457-58 (Fla. 2012) (stating that personal financial information i verable where it is not relevant to any issue in the case). As previously state s lost time claim will be established through his time records, which reveal the nt of time that spent defending against Epstein's spurious and maliciouialeg ons. That time could have otherwise been used anyway that chose to use whether playing with his children, taking time off, pursuing hobbies, or taking on other used the time he was not spending defending against Epstein's mall founded claims and, to the extent he spent that time working on other cases, how mu as paid for that unrelated time, is clearly irrelevant because that time will not be prese ltT the jury as an element of damages.¶
Similar tin discovery requests addressed above, Requests #3-10 seek discovery regarding the cases. Rather than seek discovery as to the allegations Epstein made against iltis case, Epstein seeks to uncover what is essentially file on the cases that were pursued against Epstein by his victims, LM, EW and Jane Doe. For the reasons stated previously, this discovery is irrelevant to the allegations made by Epstein in this case and is clearly protected by the attorney work-product privilege. See v. Harter, 152 So. 3d 705 (Fla. 161 DCA 2014) (quashing trial court's order compelling discovery of entire litigation file because such¶
was protected by work-product and attorney-client privilege). also notes that requests 43 and 48 seek production of documents related to the $5.5 million in settlement proceeds paid to victims LM, EW, and Jane Doe after he filed this lawsuit alleging that those claims had been fabricated by to further the Rothstein Ponzi scheme. is at a loss as t by Epstein continues to request disclosure of the settlements he paid to these victims, w • im Itaneously pursuing a Motion for Sanctions against and undersigned r purportedly breaching the confidentiality requirements of those very agreements.¶
d. Epstein's Expert Witness Discovery Dated Octobe cy 17¶
Finally, Epstein has asked the Court to prospec •it,n discovery responses that are not due until November 20, 2017. objet is ospective relief on ripeness grounds. Florida Rule of Civil Procedure 1.380 prof ' a party may move the court for an order compelling discovery if the opposing ii to answer a discovery request. cannot be said to have failed to answer t, as the answers were not yet due at the time the motion was filed. Moreover, as Epstein in his motion, had already voluntarily produced its expert's written opinion a documents utilized by the expert in reaching that expert opinion. On November 13, 2 provided formal written responses to this discovery. 0 CONCLUSION¶
Fdrl the foregoing reasons, Counter-Plaintiff respectfully requests that this Court deny Jeffrey Epstein's Supplemental Motion to Compel Discovery.¶
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve
to all Counsel on the attached list, this 15th day of Nov., 2017.¶
Florida Bar No.: 169440¶
Attorney E-Mail(s): jsx@searcylaw.com; and
mmccann@searcylaw.com¶
Primary E-Mail: scarolateam@searcylaw.com¶
Searcy Denney Scarola Barnhart & Shipley, P.A.¶
2139 Palm Beach Lakes Boulevard¶
West Palm Beach, Florida 33409¶
Phone: (561) 686-6300¶
Fax: 561-383-9451¶
Attorneys for Bradley J. [REDACTED]¶
COUNSEL LIST¶
Scott J. Link, Esq. Link & Rockenbach, P.A. Scott®Iinkrocklaw.com Kara®linkrocklaw.com 1555 Palm Beach Lakes Boulevard Suite 301 West Palm Beach, FL 33401 Phone: 561-727-3600 Fax: 561-727-3601 Attorneys for Jeffrey Epstein¶
"S C)¶
Jack A. Goldberger, Esquire jgoldberger®agwpa.com; smahoney®agwpa.com Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue S, Suite 1400 West Palm Beach, FL 33401 Phone: (561)-659-8300 Attorneys for Jeffrey Epstein Fax: (561)-835-8691 ?S'¶
Nichole J. Segal, Esquire njs®FLAppellateLaw.com; kb lateLaw.com Burlington & Rockenbach, P.A 444 W Railroad Avenue, Suite West Palm Beach, FL 33 Phone: (561)-721-0400 Attorneys for B J. Ed ards¶
J. Ed uire staffefile tice.com 425 N venue, Suite 2 Fort Lau e, FL 33301 Phone: (95 -524-2820 Fax: (954)-524-2822¶
Fred Haddad, Esquire Dee@FredHaddadLaw.com; Fred@FredHaddadLaw.com Fred Haddad, P.A. One Financial Plaza, Suite 2612 Fort Lauderdale, FL 33394 Phone: (954)467-6767¶
Fax: (954)-467-3599 Attorneys for Jeffrey Epstein¶
Tonja Haddad Coleman, Esquire tonja@tonjahaddad.com; efiling®tonjahaddad.com Tonja Haddad, P.A. 315 SE 7th Street, Suite 301 Fort Lauderdale, FL 33301 Phone: (954)467-1223 Fax: (954)-337-3716 Attorneys for Jeffrey Epstein¶
S ic Marc CO .- S. Nurik, Esquire iS 5)¶
marc®nuriklaw.com One E Broward Blvd., Suite 700 Fort Lauderdale, FL 33301 Phone: (954)-745-5849 Fax: (954)-745-3556 Attorneys for Scott Rothstein¶